HomeMy WebLinkAboutSalim 20-03-19IN THE MATTER OF AN ARBITRATION
Pursuant to the Labour Relations Act, R.S. 1995
BETWEEN:
PETERBOROUGH REGIONAL HEALTH CENTRE
(“Employer”)
- and –
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 373
(“Union”)
(Grievance of M. Salim)
AWARD
SOLE ARBITRATOR: Jasbir Parmar
On Behalf of the Employer:
Raquel Chisholm, Counsel, Emond Harnden LLP
Courtney MacDonald, Strategic Labour Relations Lead
Laura White, Manager, Laboratory Services
Robin Warren, Human Resource Student
On Behalf of the Union:
Allison Vanek, Grievance Officer, OPSEU
Hilarie La Fave, President, Local 373
Pauline Sherman, Chief Steward, Local 373
Munther Salim, Grievor
This matter was heard on February 24, 2020, in Peterborough, ON.
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BACKGROUND
[1] I have been appointed to determine the grievance of Munther Salim. The grievance
alleges that the Grievor’s employment was wrongfully terminated and that he was
wrongfully denied long-term disability (LTD) benefits.
[2] This decision addresses a preliminary motion by the Employer seeking to have the
grievance dismissed on the basis of timeliness. Specifically, the Employer submits the
Grievor exceeded the time-limit for the filing of a grievance.
[3] The Grievor has been employed with the Employer as a medical laboratory technician
since 2008. In and around October 2017, he commenced a leave of absence due to
illness. After exhausting his short-term disability benefits, he was approved by SSQ
Insurance for LTD benefits effective May 11, 2018. On January 9, 2019, SSQ sent the
Grievor a letter, via email, advising his LTD benefits were being terminated effective
December 31, 2018. The letter referred to a lack of continuous physician care and a failure
to comply with a vocational rehabilitation program.
[4] On the morning of January 11, 2019, the Grievor left the country for Jordan for two months.
Later that same day, unaware of the Grievor’s travel plans, the Employer wrote via email
to the Grievor, advising him that, given the cessation of his LTD benefits, he was now on
an unapproved absence. He was directed to contact the Employer and advise whether
he intended to appeal. Ultimately, having received no further communication from the
Grievor, on February 13, 2019, the Employer terminated the Grievor’s employment, on the
basis of Article 10.09, a deemed termination provision. The Grievor returned to Canada
on March 9, 2019. The grievance was filed on April 30, 2019.
RELEVANT COLLECTIVE AGREEMENT PROVISIONS
[5] Article 8.03(a) and (b) of the collective agreement state:
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a) 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
she has first given her immediate supervisor the opportunity of adjusting her
complaint. Such complaint shall be discussed with her 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
her immediate supervisor's decision in the following manner and sequence: …
[emphasis added]
b) The employee must submit the grievance through the Local Union, signed by the
grievor and the Local Union President, or designate, to the Chief Executive
Officer (CEO) of the Hospital, or designate, with a copy to the immediate
supervisor. The employee may be accompanied, if she so desires, by her union
steward. The grievance shall identify the nature of the grievance, the remedy
sought, and should specify the provisions of the Agreement which are alleged to
have been violated.
[6] Article 8.15 states:
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.
[7] Article 15 deals with sick leave and long-term disability. Articles 15.04 states:
a) Any dispute which may arise concerning an employee's entitlement to short-
term or long-term benefits under HOODIP may be subject to grievance and
arbitration under the provisions of this Agreement.
b) If a claim for long-term disability is denied, the employee must fully comply with
the carrier's Medical Appeal Process prior to filing a grievance, provided that the
Process is completed within ninety (90) days of its inception, unless that time is
extended by mutual agreement of the Hospital and OPSEU.
EVIDENCE
[8] Two witnesses testified: the Grievor and Hilarie La Fave, the president of the local union.
[9] The Grievor testified he made plans to travel to Jordan, to visit and take care of his
seriously ill mother, who was unlikely to recover. He also stated that he intended to seek
alternative medical treatment there while his wife was taking some educational courses.
