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HomeMy WebLinkAboutNetzke Group 20-10-7 IN THE MATTER OF AN ARBITRATION BETWEEN SOUTH BRUCE GREY HEALTH CENTRE (“Hospital”) and ONTARIO PUBLIC SERVICE EMPLOYEES UNION (“Union”) Re: Netzke Group Grievance SOLE ARBITRATOR: James Hayes APPEARANCES For the Union Manprit Singh, Counsel Erin Netzke, Grievor Laura Matheson, Grievor Deborah Hodgins, Grievor For the Hospital Natasha Monkman, Counsel Audrey King, Director, Human Resources Drew Braithwaite, Vice President Corporate Services and Chief Financial Officer Rita O’Neill, Director, Finance Katherine MacKenzie, Manager, Finance & Purchasing Videoconference hearings were held on October 1 and 2, 2020. 2 AWARD Introduction 1. The Grievance alleges that the Hospital failed to make appropriate Hospitals of Ontario Pension Plan (“HOOP”) contributions on behalf of three employees “due to scheduling irregularities, pregnancy and parental leaves and any other events which may have occurred”. 2. The Hospital states three preliminary objections: • The Grievance is out of time under the Collective Agreement; • The Arbitrator does not have jurisdiction under expired collective agreements; • The Hospital has been prejudiced by the unreasonable delay in bringing the Grievance (laches). 3. Katherine MacKenzie and Rita O’Neill were called by the Hospital. Erin Netzke testified for the Union. The Hospital filed an extensive pre-hearing documentary brief said to consist of all relevant records that remained available. 4. I conclude that the extreme delay in the initiation of the Grievance resulting in substantial prejudice to the Hospital requires dismissal of the Grievance. Facts 5. Witness testimony disclosed no dispute as to the facts underpinning the preliminary objections. 6. The Group Grievance is brought by three long service laboratory technicians all of whom were originally employed at the Kincardine General Hospital. They continued their employment with South Bruce Grey Health Centre without interruption after a hospital amalgamation in 1998. 3 7. Ms. Netzke was hired in 1987. She began thinking about retirement planning in 2019. That led to contact with HOOP. She obtained a copy of the current HOOP Administration Manual. She was concerned that she had not received full HOOP credit as her contributory years of service did not match her eligibility years of service. 8. Ms. Netzke spoke with the other grievors. They concluded that they must not have been given appropriate credit for pension entitlement accrued during their respective maternity leaves and that an unusual scheduling arrangement had also produced an improper shortfall. Ms. Netzke contacted Audrey King, Director, Human Resources on January 2, 2019 raising questions. 9. Ms. King in turn commenced an investigation into the situation. Hospital staff conducted a search for what records remained available and also contacted HOOP. They did not have access to pre-amalgamation (pre-1998) material other than what could be derived from the Grievors’ continuing personnel files. The Hospital retains financial records for 7 years. While some payroll and other material was located, there were gaps and some apparent contradictions. No information as to previous scheduling practices was available and information concerning the Grievors’ leaves of absence was scant. 10. Ms. MacKenzie testified that the latest of the Grievors’ leaves of absence had been taken by Ms. Matheson in 2003-2004. Time sheet entries suggested that the scheduling practice for laboratory technicians ended in 2005. She explained that all HOOP members receive annual statements setting out both contributory and eligible service. She described the various audits and validation checks conducted by HOOP and required of employers. She said that, in the final analysis, she had no reason to believe that the Grievors had not received their appropriate credit for HOOP pensionable service. 