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HomeMy WebLinkAbout2016-0660.Potvin.22-09-21 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2016-0660 UNION# 2016-0499-0048 Appendix “A” attached IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Potvin) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Diane L. Gee Arbitrator FOR THE UNION Ed Holmes Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER Colin Youngman Hicks Morley Hamilton Stewart Storie LLP Counsel HEARING September 12, 2022 - 2 - Decision [1] I am seized with 26 grievances filed by the Ontario Public Sector Employees’ Union (the “Union”) on behalf of Shayne Potvin (the “grievor”). This decision relates to a motion brought by the Liquor Control Board of Ontario (the “Employer”) seeking to have a number of the grievances dismissed for reasons including: the particulars do not make out a prima facie case; the grievance was not filed in a timely manner; the matter is moot; it is a duplicate grievance; and the matter has been settled. The Union contests the Employer’s motion and asks that it be dismissed. This is a bottom-line decision. Timeliness Objections [2] The Union submits the Employer’s timeliness objections ought to be dismissed on the basis of waiver as this is the first instance the Employer has raised the objection. The Employer can only waive an objection to timeliness if it knows of the allegations being advanced and the dates on which they are alleged to have occurred. The first the Employer became aware of the allegations and the dates on which they occurred is when it received the particulars. The next stage of the process was the Employer’s motion to have grievances dismissed on the basis, inter alia, of timeliness. I find the Employer did not waive its right to seek dismissal of allegations on the basis that they are untimely. Grievance 2016-0499-0048 [3] The statement of the grievance refers to an “abuse of management rights” as well as the “OHSA and Human rights codes.” The settlement desired refers to a request to have the “unfair treatment stop.” [4] The particulars in respect of this grievance are 25 paragraphs long. Paragraph 29 of the particulars summarizes the preceding 24 paragraphs of allegations dating back to 2011 as follows: The grievor feels that the Employer disregarded the severity of his foot pain and failed to accommodate him. He feels that management abused its power to request documentation as his absences had already been substantiated by sufficient medical documentation and explanation. The grievor feels harassed and discriminated against on the basis of disability due to management's inconsistent practices regarding his absences for longstanding, regularly scheduled medical appointments. He feels as if the employer is implying that he was being dishonest by repeatedly having asked him for medical documentation. [5] The Employer, relying on paragraph 24 of the particulars, seeks to have this matter dismissed on the basis the particulars do not establish a prima facie case. The Employer asserts the substance of the grievance is a yearly request for medical documentation and there is no article in the collective agreement that prevents the employer from making these requests. - 3 - [6] I do not read the particulars as limiting the allegation to that set out in only paragraph 24, however, I do not find the allegations set out in paragraphs 5 through 19 and 22 to 26 inclusive do not establish a prima facie case of harassment. The Employer is entitled to request documentation to establish the validity of an employee’s repeated requests for time off and the number of requests made are modest. Changing the characterization of the time off work to attend medical appointments similarly is not harassment. These paragraphs of the particulars are struck. Concerning the allegations set out in paragraphs 20, 21, 27 and 28 which allege a failure to accommodate, assuming without finding that the grievor had provided the Employer with medical documentation that supported his request for accommodation, these paragraphs establish a prima facie case of a failure to accommodate and thus will not be struck. Grievance 2017-0499-0021 [7] The Employer objects to this matter proceeding on the basis that the particulars do not establish a prima facie case; the matter is moot; as well as on the basis that the matter was settled by way of an agreement that provides Arbitrator Brown is seized. [8] The grievance indicates that the grievor requested E-leave after he noticed a tire on his vehicle was flat. The grievor was asked to provide documentation that he used the time to get his tire fixed. The grievor challenges the reasonableness of the request for documentation. The grievance also refers to the fact that the grievor had referred a similar issue to arbitration in the past and it had been settled. The grievor states the request for documentation after the settlement that was reached “leads him to feel harassed on the grounds that this is unnecessary and once again, he is being labeled a liar.” [9] Paragraph 50 of the particulars refers to additional instances on which the grievor was asked to provide documentation in support of a request for E-leave. These additional instances are not part of the grievance as the grievance is quite specific on its face that it relates to the E-leave the grievor requested in order to have his tire repaired. [10] The grievor challenges the reasonableness of the request for documentation in support of his request for E-leave to get his car fixed. E-leave is paid leave granted on special or compassionate grounds at the discretion of management. The Union’s theory is, the Employer