HomeMy WebLinkAboutGiorgoudakis 18-01-04BETWEEN:
IN THE MATTER OF AN ARBITRATION UNDER
THE ONTARIO LABOUR RELATIONS ACT
ALCOHOL AND GAMING COMMISSION OF ONTARIO
("the Employer")
AND
ONTARIO PUBIC SERVICE EMPLOYEES UNION
("the Union")
GRIEVANCE RE HELEN GIORGOUDAKIS
Grievance No. 2015-0565-0004
AWARD
ARBITRATOR: BARRY STEPHENS
EMPLOYER COUNSEL: KIMBERLY D. PEPPER, Hicks Morley Hamilton Stewart Storie
UNION COUNSEL: ALISON NIELSEN-JONES, Grievance Officer, OPSEU
HEARINGS HELD IN TORONTO ON JUNE 27, 2017
Introduction
[1] The case involves the denial of Short Term Income Protection (STIP) and failure
to accommodate related to a pregnancy leave that started in late 2014. The employer
raised a preliminary objection that the grievance was untimely.
Evidence
[2] The time limits for filing grievances are contained in Article 10.02 of the
collective agreement, which reads as follows:
10.02 (a) It is the mutual desire of the parties that complaints of employees be resolved as
quickly as possible and it is understood that if an employee has a complaint, the
employee shall discuss it with the employee's immediate supervisor within
twenty (20) days after the circumstances giving rise to the complaint have
occurred or have come or ought reasonably to have come to the attention of the
employee in order to give the immediate supervisor an opportunity of adjusting
the complaint.
(b) If any complaint or difference is not satisfactorily settled by the supervisor within
ten (10) days of the discussion, it may be processed within an additional ten (10)
days in the following manner:
Step # 1
The employee and the Steward may present the grievance to the immediate
supervisor.
[3] The parties agreed that the timeline related to the filing of the grievance was as
follows:
October 1, 2014 Grievor commences sick leave
October 17, 2014 Moreau Shepell (the administrator) advises STIP claim is not
supported
- Grievor appeals
November 19, 2014 Shepell advises employer that appeal denied
November 20, 2014 Lori Bailey speaks to grievor
January 11, 2015 - @11:30 p.m. grievance form emailed to employer
[4] Lori Bailey is the Director of Human Resources. She testified she spoke to the
grievor on November 20 to advise her that her appeal with respect to her STIP claim and
accommodation had been rejected by Shepell. During the conversation, Bailey outlined
what she thought were the grievor's options, and these she confirmed in a follow-up
email. Bailey testified the grievor did not advise her that she would return to work, only
that she would consider the options and get back to her. Bailey stated that the grievor
did not mention that she would file a grievance, nor did she ask about time lines for
doing so. As far as Bailey was aware, the grievor had no direct contact with the
employer from November 20, 2014, until the date the grievance was filed, i.e. on
January 11, 2015.
[5] Bailey stated that Linda MacKinnon was the chief steward for the OPSEU local,
and had been in a leadership role with the union for many years. Unfortunately, during
this period of time, she became ill and has since passed away. MacKinnon sent Bailey an
email on November 28 asking a number of questions about the grievor's maternity
leave. Bailey testified that she did not understand MacKinnon to have "clearly stated"
that the union and the grievor had ongoing objections to Shepell's decision, and that
McKinnon had merely raised general issues with respect to accommodation.
[6] Bailey had been ill during this time, and had not responded to the November 28
email. Another union representative, Lorraine Simpson, contacted her on the morning
of December 10 to ask for her response to the November 28 correspondence, and to ask
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whether the employer would be willing to pay the grievor directly, to which Bailey
responded that she did not see how that was justified given the medical information the
grievor had provided. Simpson also raised the issue of alternative accommodation
schedules, which Bailey stated the grievor had previously rejected. She understood that
Simpson was going to discuss the alternative schedule with the grievor and get back to
her.
[71 Bailey testified that between November 20 and January 11 she received no
indication from the union that a grievance would be filed. During this time, the parties
were in collective bargaining, and the issue was not raised during those meetings. In
addition, she confirmed that the union made no request for an extension of time limits,
and provided no explanation for the delay.