11. Ms. O’Neill has held a leadership position in finance since 1983. She is currently Director of Finance for the Hospital. She was generally aware of scheduling practices at the Kincardine site and, when the issue was raised in 2019, spoke to three retired staff members about it. The practice ended in 2005 after discussions with the Union. She was unaware of any contemporaneous complaints about HOOP contributory service. Persons 4 involved with the Grievors’ leaves of absence are no longer with the Hospital. She explained how the Hospital regularly relies upon the HOOP regional representative for advice and that the Hospital had no reason to believe that the Plan had not been administered correctly in this case. She identified two other persons from the Kincardine site, with the same schedule as the Grievors, who had retired without raising the contributory service issue. She said the Hospital expects employees to raise any questions they may have, with either HOOP or the Human Resources team, after receiving annual HOOP statements. In cross-examination, Ms. O’Neill acknowledged that the Hospital had contact information for retired employees. 12. Ms. Netzke described the scheduling of Kincardine laboratory technicians over the years commencing in 1987 with changes made in 1990 and 1995/96. She explained the elections she had made concerning maternity leave. She testified that she had spoken “casually” to Human Resources in the past about HOOP credit and “they would say it’s your 35 hours” (scheduling issue). Nothing was said then about her maternity leaves: “I didn’t notice this at the time.” Collective Agreement 13. Article 8.05 Group Grievance reads: Where a number of employees have identical grievances and each one would be entitled to grieve separately, they may present a group grievance in writing through the Local Union, signed by each employee who is grieving and the Local Union President, or designate, to the CEO, or their designate, within fourteen (14) calendar days after the circumstances giving rise to the grievance have occurred. The grievance shall then be treated in the manner as set out for an individual grievance. (emphasis added) 14. Article 8.15 reads: The time limits set out in this Article are mandatory and failure to comply strictly with such time limits, except by the written agreement of the parties, shall result in the grievance being deemed to have been abandoned. 5 15. Article 8.03(a) reads: It is the mutual desire of the parties hereto that complaints shall be adjusted as quickly as possible, and it is understood that an employee has no grievance until they have first given their immediate supervisor the opportunity of adjusting their complaint. Such complaint shall be discussed with their immediate supervisor within nine (9) calendar days from the event giving rise to the grievance, or from when the employee should have reasonably become aware of the event giving rise to the grievance. Failing settlement within nine (9) calendar days, it shall then be taken up as a grievance within the nine (9) calendar days following their immediate supervisor’s decision in the following manner and sequence: (emphasis added) Labour Relations Act 16. Subsection 48(16) reads: Except where a collective agreement states that this subsection does not apply, an arbitrator or arbitration board may extend the time for the taking of any step in the grievance procedure under a collective agreement, despite the expiration of the time, where the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension. Hospital Submission 17. Ms. Monkman submits that the delays in filing the Grievance were extreme. At best, the Grievance was filed 14 years after the end of the scheduling arrangement and 15 years after the last leave of absence taken by a Grievor. At worst, the scheduling and leaves of absence, upon which the Grievance depends, date back to the mid 1990’s. 18. Anticipating the Union position, the Hospital argues that there are no grounds for the exercise of jurisdiction pursuant to ss.48(16) of the Labour Relations Act to relieve against the mandatory time limits in the Collective Agreement. Counsel canvassed each of the relevant factors identified in Greater Niagara General Hospital, 1981 CarswellOnt 1881 (Schiff), a frequently cited arbitral precedent. 