is bound by a common law duty to administer the collective agreement in good faith, and thus must administer the E-leave provision reasonably. The proposition is that, requiring the grievor to demonstrate that the time was used for the purpose it was granted was unreasonable. [11] I find the particulars do not make out a prima facie case that the Employer’s request for documentation from the grievor to support his need for paid time off work to get his tire fixed was unreasonable. Article 14.1 provides the Employer may grant paid leave on special and compassionate grounds. The leave was - 4 - granted. Further, the particulars state that it was very easy for the grievor to comply with the request as all he had to do was show the Employer a copy of the mechanic’s receipt. The request was not unreasonable, and it was easily complied with. [12] I find the particulars do not establish a prima facie case and this grievance is dismissed. Grievance 2017-0499-0070 [13] This matter involves the process employed for hiring a “maintenance helper.” There is no mention in the grievance of accommodation or a disability. The relief requested is that the job be reposted. The grievance references to specific articles of the collective agreement as well as the OHRC and OSHA. [14] The particulars indicate that grievor applied for the position, however, due to a disability he required accommodations to do the aptitude test that were not provided. The particulars suggest he should have been awarded the position or offered the opportunity to be put in the position for a few months. The Employer argues the particulars do not establish a prima facie case as he did not request accommodation. [15] The grievance, on its face, appears to be a standard job competition grievance. The particulars refine the reasons for the challenge to the job competition as including the issue as to whether the grievor ought to have been accommodated. I find the particulars are sufficient to establish a prima facie case. The Employer’s assertion that the grievor did not request accommodation may be a defence to the claim the grievor was not accommodated but does not bar the matter from proceeding. Grievance 2017-0499-0083 [16] On its face, the grievance indicates that Mr. Stehle was hired for a position that the grievor feels he is better qualified to perform and giving the position to Mr. Stehle violated his seniority and created an unhealthy culture. The grievance does not in any way refer to discrimination, harassment, the Ontario Human Rights Code or the Ontario Health and Safety Act. [17] The particulars provide that the grievor is complaining that the hiring of Mr. Stehle resulted in a reduction in the amount of accommodated work made available to the grievor resulting in his being given tasks that aggravated his foot pain. [18] The Employer submits the grievance comes down to an allegation that the grievor is more skilled than the person hired for the building maintenance worker position. It does not concern the accommodation issues raised in the particulars and the articles cited in the grievance do not concern accommodation issues. - 5 - [19] I find the grievance does not concern allegations relating to accommodation and the only particulars provided relate to accommodation. I find the particulars do not establish a prima facie case. [20] Grievance 2017-0499-0083 is dismissed. Grievance 2017-0499-0086 [21] On its face, this grievance does not appear to have anything to do with harassment, discrimination, or the failure to accommodate. It appears to be a complaint relating to the assignment of work, maintenance work not being posted and job qualifications. The grievance does not refer to the OHSA or the OHRC. [22] The particulars refer to the hiring of Messrs. Grant and Brazeau over four years prior to the filing of the grievance. Paragraph 70 contains a suggestion that management was performing bargaining unit work. Paragraph 71 refers to a safety incident in the summer of 2014 that, the grievor alleges, was caused by untrained people working on the conveyor system. Paragraph 72 refers to cleanliness issues arising in the warehouse because Mr. Stehle was doing building maintenance work and could not keep up with his tasks as a cleaner. Paragraph 73 indicates the grievor was confused about Mr. Stehle working on the conveyor system, when that is what Mr. Grant was hired to do. Paragraph 74 indicates the grievor was frustrated that the Employer seemed to bypass seniority and assign employees less senior to him to work on the conveyor system. Paragraph 75 states: “…receiving a promotion to the acting building maintenance position would have put the grievor in a role that decreased his foot pain…” and “… the grievor feels the LCBO deliberately went out of their way not to hire him into the acting building maintenance position because of his physical disability.” Paragraph 76 states this grievance was filed grieving the acting building maintenance position competition. [23] The Union argues that the essence of the issue is that a bundle of duties was created that ought to have been identified as a vacancy and posted. By not doing so, the Employer deprived the grievor of the right to apply for those duties that he is trained to do and are better for his foot. [24] The Employer argues the particulars go beyond the scope of the grievance and advance a theory of the Employer’s duty to accommodate not sustained in the case law. I find the allegations concerning accommodation issues are beyond the scope of the grievance. Paragraph 75 is struck. [25] The allegations raised by paragraphs 68 to 74 and 76 are either grossly out of time; do not constitute