HomeMy WebLinkAboutUnion/Meadows 21-11-15In the Matter of a Labour Arbitration pursuant to the Ontario Labor Relations Act
Between:
The Corporation of Norfolk County
(the “Employer” or the “County”)
-and-
Ontario Public Service Employees Union
on behalf of its Local 279
(Full-time & Part-time Paramedics)
Grievances of Union and Meadows
OPSEU File Nos.: 2020-0279-0001 – 2020-0279-0006
(the “Union”)
Arbitrator: Randi H. Abramsky
Appearances:
For the Employer: Thomas W. Agnew, Counsel
For the Union: Sara Ageorlo, Grievance Officer
Alison Nielsen-Jones, Grievance Officer
Hearing: September 28 and November 8, 2021 via video conferencing.
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AWARD
1. The Employer, The Corporation of Norfolk County, has raised a preliminary objection to
the arbitrability of the Union’s policy grievance and individual grievance of Paramedic
Elaine Meadows. It asserts that what the Union now seeks to arbitrate is fundamentally
different than what was originally grieved. The Union disagrees and asserts that the claims
now being raised were discussed during the grievance procedure.
Facts
2. On February 19, 2020, Paramedic Chief Sarah Page sent an email to all Paramedics
advising that the County had approved a budget increase for Paramedic Services which
resulted in the creation of four full-time Paramedic positions at the Delhi base. The email
states, in relevant part:
We are aiming to have the new truck commence service
Friday, May 29, 2020, due to time required to complete the
transfer requests and scheduling. As it turns out – it’s a great
launch date as it will be during Paramedic Services Week.
This new coverage will be a 0900-2100 hour flex truck starting
and ending out of the Delhi Base. The staffing will be done by
seniority, with all full time paramedics being able to request to
transfer into one of the 4 open positions (Flex 9-9 days Delhi,
2 paramedics on each platoon). Each paramedic requesting
must abide by the regular open platoon position rules laid out
in the collective agreement.
ANY FULL TIME PARAMEDIC WISHING TO
TRANSFER INTO THE NEW OPEN PLATOON
POSITIONS (DELHI FLEX 0900-2100 or any resulting open
positions) MUST EMAIL ME PRIOR TO 0900 HOURS ON
MONDAY, MARCH 9TH, 2020.
…
3. As set out in the Chief’s email to staff, to fill those positions, the County utilized the
“transfer” provision in the Collective Agreement, Article 4.06. That provision states:
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4.06 Paramedic Platoon Positions
Permanent full-time paramedic(s) shall be normally assigned
to a platoon position for the purposes of working their
scheduled shifts, subject to the other provisions of this Article.
…
(c) Any identified platoon vacancy that the Employer intends
to fill and that are normally filled by full-time paramedic(s)
may be filled first through a platoon position transfer request.
Permanent full-time paramedic(s) are eligible to make platoon
position transfer requests.
…
(f). All platoon position transfer requests will be considered by
seniority of the full-time paramedic(s) involved. The
Employer is not obligated to consider granting more than one
(1) platoon position transfer request within any twenty-four
(24) month period for any paramedic(s) for any vacancy.
4. The schedule of the Delhi positions differed from the normal Paramedic schedule, which
involve rotating shifts, locations and partners. In the view of Devon Lansdell, Local Union
President, it was a desirable “premium” position. Twenty-two Paramedics applied for the
transfer. The County rejected six Paramedics because they had transferred to another
position in the last 24 months.
5. On March 2, 2020, Paramedic Elaine Meadows sent an email to Paramedic Chief Sarah
Page. It states:
Hello Sarah. I am applying for the new Delhi flex 09:00 –
21:00 hr full time position opening, commencing service May
29, 2020. I am aware that you are not obligated to grant this
transfer if a person has transferred in the last 24 months as per
the Collective Agreement.
As you may recall our conversation, however, I feel I was
forced out of my last position due to the harassment/bullying
issue and had no choice but to transfer into a different platoon
when the opportunity arose. It is my hope that you consider me
as a candidate for this new and desirable full time position.
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6. On March 4, 2020, Chief Page sent the following to all paramedics:
Subject: ** NEW STAFFED AMBULANCE** -
Clarification
To all Paramedics,
As per the highlighted section below in my original email, to
clarify with your incoming requests – in the Collective
Agreement, Article 4.06 refers to “any identified platoon
vacancy” and follows the same process in order to fill that
vacancy. This includes (f) “All platoon position transfer
requests will be considered by seniority of the full-time
paramedics involved. The Employer is not obligated to
consider granting more than one (1) platoon position transfer
request within any twenty-four (24) month period for any
paramedic(s) for any vacancy.”