6 19. Stated briefly, the Hospital argued that the extraordinary delay was the fault of the Grievors. Ms. Netzke was aware of the discrepancy between her contributory and eligible service years well before 2019 but took no steps at the time. The Grievors received Annual HOOP statements. Prejudice here may be presumed but actual prejudice has been identified. The Hospital has lost the opportunity to maintain scheduling and leave of absence records pertaining to the Grievors. It has little or no information about practices at the Kincardine site prior to the 1998 amalgamation. The Grievance does not raise a ‘continuing grievance’ as is understood in the arbitral caselaw. If there were breaches of the Collective Agreement, they were discrete and not ongoing whether or not there may have been later effects. Reference was made to the following additional authorities: City of Hamilton, 2010 CarswellOnt 11485 (Surdykowski); Fiddick’s Nursing Home, 2000 CarswellOnt 9139 (Goodfellow); Renfrew County & District Health Unit, 2013 CarswellOnt 12621 (Parmar); Greater Essex County District School Board, 2011 CarswellOnt 12118 (Snow); Corporation of the City of Thunder Bay, 2000 CarswellOnt 9544 (Marcotte); Algoma Steel Inc., 2006 CarswellOnt 10834 (Solomatenko); Re Parking Authority of Toronto, 1974 CarswellOnt 1372 (Adell); Memorial University of Newfoundland, 2018 CarswellNfld 190 (Outhouse); Four Counties Hospital, 2010 CarswellOnt 5894 (Goodfellow). 20. The Hospital also submitted that the Arbitrator lacked jurisdiction to engage with a dispute that arose under prior collective agreement and set out a further argument based on the equitable doctrine of laches. This latter submission largely echoed its previous timeliness position. Reference was made to the following authorities: Goodyear Canada Inc. (1980), 28 L.A.C. (2d) 196 (M.G. Picher); Re Huntsville District Nursing Home, 2002 CarswellOnt 9931 (Lynk); Rougemont Carpentry, 2009 CarswellOnt 10261 (Surdykowski); Extendicare (Canada) Inc., 2004 CarswellOnt 6393 (Harris); Wabi Iron & Steel Corp., 2009 CarswellOnt 6535 (Marcotte); National Gallery of Canada, 2016 CarswellNat 8205 (Slotnick). 7 Union Submission 21. Ms. Singh emphasized the importance of pension entitlement to the Grievors. While accepting that the Grievance was a group grievance, she argued that the time limit issue should be considered through the lens of Article 8.03(a). Therefore, she said the Grievance was not out of time. It was pursued diligently as soon as Ms. Netzke reviewed the HOOP Administration Manual and learned that she had a claim. Only then could it be said that she became “aware of the event giving rise to the grievance”. In any event, it was a continuing grievance. Reference was made to: Religious Hospitallers of St. Joseph, 1992 CarswellOnt 1251 (Stewart); Dominion Glass Co. 1972 CarswellOnt 1509 (Reville); Blue Mountain Pottery, 1973 CarswellOnt 1556 (Johnston); Ontario (Minister of Correctional Services, 1990 CarswellOnt 829 (Div.Ct,); Ontario (Fazakas et al), 2006 CanLII 17663 (ON GSB); OPSEU (Fudge) v. LCBO, 2000 CanLII 20562 (ON GSB). . 22. In the alternative, the Union submits that there are reasonable grounds for the Arbitrator to relieve against time limits. Counsel reviewed the factors set out in Greater Niagara General Hospital also. She reiterated the significance of the Grievance to the Grievors and noted that a substantial number of records had been retained. Contact information for previous employees had been retained. There is no issue of bad faith here. Ms. Netzke had acted reasonably when she accepted the Hospital’s assurance that all was in order years previously. The length of any delay is but one of a number of factors for an arbitrator to consider in cases of this kind. Reference was made to: Becker Milk Co., 1978 CarswellOnt 885 (Burkett); Ontario (Minister of Health and Long Term Care), 2002 CanLII 45745 (ON GSB); Ontario Clean Water Agency, 2001 CanLII 25773 (ON GSB); OPSEU (Robbins) v. LCBO, 2015 CanLII 36165 (ON GSB); Switzer v. CAW, [1999] O.L.R.B. Rep 757; Reasons and Conclusion 23. The motion may be determined without reference to the Hospital’s separate submissions concerning laches and arbitral jurisdiction relating to previous collective agreements. 8 24. Notwithstanding the thoughtful argument presented by Union counsel, the Grievance must be dismissed as untimely for the following reasons that may be stated quite succinctly. 25. First, the Collective Agreement contains mandatory time limits and Article 8.05 speaks to those applicable to Group Grievances. It requires action by grievors within 14 days after the circumstances giving rise to the grievance have occurred. In this case, the delay relied upon by the Hospital is so lengthy that there is no need to settle upon what the appropriate trigger date(s) might have been in the first place. 