In December 2018, he advised SSQ that he would be out of the country for a few months.
He did not inform the Employer. He left on January 11, 2019.
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[10] The Grievor testified that he was staying with relatives in Jordan and did not have
internet access. On February 2, he attended at an internet café and checked his emails.
At that time, he learned for the first time of the termination of his LTD benefits , having
cancelled his internet service a few days before he left. On February 2 he also became
aware of four other emails. Two emails were from Ms. Aubrey Curtis, Human Resources
Consultant with the Employer, dated January 11 and 30, advising that he needed to
contact the Employer by February 1, 2019 as they would be making a decision with respect
to his status with the Employer. Two other emails were from Ms. La Fave, the president
of the local union, dated January 24 and 31, offering assistance, advising there were time-
limits for appealing the benefits denial, and encouraging him to contact the Employer to
avoid the termination of his employment.
[11] The Grievor testified that he was shocked and depressed upon learning of these
emails. He stated that he was dealing with his mother’s issues and did not expect this to
happen during this very hard time. There is documentary evidence that on February 2 the
Grievor wrote via email to both SSQ and Ms. La Fave. In both those emails, he advised
that this was an “injustice” and he would be returning from Jordan at the end of February
2019, suggesting he would then deal with these “human rights” issues.
[12] The Grievor testified that he also emailed Ms. Curtis on February 2, but that he
was unable to find a copy of the email. He also testified that he telephoned Ms. Curtis
the following day, and left a message that he was overseas and would be returning at the
end of February. From the termination letter, it would appear the Employer had no record
of any email or telephone message. However, Ms. La Fave did send an email to Ms.
Curtis on February 4, advising she had communicated with Mr. Salim and it was the
Union’s understanding that he would be disputing “this leave and the denial of LTD
benefits”.
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[13] The Grievor testified that he did not check his emails again after February 2
because his mother was so ill that he “emotionally couldn’t”. The Grievor testified that his
mother passed away March 2. He returned to Canada on Saturday, March 9. It was on
his return that he accessed his emails and learned of the termination.
[14] The Grievor testified that on Monday, March 11, he contacted SSQ and advised
he was appealing. Also on that Monday, the Grievor testified, he attended at the Hospital
to see Ms. Curtis but was advised by the receptionist that she was unavailable. The next
day he attended again and asked to speak to Kate Boucher, an individual from Human
Resources with whom he was familiar. It is unclear what he discussed with Ms. Boucher,
but the Grievor did testify that Ms. Boucher advised him to speak with his union
representative. He testified that it took a few days for him to reach his steward, and she
suggested he speak with Ms. La Fave. He testified that he then went to the hospital to
speak with Ms. La Fave, and it took a couple weeks to speak with her. He testified that
when he did connect with her, he explained his situation to her. He testified that he was
concentrating just on appealing the SSQ decision in order to reinstate his LTD benefit. He
testified that he then waited to hear from the Union as to when to come to sign the
grievance. Ultimately, he did that at the end of April. The Grievor’s evidence was quite
vague and unclear about both the timing and the content of his communications with the
Union following his return to Canada. He testified that he did not know that time was
critical, and that he wasn’t advised that he had to “file a grievance now”. When asked
whether he knew he had missed the deadline for filing a grievance, he stated “I assumed
I’m okay”.
[15] Ms. La Fave testified that, on February 15, having received a copy of the
termination letter, she again emailed the Grievor, encouraging him to contact the Employer
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and SSQ, specifically quoting from Article 8.03 which sets out the time-limit for filing a
grievance.
[16] Ms. La Fave testified that she could not recall when she first heard from the
Grievor upon his return to Canada but thought it may have been in April. She stated that
she was on vacation the first week of April, and on returning learned from the vice-
president that the Grievor had left two voicemails. The vice-president had returned the
messages but had been unable to reach him. Ms. La Fave then tried to call him. She
stated they played telephone tag for some time but ultimately communicated on at least
two occasions, one by telephone and in person. She stated this then led to the signing of
the grievance. Ms. La Fave stated she could not recall exactly when she spoke or met
with the Grievor, or exactly what was discussed. However, she acknowledged that it was
unlikely she advised him there was no need to worry about timelines, and that it was more
likely that she told him that he needed to act quickly.