We will be following the Collective Agreement and will not
be considering any requests from paramedics that have moved
within the last twenty-four (24) month period for this current
open vacancy.
7. On March 10, 2020, Chief Page responded to Paramedic Meadows’ March 2, 2020 email,
by email:
Elaine,
As you have been emailed, we are not considering anyone who
has transferred in the past 24 months for platoon transfer
requests. The union has submitted a grievance concerning this
process as well.
I do recall our previous conversation and your reasoning for
requesting the transfer was due to interpersonal issues. Based
on your email below, you commented that you were being
bullied and harassed. If you feel at any point in time you are
being bullied and harassed you can bring this forward and we
will proceed with a formal investigation. Please advise
through a written request if you would like us to look into this
further?
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8. Paramedic Meadows did not respond to this email. No complaint of harassment/bullying
was presented then, and there is no evidence that one was presented earlier.
9. Neither Paramedic Meadows nor Chief Page were asked, on either examination-in-chief or
cross-examination, about the earlier transfer request or the stated basis for it.
10. On March 2, 2020, the Union grieved the County’s decision to use Article 4.06 to fill the
Delhi positions. The grievance states:
We grieve that the Employer intends to invoke Article 4.06 (f)
for the purposes of filling 4 Permanent Full-Time vacancies
(Delhi 0900-2100 Flex Truck). The aforementioned article
speaks of paramedic platoon transfer requests. We argue that
the new up-staff vehicle (0900-2100) is a NEW position,
commencing May 29th 2020. Any applicants who are
interested would be applying to a NEW position, and not
requesting a paramedic platoon transfer request. Similar to
how the Community Paramedic positions were filled in Sept.
2018, where Article 4.06 (f) did not apply. This position has
never been available to any paramedic and is not replacing a
current vacancy. Furthermore, this position has the potential to
positively impact a paramedic's work life balance. For all of
the above reasons, we believe that seniority prevails, as
outlined in Article 4.04, and should be the decisive factor in
determining the successful candidates for the new posting.
Settlement desired
Fill the 4 new Permanent FTE's (Delhi 0900-2100 Flex Truck)
by seniority as outlined in Article 4.04. After the 4 new
positions have been filled, any corresponding platoon transfer
requests would be considered, as laid out in Article 4.06.
Following this, the remaining 4 open platoon positions would
be offered to the successful part time applicants, by seniority.
11. Article 4.01 is part of Article 4, Job Postings. It provides:
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4.01. Any permanent bargaining unit vacancy which the
Employer intends to fill, new position, or temporary position
of three (3) months duration or longer shall be filled as follows:
(a) The Employer shall post a notice of such vacancy or new
position on the bulletin boards provided in the work place for
a period of not less than seven (7) calendar days.
(b) If possible, positions shall be advertised within one (1)
week of such vacancy or availability.
(c) During the posting period, qualified paramedic(s) may
make written application to the General Manager of Employee
and Corporate Services.
…
4.04. Bargaining unit positions shall be filled in accordance
with the following factors:
(a) The knowledge, skill, and ability to perform the work in
question;
(b) The seniority of the paramedic involved
(c) When the factors in (a) are relatively equal between two
(2) or more paramedics, factor (b) shall govern.
4.05 (a) A paramedic who makes successful application:
(i) for any posted bargaining unit position shall be given a
trial period of four hundred and fifty (45) hours worked;
(b). Conditional on satisfactory service, the paramedic shall be
confirmed in the position at the end of this period.
(c). In the event that during such trial or probationary period a
successful applicant proves to be unsatisfactory in the position,
or if the paramedic is unsatisfied in the new position, such
paramedic shall be returned to their former bargaining unit
position without loss of seniority and shall be paid at the rate
of the job to which such paramedic is returned.
12. Subsequently, on April 28, 2020, the Union submitted six individual grievances, including
one from Paramedic Meadows. The grievances are identical and state:
Statement of Grievance
I grieve that the Employer violated the Preamble of the
Collective Agreement, as well as Articles 1 (“Recognition”), 3
7
(“Relationship”), 4 (“Job Postings”), 5 (“Management rights”)
and 13 (“Seniority”), and any other relevant articles, and the
Ontario Human Rights Code, and any other relevant
legislation, by failing to post and fill the four (4) new
permanent, full-time (Delhi 0900-2100 Flex Truck) positions
as new positions, but rather treating them as “transfers” and
thereby denying me the opportunity to be considered for one
of these positions, despite my seniority.