26. Ms. Netzke accepts that she received Annual Statements from HOOP. She was alert to the pensionable years of service issue long before 2019 and asked questions of Human Resources at some point many years ago. While she did not say when or with whom she spoke, she did say that she accepted advice that all was in order. Nothing further was done. 27. In these circumstances, I am unable to accept that a grievance filed in 2019 could be timely regardless of whether Article 8.03(a) or 8.05 is considered. If the circumstances giving rise to the Grievance arose at the time of the leaves of absence or the unusual scheduling arrangement, the delay may be measured in decades. If employee receipt of Annual Statements is preferred, the delay still amounts to years. I cannot accept, in these circumstances, that the time to grieve only commenced to run when Ms. Netzke consulted the HOOP Administration Manual. Ms. Netzke fairly acknowledged that she was busy with her family and that retirement seemed a long way off when the question first occurred to her. Ms. Netzke knew or ought reasonably to have known about the occurrence that gave rise to the Grievance long before 2019. The other two Grievors gave no evidence at all. 28. Second, the Grievance is not of a continuing nature. The alleged breaches related to either improper allocation of pensionable service to leaves of absence or scheduling arrangements. The latest of these events occurred 14 years prior to the filing of the Grievance. There is a rich body of arbitral caselaw concerning ‘continuing grievances’ and there is no cause here to embark upon what would be an unnecessary review thereof. 9 29. Memorial University, supra, is instructive. In that case, the grievor’s accrual of pension service was reduced following a return to work on a 50% basis. Arbitrator Outhouse concluded that all else flowed from that alleged breach. Consistent with the jurisprudence, he concluded that there was no recurring breach, only recurring losses from the alleged breach. I agree with his analysis and adopt his conclusion. The facts of that case resonate with the Grievance at issue here. Everything relating to the Grievance flowed from the leaves of absence and scheduling arrangements relating to the Grievors between 1987 and 2005. But the Grievance was filed in May 2019. 30. Third, the requirements of ss.48(16) of the Labour Relations Act for an arbitrator to relieve against time limits are not met. 31. I accept that the Grievance raises a concern that may only be regarded as significant, one that an arbitrator should be slow to decline to hear, Pensions are important, obviously, to all employees. Ms. Netzke did the right thing in asking questions of HOOP and her employer in 2019. She did the right thing in asking questions of Human Resources some years before that. However, the matter should have been pursued long before 2019 if she had remained concerned. I am unable to conclude that the Grievors have provided a reasonable explanation for their failure to act much earlier. Only Ms. Netzke gave any explanation at all. 32. The Hospital also did the right thing. Senior staff conducted a diligent search of all the records in the possession of the Hospital and followed up with HOOP. All of that material was provided to the Grievors and the Union in the course of this proceeding. It should be emphasized that this effort has not caused the Hospital to doubt that the Grievors were treated properly, according to HOOP, throughout. Given the audits that are routinely undertaken, the Hospital finds it extremely difficult to conceive that multiple maternity leaves for all three Grievors over many years would have been mishandled. 33. Be that as it may be, while relevant information was located, the evidence discloses substantial prejudice to the Hospital given the passage of time that has occurred since the 10 events underlying the Grievance. The Hospital does not have pre-amalgamation documents. Nothing has been retained about the scheduling of the laboratory technicians back into the 1990’s. Documents relating to the Grievors’ maternity leaves are fragmentary. Financial records are not retained after 7 years. Management personnel have retired. Even should the Hospital be able to contact them, inevitably, memories will have faded. I have no difficulty in concluding that the Hospital will be substantially prejudiced should it be required to defend the Grievance as to actions taken at various points in time between 14 and approximately 30 years earlier some of which involved a predecessor employer. 34. The Grievance is dismissed. Dated at Bracebridge, this 7th day of October, 2020. James Hayes