[8] In cross-examination Bailey agreed that on November 21, 2014 the grievor had
sent her an email requesting that Bailey provide her with a copy of the documentation
from Shepell related to the reasoning for the denial, although Bailey did not follow-up
on the request. Bailey also confirmed that she was aware that the grievor was giving
birth in late December and that there were medical complications associated with the
pregnancy.
[9] The grievor, Helen Giorgoudakis, testified that at no time had she indicated to
the employer that she considered the matter of her STIP or accommodation to have
been resolved. She described the medical issues related to her pregnancy and testified
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that the problem caused her considerable anxiety because she knew someone who had
lost a child as a result of the same condition. She stated that, given this, she was not in
a "mindset" to deal with workplace. issues during the time, given that her main focus
was to remain calm, reduce her stress levels and prepare for the delivery.
Employer Submissions
[10] The employer argued that the grievance was filed out of time, and that I have no
jurisdiction to hear the merits. The employer submitted that the events related to the
grievance crystallized on November 20, 2014 when Bailey advised the grievor that
Shepell had rejected her appeal, and that both her sick leave and her request for
accommodation had been denied. Bailey offered her various options at that time.
[11] The employer's first position is that the grievance was not properly processed,
because there was no discussion with the supervisor as required by Article 10.01(a).
The employer argued that the discussion between Simpson and Bailey on December 10
did not fulfill this requirement, as it was general and not specific to the grievance. Given
this timeline, the grievance would have to have been properly processed within twenty
working days from November 20, that is by December 18, 2014.
[12] The employer argued that, in the alternative, if I were to find that the discussion
between the Simpson and Bailey on December 10, 2014 served as the required
discussion with a supervisor under Article 10.02(a), at best the grievance should have
been filed ten working days later, by December 29, 2014.
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[13] The employer further submitted that the time limits were mandatory, that
Article 10.14 stipulated that no grievance can be processed to arbitration if it has not
gone through the proper procedure, and that Article 10.18(b) allows for the extension of
time limits only by written agreement of the parties.
[14] In reviewing the principles set out in the arbitral jurisprudence, the employer
argued that the relatively unimportant nature of the grievance argues against extending
the time lines, that the seven -week delay was considerable, that the employer raised its
timeliness objection as soon as possible, and that the union has failed to provide a
reasonable explanation for the delay. The employer also relied on the submission that
the union failed to ask for an extension of time limits, as stipulated by Article 10.18(b).
The employer conceded that it would be "stretch" to argue there had been substantial
prejudice caused by the delay, but argued that the delay prevented the employer from
requesting a timely Independent Medical Examination (IME), which would impact the
employer's defence in the event the hearing proceeded to the merits.
[15] Given all of these considerations, the employer argued the grievance should be
dismissed as being untimely.
[16] The employer relied on the following authorities: Toronto Humane Society,
[unreported, Hinnegan, January 13, 2005]; Humber College, [1992] CarswellOnt 6317
(H.D. Brown); Greater Niagara General Hospital, [1981] CarswellOnt 1881 (Schiff);
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Metropolitan Separate School Board, [1991] CarswellOnt 6400 (Brent); Toronto East
General, [1980] CarswellOnt 1250 (Palmer); Kitchener -Waterloo Hospital, [1994]
CarswellOnt 1324 (Brown).
Union Submissions
[17] The union agreed that time limits are mandatory under the collective
agreement. However, the union asserted, there were very compelling reasons why the
grievance was not filed within the time limits. The grievor was not well, she was about
to give birth, and the baby was born. Around the same time, the chief steward was also
unwell, and she had been guiding the grievor through the grievance process. Finally,
these events took place during the Christmas/New Year holiday season. Despite all of
these factors, the grievor was able to sign the grievance, with the assistance of her
union representative, who literally took the grievance form to the grievor's bedside to
get her signature.
[18] The union agreed that the matter in dispute between the parties crystalized on
November 20, 2014, when the grievor was informed of the denial of her STIP and
accommodation. The union rejected the employer's earlier timeline, reasoning that
there was no "employee/supervisor" issue to be discussed, given that the dispute was
directly with Shepell and the employer's HR department was directly involved. The
union also argued that the employer had waived any basis for such an argument, given
that it was not raised prior to the arbitration hearing.