Settlement desired:
1. That the Arbitrator issue a declaration of the violations of
the Collective Agreement and legislation;
2. That the Arbitrator order the Employer to adhere to the
Collective Agreement and relevant legislation and award me
one of the above positions through Collective Agreement
Articles 4.01 and 4.04.
3. That the Arbitrator order the Employer to make me whole,
including, but not limited to, all lost wages, credit and
seniority;
4. Any other remedy deemed appropriate by the Arbitrator.
13. All of the grievances were discussed at a Step 2 meeting on May 14, 2020. The testimony
of Employee and Labour Relations Specialist Morgan Blaza, Paramedic Chief Sarah Page,
and Director of Human Resources Erin Anderson, as well as Local Union President Devon
Lansdell, and notes of the meeting from Ms. Blaza, indicate that the Union’s position was
that the County should have posted the four positions as new jobs, not utilized the transfer
process.
14. Based on Ms. Blaza’s notes of the May 14, 2020 meeting, which were the only notes
introduced into evidence, it was Mr. Lansdell’s view that Article 4.06 was not applicable
to new positions which increased the complement – that it applied to vacancies that arise
through retirement, resignation or change in status. It was Mr. Lansdell’s view, at the time,
that the Delhi positions were “new positions” to be posted, and were not a “platoon
transfer” subject to Article 4.06.
15. The County’s position, as set out by Director of Human Resources Anderson, was that
these were not new positions or classifications; it was a new platoon position – the same
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job. She stated that all Paramedics had the opportunity to apply, and that the grievance
hinges on these being “new positions.” According to the notes, Mr. Lansdell agreed that
their “disagreement lies in new position.” According to the notes, CAO Burgess stated:
”union stuck one point – new position”
16. CAO Jason Burgess raised Article 4.06(f) and questioned the impact of “using transfer vs.
not using transfer.” Mr. Lansdell responded that three of the four individuals placed into
the Delhi positions would have stayed the same, and only one would have had the
opportunity for the position. Mr. Burgess then stated: “really an issue with one person.”
17. Mr. Lansdell also mentioned a situation in 2015 when four full-time positions were created,
and that all employees were allowed to bid for them even if they had previously transferred.
He believed that the Delhi situation should be treated the same. He mentioned that six
employees, the six Grievors, were unable to be considered under Article 4.06(f) which
violated the principle of seniority in regard to a premium position. Mr. Lansdell testified
that seniority should have been given more respect due to the nature of the Delhi positions.
He testified that he suggested that the best way forward for the 22 applicants was to “redo
it, like 2015.” That was disputed by Chief Page. Ms. Anderson did not recall this. Ms.
Blaza did not recall the discussion beyond her notes.
18. No mention was made at the meeting concerning Paramedic Meadows’ individual situation
– that special consideration was due to her based on her assertion that she had transferred
in 2019 because of alleged harassment and bullying by a co-worker. Director of Human
Resources Anderson testified that she was not aware of Ms. Meadows’ assertion that she
had transferred due to alleged harassment and bullying until she read it in the Union’s
particulars in August 2021, shortly before the arbitration hearing.
19. It was the understanding of Ms. Morgan, Ms. Anderson and Chief Page, at the conclusion
of the Stage 2 meeting, that the Union’s position remained that the County violated the
Collective Agreement by using Article 4.06 to fill the positions rather than the posting
process set out in Articles 4.01 and 4.04.
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20. Then CAO Jason Burgess, the deciding official at the Step 2 level, set out the County’s
Step 2 response which included the following “key” points:
• OPSEU maintains that the addition of a 12-hour shift to a
station constituted a NEW POSITION and Section 4.04 should
prevail as the driving factor.
• Management maintains that this is not a NEW POSITION
and 4.06 should prevail which relates to Platoon Positions.
• OPSEU notes that the current scheduling for this shift
(steady days) is considered a “premium” or sought after
position as this was one of the reasons there was significant
interest in the issue.
• In either case, the use of seniority was the primary driver
to determine the selection of individuals for the 4 positions.
However, section 4.06(f) has an optional provision for the
Employer not to consider a paramedic that was granted a
position transfer within the prior 24 months.