[17] While no witnesses testified on behalf of the Employer, the parties stipulated that
Ms. Curtis left her employment with the Employer in late April, before the grievance was
filed, and that the Grievor’s manager left his employment with the Employer in August.
ANALYSIS
[18] There is no dispute that the timelines in the collective agreement for the filing of a
grievance are mandatory. However, there is also no dispute that, pursuant to section
48(16) of the Ontario Labour Relations Act, I have the jurisdiction to extend the time for
the taking of a step in the grievance procedure, if there are reasonable grounds for the
extension and the opposing party will not be substantially prejudiced. It is well-established
in the jurisprudence that the following factors should be considered by an arbitrator in the
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course of exercising her discretion under this provision (see Greater Niagara General
Hospital and ONA, 1981 CarswellOnt 1881:
i) The nature of the grievance
ii) Whether the delay occurred in initially launching the grievance or at some later
stage;
iii) Whether the Union was responsible for the delay;
iv) The reasons for the delay;
v) The length of the delay;
vi) Whether the Employer could reasonably have assumed the grievance had been
abandoned.
[19] Article 8.03 indicates that the timelines for the filing of a grievance run from the
event giving rise to the grievance or from when the employee should have reasonably
become aware of that event. As there are two separate actions grieved in the grievance,
the termination of employment and the denial of LTD benefits, the timeliness of grieving
each of these actions must be considered separately.
[20] With respect to the denial of LTD benefits, Article 8.03 must be considered in light
of Article 15.04(b), which states that an employee must first comply with the insurance
carrier’s medical appeals process prior to filing a grievance concerning a denial of LTD
benefits. The SSQ letter of January 2019, advising of the termination of LTD benefits,
indicates the Grievor could file an appeal of this decision within three months; and that if
SSQ did not then change the decision the Grievor would be offered the medical appeals
process for final resolution of the claim by SSQ.
[21] In the present case, the Grievor did appeal the January 2019 decision to terminate
his LTD benefits. On May 2, 2019, the appeal was denied by SSQ, and the Grievor was
then invited to, and did, initiate the medical appeals process. That was denied by letter
dated October 4, 2019. In other words, the Grievor complied with the SSQ’s appeal
process, by filing his appeal on March 11, which was within the three-month window for
filing such an appeal. While the appeals process, including the medical appeals process,
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was not completed for several months, as the grievance was filed on April 30, within 90
days of the Grievor commencing the appeals process, it cannot be said the grievance with
respect to LTD benefits was filed beyond the time-limit provided in the collective
agreement.
[22] With respect to the termination of employment, the Employer sent the Grievor the
termination letter via an email on February 13, 2019. The Employer submitted that the 9-
day clock should commence on that date. While the Grievor did not actually receive the
termination letter on that date, the Employer submitted that he should have checked his
emails after February 2 given the Employer’s earlier communications, as well as the
Union’s emails, that it was necessary he contact them.
[23] Regardless of what happened before February 13, in my view, it was
understandable that the Grievor did not take the steps required to check his email during
the period from February 13 to early March, given his emotional condition in light of dealing
with his mother’s illness during the last few days of her life and the fact that accessing his
emails required a special trip to an internet café. For clarity, my finding in this respect
does not include any determination about the reasonableness of the Grievor’s conduct at
any time before February 13. Given his personal circumstances February 13 onwards, I
find that the 9-day clock for the purposes of Article 8.03 should commence on his return
to Canada on March 9.