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[19] The parties continued to discuss the issue at the union and HR department level
until December 10. It was clear from the evidence, the union submitted, that the
parties specifically discussed the grievor's case on December 10, including the possibility
of resolving the matter on the basis of the employer paying the grievor wages directly
and an alternative accommodation plan. Given that the parties had continued to
discuss the matter up until December 10, the deadline for filing a grievance was
December 29, 2014. This meant that the grievance was filed eight days late.
[20] The union argued that this was an appropriate case to exercise the discretion
under s. 48.16 of the Ontario Labour Relotions Act (OLRA) to extend the time limits. The
provision stipulates such time lines can be extended where the arbitrator is satisified
that there are reasonable grounds upon which to do so, and where the other party is
not "substantially prejudiced." The union noted that the parties have not agreed to
exclude the operation of s. 48.16. The grievor had been diagnosed with a medical
condition that threatened her baby. She testified movingly about the stress this caused
her. Even the late stages of a normal pregnancy would have caused some difficulty in
dealing with other issues, but given the circumstances, the grievor was in no position to
consider the filing of a grievance in the days before and after the birth of her child.
[21] The union submitted that there was no reasonable basis to argue that there was
prejudice to the employer. The liability was restricted to a fixed period, and would have
been the same no matter when the grievance was filed. On the other hand, the
grievance raises important issues of potential discrimination, since it involves the denial
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of accommodation. There was no evidence, the union argued, that the delay would
have impacted the evidence that would be called with respect to the merits. The length
of the delay was not one that would lead to the conclusion that the grievor had
abandoned the grievance. Given the above submissions, the union argued, the
employer's timeliness motion should be dismissed.
[22] The union relied on the following authorities: Toronto Humane Society,
[unreported, Hinnegan, January 13, 2005]; Ontario Clean Water Agency, [unreported,
Johnston, GSB No. 1111/99, March 19, 2001]; Greater Niagara General Hospital, [1981]
CarsweilOnt 1881 (Schiff); Becker Milk Company (1978), 19 LAC (2d) 217 (Burkett).
Conclusion
[23] The first issue is at what point the 'clock started ticking' with respect to the filing
of the grievance. There are two scenarios, and I am persuaded that the later date,
December 10, 2014 is most appropriate. There were email exchanges between Bailey
and the grievor following the November 20 discussion that, in my opinion, clearly left
the grievor's response open-ended. Bailey laid out the options for her. The grievor
followed up by, among other things, asking for the Shepell documentation regarding the
denial, indicating that she was considering pursuing the issue. Further, the union email
of November 28 posed a number of questions regarding the grievor's maternity leave,
but also clearly stated that it was doing so in the context of not having yet finalized the
email exchange that occurred earlier in November. In my view, it was clear from this
exchange that the grievor and union were keeping the issues from the November
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exchange alive pending a final decision, and this included the reasons for the denial by
Shepell. Moreover, when Simpson contacted Bailey on December 10 to follow up on
the November 28 email, she specifically proposed two steps the employer could take to
deal with the STIP and accommodation issues. I conclude that the matter of the
grievor's STIP and accommodation was a live issue of discussion between the parties up
to December 10, 2014. 1 accept the union's submission that it would be unduly pedantic
to suggest these discussions were inappropriate because they did not take place with
the grievor's direct supervisor. The issue had moved beyond that level to Shepell and
the HR department, and that was the appropriate forum for the discussion to take pace.
This means, as set out above, that the relevant deadline was December 29, 2014, and
that the grievance was filed eight days late.
[24] 1 am persuaded I should grant relief against the time limits in the circumstances
of this case. The grievor's medical condition related to her pregnancy was documented,
and known to the employer, and I accept that it caused her considerable anxiety. She
prudently set aside her workplace issues in order to care for her health and for that of
her baby. This factor alone, in my opinion, is sufficient to justify and explain the modest
delay related to the processing of this grievance. There were two other factors, the
failing health of one of her union representatives and the time of year, that may have
also contributed to the delay. The grievance raises issues of accommodation, which is a
right found in the Human Rights Code, and which is an important right of every
employee in Ontario. There is, furthermore, no evidence of significant prejudice to the
employer caused by such a short delay.
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[25] For the reasons set out above, I have decided to exercise. the arbitral discretion
under s.48.16 of the OLRA to extend the time limits and to allow the grievance to
proceed to arbitation on the merits. The employer's timeliness motion is dismissed.
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Barry t4hens,
Arbitrator
January 4, 2018
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