• Since seniority was the driving factor under both sections,
in this case the only difference in the outcome between the
application of section 4.04 and 4.06 is that 1 paramedic would
be different.
21. He determined, on the merits, that this was not a “new position” to which Articles 4.01 or
4.04 applied, and that the Employer properly applied Article 4.06.
22. The Union did not dispute the Employer’s characterization of its position after it received
Mr. Burgess’s letter. At the hearing, Local President Lansdell testified that while he
acknowledged that the Union’s position was that the Delhi positions were new positions
that had to be posted, not “platoon transfers”, the Union’s “main concern” was that the
County precluded six members from being considered for the position under Article
4.06(f). At no time, however, did he clearly state that it was the Union’s position that
Article 4.06 should apply, albeit “less rigidly”, or ask that the Employer give special
consideration to Paramedic Meadows. During cross-examination, Local Union President
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Lansdell stated that the Employer should have given consideration to waiving the 24-month
bar to everyone who provided a reason, not just Ms. Meadows, since these were “premium”
positions – straight days, one base, one partner.
23. During the Stage 2 meeting, it became clear that only one of the six Paramedics who
individually grieved had sufficient seniority to have obtained one of the positions had she
been considered if the positions had been posted or the 24-month ban waived – Paramedic
Meadows who, at the time, had 19 years of seniority. According to Mr. Lansdell, only Ms.
Meadows’ grievance was proceeding because she had the most seniority and would have
been able to obtain one of the positions had she been considered.
24. At the conclusion of Chief Administrative Officer Burgess’s Step 2 Response, he suggested
a potential settlement, as follows:
- Due to the fact that only one paramedic would be
impacted, management reconsider waiving its right to reject
the transfer request from the more senior paramedic.
- The impacted paramedic (the individual who would not
be successful any longer) would then move to either (i) his old
position or (ii) an open position.
25. Attempts at settlement were undertaken between Chief Page and Local President Lansdell,
whereby Paramedic Meadows would be placed into the role – by waiving the County’s
right to reject her transfer request - and the least senior employee in the Delhi position
(who happened to be Local President Lansdell) - would take Meadows’ position. There
was no discussion about Ms. Meadows’ personal circumstances and the basis of her
decision to transfer in 2019. The discussion about Ms. Meadows was about her seniority.
26. After consultation with the members, the Union did not accept this proposal. It was the
Union’s position that the entire process, involving all 22 applicants, had to be redone.
Through an email dated June 10, 2020, Mr. Lansdell wrote:
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After speaking with all the parties involved, I am declining to
sign this memorandum of settlement. Our position remains,
that it is not just 1 person affected, but 1 position affected
which in turn affects multiple people through the recruitment
process.
I will be forwarding this to arbitration, along with 5 out of the
6 personal grievances. …
27. It was management’s understanding that the Union still wanted the positions to be posted
and go through the “recruitment” process, which meant posting. It was Mr. Lansdell’s
view, that it should be redone as in 2015. No clarification was sought by either side.
28. Nothing further concerning this grievance was discussed between the parties and a hearing
date of August 31, 2021 was scheduled. On August 20, 2021, counsel for the Union
provided particulars to counsel for the Employer. In those particulars, for the first time,
the Union asserted that Paramedic Meadows’ personal situation was relevant. It noted:
The Grievance of Elaine Meadows
14. On March 2, 2020, Ms. Meadows emailed Chief Page
about the Delhi positions. Ms. Meadows stated that she would
apply for one of the full-time positions.
15. Ms. Meadows had been granted a transfer within the last
24 months. She had asked for a transfer because of harassment
and bullying issues that she had faced in her old position. As a
result, she felt she had no other choice but to request a transfer
into a different platoon when the opportunity arose.
16. Ms. Meadows asked Chief Page to consider her for the
Delhi position, despite having been granted a transfer within
the last 24 months.
17. On March 10, 2020, Chief Page responded to Ms.
Meadows’ request to be considered for the Delhi positions.
Chief Page wrote “we are not considering anyone who has
transferred in the past 24 months for platoon transfer requests.”
18. Ms. Meadows was not considered for the Delhi positions.
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19. No other grievor reached out to Chief Page for special
consideration.
29. The Union also raised, in its particulars, what occurred in 2015 when new positions were
added – and that the Paramedics were allowed to apply to transfer to the new positions,
even if they had transferred within the last 36 months.