[24] There is no doubt that the Grievor did not file the grievance challenging his
termination within the 9-day period following March 9. While the evidence indicates the
Grievor was engaged in communicating with the Union to address his issues resulting
from the cessation of his LTD benefits, there is little by way of meaningful explanation
about why it took from March 11 to April 30 for the Grievor to file the grievance. There
was reference to a delay of a few days in first hearing back from his steward and then
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some days in connecting with Ms. La Fave, but there was no real explanation of why it
took seven weeks for the grievance to be signed and submitted. There is nothing in the
evidence that suggests that it was the Union that was responsible for the delay. To the
contrary, since early January Ms. La Fave had been offering assistance to the Grievor,
emphasizing the importance of acting quickly. In fact, contrary to the Grievor’s assertion,
he had been expressly informed in writing by the Union of the specific time-limit for filing
a grievance. In light of those communications, it is unlikely that the Union did anything, in
the course of any communications with him in March/April, to suggest to the Grievor that
he did not need to act quickly to file a grievance with respect to his termination. If anything,
despite the vagueness of the evidence as to what actually occurred between March 11
and April 30, the evidence suggests it is more likely the Grievor who was not acting quickly.
He acknowledged that his focus at this time was filing an appeal in respect of the LTD
benefits. There was nothing in his evidence which suggests he was making his best effort
to connect with the Union to file the termination grievance as soon as possible, or that he
viewed that as an urgent matter. There is also no evidence upon which it could be
concluded that his assumption that “I’m okay” had any reasonable foundation.
[25] That said, all the circumstances of the case must be considered in deciding to
exercise arbitral discretion under section 48(16). This is a termination grievance, a type
of grievance that favours an extension given the magnitude of the consequences which
flow from the grieved conduct: see Becker Milk Co. v. Teamsters, Local 647, 1978
CarswellOnt 885. While the Employer suggested that this grievance should be viewed as
less serious because the discharge in this case arose from an administrative application
of the deemed termination provision in the collective agreement, the consequences of the
termination are equally significant to the Grievor. If he is unable to pursue this grievance,
he will lose his opportunity to challenge the termination of the job he has held for over a
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decade. Such a consequence is even more significant for an individual, like the Grievor,
who is asserting an inability to work due to illness, which will naturally impact his ability to
secure alternate employment. Furthermore, the delay, even though it was in the initial
stage of the grievance process in this case, was only seven weeks. Although well-past
the 9-day limit in this collective agreement, it is not as long as the several months which
one often sees in the jurisprudence when extensions are not permitted for discharge
grievances. As for whether the Employer could reasonably have assumed the Grievor
was abandoning his right to challenge the termination, I do not accept the Union’s
argument that the Employer would have been alerted to the fact the Grievor was interested
in challenging his termination through his conversation with Ms. Boucher. After all, there
is no evidence about what was actually discussed during that conversation, other than
that Ms. Boucher advised the Grievor he speak with the Union. However, it is notable that
from the Employer’s perspective the Grievor had been out of the workplace since October
2017 and that, for some reason, he was not in communication with the Employer. In such
circumstances, it is not obvious that a period of a few more weeks of silence could only
reasonably mean he had abandoned his right to grieve the termination. Again, my finding
on this issue does not include any determination about the Grievor’s conduct in any
respect before February 13. Lastly, the evidence does not suggest that the Grievor took
no steps during this period. By mid-March, he had connected with his steward, and then,
albeit clearly not as quickly as he should have, pursued the Union’s assistance.
[26] I also find the evidence does not suggest that there has been substantial prejudice
to the Employer as a result of the delay of seven weeks. While Ms. Curtis left her
employment with the Employer in late April, and the Grievor’s manager left his
employment in August 2019, the Employer is essentially in the same position as it would
have been, in terms of presenting its case, if the Grievor had filed his grievance in mid-
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March. This is not a case where the delay has meaningfully altered the Employer’s ability
to present its case. There is no suggestion any critical evidence has been lost by the fact
Ms. Curtis left her employment a few days before the grievance was filed.
[27] In all the circumstances of this case, I find it is appropriate to exercise my discretion
to extend the time-limits for the filing of the grievance challenging the termination.
DISPOSITION
[28] The Employer’s preliminary motion is dismissed. The hearing on the merits of the
grievance, in respect of both the termination and the LTD benefits, shall proceed.
Dated this 19th day of March, 2020.
“Jasbir Parmar”
___________________
JASBIR PARMAR