30. The Union’s legal position, however, was set out in para. 37 of the particulars:
37. Article 4.06(f) applies with respect to the filling of full-
time permanent vacancies for the reasons set out in par. 29
(above), for example. Article 4.06(f) does not apply to
transfers into new full-time positions that increase the
complement of full-time paramedics; instead the job
competition process as set out in the Collective Agreement
applies to new full-time positions.
31. Paragraph 29 of the particulars states that employees may transfer under Article 4.06 “when
a full-time paramedic resigns, reduces their hours to part time, transfers departments, retires
or are terminated from their position.”
32. In paragraph 38, the Union set out its requested remedy – that the Employer run a
competition for the Delhi positions per Articles 4.01, 4.03, 4.04 and 4.05. It further
requests a declaration, at para. 39: “that the Paramedic Services does not apply Article
4.06(f) for paramedic requests for consideration for new full time positions that increase
the complement of full time paramedics.”
33. At the first day of hearing, the Union advised that it was no longer asserting that the
Employer should have posted the Delhi positions under Article 4.01 and 4.04, and that the
Employer had been correct to use the Article 4.06 transfer provision. According to Mr.
Lansdell, the Union realized, between the March policy grievance and the April individual
grievances, that it did not want paramedics to have to compete for these positions or go
through another probationary period which would be required if the positions were posted
under Articles 4.01 and 4.04. He acknowledged, however, that on the individual grievance
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forms, it still stated that the Delhi positions were “new” positions that should be posted,
not “transfers” under Article 4.06. The remedy sought was to have the jobs posted under
Articles 4.01 and 4.04. Mr. Lansdell acknowledged that the grievances as written – both
the policy and the individual grievances – asserted that the Employer should post the Delhi
positions but he “never wanted it to be done that way” – with interviews and probationary
periods. Nor did the individual Grievors. Yet he acknowledged that was what the
grievances stated and the remedy requested. He also acknowledged that the Union
specifically stated that Article 4.06 should not have been applied by the Employer. He
acknowledged that he never said that Article 4.06 should be applied but less rigidly. He
insisted that “our overall position” did not change – the Union wanted all of the employees
who applied to be considered. When asked on cross-examination whether it was the
Union’s position, now, that Article 4.06 applied but special consideration should be given
to Ms. Meadows, he responded that special consideration should be given to anyone who
provides a reason, anyone who asks – since the Delhi jobs are premium positions. He also
stated that it was still his view that Article 4.06(f) was never intended to cover new
positions.
34. At the first day of hearing, the Union withdrew all of the individual grievances except for
Paramedic Meadows’ grievance. It was the Union’s position, on August 31, 2021, that the
Employer improperly failed to consider the individual personal circumstances raised by
Ms. Meadows in her March 2, 2020 email to Chief Page - the fact that she transferred in
2019 due to alleged harassment and bullying- when it determined that she was ineligible
to transfer into the Delhi position.
Reasons for Decision
35. As articulated by counsel for the Union during closing argument, the issue is whether the
Union has improperly expanded or changed the scope of the grievance by asserting that the
County improperly failed to consider Ms. Meadows’ individual special circumstances
when it filled the Delhi positions under Article 4.06(f). It submits that the Employer was
well aware, through discussions during the grievance process, that the Union took issue
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with the Employer’s application of Article 4.06(f) because it did not allow employees, and
Ms. Meadows in particular, to exercise their seniority. The Employer asserts this
contention is totally different from the wording and remedy sought in the grievances, and
the discussions during the grievance process. It s ubmits that it was not until the Union’s
particulars, sent eleven days before the arbitration, that the issue of Ms. Meadows’ personal
circumstances was raised. In its view, this is a completely new grievance.
36. The parties do not dispute the relevant case law or principles. Both cite to Re Blouin
Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America,
Local 2486, 8 O.R. (2d) 103 (Ont. CA, 1975), and the statement there that “the board is
bound by the grievance before it but the grievance should be liberally construed so that the
real complaint is dealt with…” The Employer also cites to the following cases: Re Ontario
Hydro and Power Workers Union, 1996 CarswellOnt 6104 (Burkett); Re Electrohome Ltd.
and I.B.E.W., Local 2345, 1984 CarswellOnt 2478 (Laskin); Re Fanshawe College and
OPSEU, 113 L.A.C. (4th 328 (Burkett, 2002); Re Canac Kitchens Ltd. and United
Brotherhood of Carpenters and Joiners of America, Local 1072, 1996 CarswellOnt 5767
(Abramsky); Re Mount Sinai Hospital and OPSEU (Senkus Group), 2008 CarswellOnt
10526 (Abramsky); Re Ministry of Labour and OPSEU (Jones), 2010 CarswellOnt 11669
(Abramsky), Re Ministry of Attorney General and OPSEU (Botosh), 2018 CarswellOnt
3031 (Abramsky), and Re OPSEU (Labanowicz) and Ministry of Transportation, 2014
CarswellOnt 12578 (Lynk) The Union cites to Re Greater Sudbury Hydro and CUPE,
Local 4705, 20003 CarswellIOnt 5849 (Dissanayake).
37. In all of those decisions, there is a balance struck between two competing principles – the
idea that “grievances are not to be defeated by mere defects in form or technical
irregularities” and the idea that “it is not open to a party to unilaterally expand a grievance
to encompass a matter not grieved.” In Re Ontario Hydro, supra, at par. 13, the board there
continued: “Our jurisdiction is limited by the scope of the grievance filed, as liberally
construed, unless expanded by the mutual agreement of the parties.”
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38. In Re Electrohome Ltd., supra, at para. 14, the Board stated the applicable principles as
follows:
If the issue raised at the arbitration hearing is in fact part of the
original grievance, a board of arbitration should not deny itself
jurisdiction based on a technical objection to the scope of the
original grievance. To do so would deny the value of
flexibility and would be to compel the parties to draft their
grievances with then nicety of pleadings. On the other hand,
if the issue raised by one of the parties is not inherent in the
original grievance, for the board to permit the party to raise
that issue as part of the original grievance would be to deny the
parties the benefit of the grievance procedure in an attempt to
resolve the issue between themselves. If fact, it would be to
permit one party to substitute a new grievance for the original
grievance.
39. In Re Greater Sudbury Hydro Plus Inc., supra, at para. 17, Arbitrator Dissanayake
determined that “[t]o include an issue through a ‘liberal reading’ I must be able to conclude
that the employer reasonably should have understood upon reading the grievance that the
issue in question was part of the grievance.” If the issue was part of or inherent in the
original grievance, the lack of precision of the written grievance should not be a technical
bar to a board of arbitration’s jurisdiction.
40. As I stated in one of the cited decisions, Re Canac Kitchens, supra, at para. 22: “[t]he
starting point – thought clearly not the end-point – in determining if an issue is arbitrable
is the wording of the grievance. In this case, the wording of the grievances, both the policy
and the individual grievances, is very clear. The grievances allege that the Employer
violated the Collective Agreement when it utilized Article 4.06(f) to transfer employees
into the Delhi positions rather than post them as “new positions” open to all Paramedics.
The wording and the remedy sought could not be clearer – the Delhi positions were “new
positions” under Article 4.01 and had to be posted under the Collective Agreement.
41. The individual grievances, including that of Ms. Meadows, allege the same violation, using
the same wording as the other individual grievances. There is no reference to the
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Employer’s failure to consider her special circumstances – her assertion, as expressed in
the March 2, 2020 email, that she was “forced” to transfer due to alleged harassment and
bullying. Ms. Meadows knew, by March 10, 2020, that the Employer would not consider
her transfer request, as did Local President Lansdell since he was copied on both the initial
email and Chief Page’s response.
42. In addition to the written form of the grievance, discussions that took place during the
grievance process must also be considered. A great deal of evidence, and much of the
parties’ arguments, centered on the grievance meeting of May 14, 2020. The Union
focused on Mr. Lansdell’s discussion of the situation in 2015, when employees were
allowed to apply to transfer into new positions even if they had transferred within the last
36 months (the time period provided in the Collective Agreement at the time). It focused
on the fact that he emphasized the importance of seniority and the fact that the applications
of six Paramedics – the six Grievors – had not been considered under Article 4.06(f)
because they had transferred in the last twenty-four months, which undermined the exercise
of their seniority rights.
43. Yet that was not all that Mr. Lansdell stated during the grievance meeting. He forcefully
stated the Union’s position that the Delhi positions were “new positions” to which Article
4.06 did not apply, that Article 4.06 applied only to positions that became vacant due to
resignations, transfers, changes of status, etc., not new positions that increased the
employee complement. It is understandable why the management personnel at the meeting
believed that the Union was maintaining its position that the positions should have been
posted.
44. It should also have been apparent, however, and it appears that Mr. Burgess surmised this,
that the Union felt that Article 4.06(f) had been unfairly applied to exclude the six Grievors,
by barring them from consideration and not allowing them to exercise their seniority rights
for the coveted positions. His questions during the meeting revealed that whether the
positions were posted, or employees were allowed to transfer without regard to the 24 -
month ban, the outcome would likely have been the same – only one employee lost out on
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the opportunity for a Delhi position due to her seniority – Ms. Meadows. The other
Grievors, even if considered, did not have the seniority to affect the outcome. This appears
to have led to his suggestion to the parties to settle – waive the 24-month ban for Ms.
Meadows and allow her to swap positions with the least senior Delhi employee, Mr.
Lansdell.
45. It is clear that Ms. Meadows (whether by name or not) only came up in the discussion on
May 14, 2020, because she was the senior employee impacted by the Employer’s approach.
Her name did not come up because of the “special circumstances” of her transfer in 2019.
That was not discussed at the grievance meeting or in the settlement discussions which
followed. As noted, it was Mr. Lansdell’s position on cross-examination that all of the
applicants who were rejected due to a transfer within the prior 24 months should be
considered due to the premium nature of the Delhi positions, not just Ms. Meadows. In
addition, Director of Human Resources Anderson testified that she was not even aware of
this issue until she read the Union’s particulars in August, 2021.
46. Consequently, on the evidence, it is clear that the issue of Ms. Meadows’ special
circumstances was not grieved, nor discussed during the grievance process. The grievance
meeting did discuss – at least in part – the Union’s concern that not all of the employees
who applied were considered, and that Ms. Meadows was the only one actually impacted
by this. But that is not the same claim as the Union is raising now. It is now claiming that
the 24-month ban should have been waived for her because of her special circumstances.
That is a very different claim from what was actually grieved, or discussed during the
grievance process.
47. It is also significant that after the grievance meeting and the Union’s decision to decline
the settlement proposed by the Employer, the Union reverted to its initial position
concerning the grievances. While Mr. Lansdell’s email declining the settlement may not
have been entirely clear, there can be no question about the clarity of the Union’s position
as set out in the particulars of August 20, 2021. In those particulars, the Union restated its
original position – that the Delhi positions were “new positions” that had to be posted and
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that Article 4.06(f) was not applicable. The Union was clear that Article 4.06(f) did not
apply, and that the Employer should have posted the positions. This was the Union’s
position that the Employer prepared for on the first day of the hearing. This presentation
of its position, on the eve of the hearing, cannot be ignored. Consequently, even if the
grievance discussions, liberally construed, indicate that the Union was concerned about the
manner in which the Employer applied Article 4.06(f), that position changed once the
proposed settlement was declined. The Union’s original position was reasserted.
48. These facts persuade me, on the balance of probabilities, that the grievance that the Union
seeks to litigate – that the Employer failed to consider the special circumstances of Ms.
Meadows in the application of Article 4.06(f) – is a different grievance than was filed, or
discussed. Even on the most liberal reading of the grievance, and the discussions during
the grievance procedure, this is a different issue.
49. There is some similarity between this case and the situation in Re Ministry of Labour and
OPSEU (Jones), supra. In that case, the grievance alleged that management’s imposition
of a file quota on staff was “unfair”, had “no basis for justification as a performance
measure and cannot be sustained over a prolonged period of time”. No specific provision
in the collective agreement was cited. Shortly before the arbitration, the Union included
allegations of violations of Article 9 (Health and Safety) and Article 21.1 (Discipline and
Dismissal) in its particulars. When the quota was first imposed and discussed, at the pre-
written grievance stage, employees raised some complaints about stress and health
concerns. But when the grievance was written and presented, “there was nothing about
health, stress, or anything that might reasonably be construed to include a health and safety
issue, or that would have put the Employer on notice that was the ‘true nature’ of the
grievance.” Re OPSEU (Jones), supra, at para. 30. Nor was health and safety discussed
during the grievance process. As a result, I determined at paras. 30 and 34: “Even on the
most liberal and generous reading of the grievance, it cannot be read to include a health
and safety concern arising out of the quota” and concluded that “the Union’s particulars go
beyond a new legal argument – and represents a change in the substance of the grievance,
or, in effect, the substitution of a new grievance for the original one.”
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50. In this case, while Ms. Meadows asked Chief Page to consider the reasons for her 2019
transfer in determining whether she could still transfer into the Delhi position, that issue
was not included in the grievance, nor was it discussed during the grievance process. It did
not resurface until the August 20, 2021 particulars.
51. Nor am I persuaded that Ms. Meadows’ claim that her special circumstances should have
been considered falls under the Union’s broader concern about seniority. In Re OPSEU
(Jones), supra, at para. 31, a similar argument was raised. The Union argued that the
grievance was, in essence, “the employer’s quota is a problem” and therefore the health
and safety issue was one that could reasonably be contemplated by the language of the
grievance. The board did not agree.
52. Similarly, in Re Electrohome Ltd., supra, a group grievance was filed alleging that more
senior employees, who had the required skill and ability, had been laid off before more
junior employees in violation of Article 12.02 of the collective agreement. The Union then
sought to argue that the Employer’s action also violated Article 33, Technological Change”
which provided for “preferential consideration to be trained in new skills or new jobs…”
The Union argued, at para. 17, that this was a reformulation of its position by way of an
alternative argument, and that the “real dispute between the parties was the lay-off of four
employees.” The Employer took the position that the dispute was not the lay -off of the
four employees but whether they had the skill and ability to do the job. The board of
arbitration agreed, at para. 19:
In our view, the company is correct in taking the preliminary
objection to the right of the union to raise art. 33 in the present
grievance. The grievance, as worded and as considered by the
parties throughout the grievance procedure, was directed to the
very straight forward issue as to whether the employees had
the required skill and ability to do the job in question. It is quite
apparent that there was no discussion in the grievance
procedure, and indeed no discussion between the parties at all
as the application of art. 33. …In our view, to permit the union
to raise the issue of art. 33 in the present grievance would not
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simply be an amendment of the grievance nor an elucidation
or reformulation of the basic dispute between the parties. It is
indeed a new issue raised by the union and one that should be
the subject-matter of full discussion by the parties through the
grievance procedure.
53. Similarly, in Re Greater Sudbury Hydro Plus Inc., supra, the grievance alleged a violation
of the grievor’s bumping rights; there was no mention of a “demotion”. The Union asserted
that by complaining about the denial of bumping rights, it put the employer on notice that
the Union was objecting in a general way to the way that the grievor was treated. Arbitrator
Dissanayake disagreed, stating at para. 17: “[t}he grievance was very specific about the
right violated. It was about bumping rights.” He continued, at para. 19:
The conclusion is inescapable that the dispute that is now
raised by the union is a very different one and asserted distinct
rights than the issues raised in the grievance filed and
processed through the grievance procedure. The difference is
not one of form or technicality. It is one of the very substance
of the dispute. To permit it would be to allow the union to
substitute a new grievance at arbitration, for the grievance
originally filed and processed through the grievance
procedure.
I reach the same conclusion here.
54. After careful consideration, I am not persuaded that the parties’ discussions during the
grievance meeting - about 2015, Article 4.06 and seniority - encompassed the claims that
the Union is seeking to raise now. The parties discussed, in its broadest terms, the concept
that the Employer should have, as it did in 2015, waived the 24-month bar for everyone
given the “premium” nature of the job. There was NO mention of Ms. Meadows’ personal
circumstances in regard to why she had applied for the 2019 transfer, or that she was any
different than the other Paramedics who had been rejected for consideration under the 24-
month provision. She only came up during the discussion because of her seniority – that
due to her seniority she was the only one who would have been awarded one of the
positions.
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55. In my view, the contention that the Employer violated the Collective Agreement by failing
to consider Ms. Meadows’ individual circumstances in its application of Article 4.06(f) is
a completely different claim than what was raised in the policy or Ms. Meadows’ individual
grievance, or discussed at the May 14, 2020 grievance meeting. By failing to raise this
issue – indeed, in arguing the exact opposite – that Article 4.06 should NOT apply – the
Union by-passed the grievance process and in effect, seeks to substitute one grievance for
another.
56. In so ruling, I realize that the Local Union officers are not lawyers, or experts, but Mr.
Lansdell (and his Union representative), who assisted in drafting the grievances, had a clear
view that the positions should have been posted for all to apply as a “new position” versus
a transfer under Article 4.06(f). The Union’s concern may have been that the six applicants
were not permitted to apply, but they framed it as a violation of the posting provisions, and
they stuck to that position until the first day of hearing.
Conclusion
57. For all of the reasons set out above, I am persuaded that the Employer’s preliminary
objection must be upheld. The grievances are dismissed.
Issued this 15th day of November, 2021.
Randi H. Abramsky
_____________________
Randi H. Abramsky