violations of the collective agreement; and/or are not properly the subject of an individual grievance filed by the grievor. I would not exercise my discretion to extend time limits in connection with this grievance. [26] Grievance 2017-0499-0086 is dismissed. - 6 - Grievances 2018-0499-0161 and 2019-0499-0058 [27] Grievances 2018-0499-0161 and 2019-0499-0058 grieve the performance appraisal process. [28] The Employer requests that the grievance be dismissed on the basis that the issues in question are a function of management rights and not covered by the collective agreement. The Employer asserts the particulars do not make out a prima facie case. [29] The Union argues the Employer has a common law duty of good faith contract administration and, as such, the Employer is required to exercise its management rights in good faith. It is not appropriate to foreclose the Union from advancing this theory by dismissing this matter on a prima facie case. [30] I find, on the Union's theory of the case, the particulars do make out a prima facie case. The Employer’s motion to dismiss these grievances is not granted. Grievance 2019-0499-0023 [31] This grievance concerns the grievor’s placement on the attendance management program. It is stated that Mr. Valencia said that one month off without pay would count as “one block” and not cause him to be put on the AMP. The grievor was subsequently placed on the AMP. The grievor was removed from the AMP three or four months later. Articles 1.1 and 27.4 of the collective agreement are cited in the grievance. Under settlement desired it states: “To have this letter removed from my employee file and have a formal apology written to me by all parties members involved in the decision to place me in the AMP. I am also seeking damages and any other award deemed just by an arbitrator.” [32] The particulars are quite lengthy and make reference to numerous additional allegations of harassment, discrimination and failure to accommodate. I find the particulars are an expansion of the scope of this grievance. This grievance relates solely to an allegation the grievor was placed on the AMP in March 2019 when he was told he would not be. [33] The Union argues the Employer has a common law duty of good faith contract administration and is required to exercise its management rights in good faith. [34] I find the particulars establish a prima facie case. The grievance is not dismissed. Grievances 2019-0499-0032 and 2019-0499-0033 [35] The grievor was suspended for three days in 2019. Grievance 2019-0499-0032 relates to this three-day suspension. The Employer does not object to this grievance going forward. - 7 - [36] Grievance 2019-0499-0033 is virtually identical. According to the grievance form, the grievor was attempting to file a “Bill 168”, harassment complaint. He was trying to locate someone from the Human Resources Department without success. He was told to file the complaint on his own personal time. The grievor states that he was told the grievance process was a better option. The grievance further states that he was suspended for three days and told that it was due to his exercising his rights to the formal complaint process. [37] The particulars provided in connection with these two grievances describe, at paragraphs 110 – 115, events, from the grievor’s perspective, that caused the grievor to want to file a “Bill 168” complaint with the Human Resources department. They provide context for what occurred on the day of the incident and do not, given the scope of the grievance, constitute allegations that can be pursued as part of the grievance. [38] The Employer asserts that the issues raised in these two grievances can be dealt with in grievance 0032. [39] The two grievances seek different remedies. At this stage I am not persuaded it is appropriate to dismiss one of them. I decline to dismiss grievance 2019-0499- 0033. Grievances 2018-0499-0140 and 2019-0499-0062 [40] The Employer argues that the particulars are dated and include specific reference to other grievances. The Employer submits that Grievance 2019-0499- 0062 is simply a repeat of grievance 2018-0499-0140. Finally, the Employer submits the particulars do not set out a prima facie violation of the collective agreement relevant to the articles cited in the grievance. [41] Grievances 2018-0499-0140 and 2019-0499-0062, dated September 13, 2018, and July 31, 2019 respectively, both state, on the face of the grievance, that the allegation raised is a pattern of harassment on the part of the Employer towards the grievor. In pursuing harassment grievances, a grievor is not precluded from leading evidence relating to employer action, which they claim forms part of the pattern of conduct, because it took place more than 30 days prior to the date of filing. Rather, the Grievance Settlement Board (the “Board”) has developed a guideline, that evidence pre-dating the grievance by up to three years will be admissible to establish a pattern of conduct that amounts to harassment. [42] The result of the application of the Board’s three-year guideline means properly particularized allegations relevant to whether the grievor was subjected to a pattern of harassment going as far back as September 13, 2015 is admissible. As counsel for the Union submits, the allegation is that the harassment was ongoing and thus I find that evidence of alleged harassment, up to, and including, the grievor’s termination, which is the subject of its own grievance, is admissible. - 8 - [43] I find the particulars set out a prima facie case of harassment. To the extent the particulars relate to allegations that would support a finding of a pattern of harassment, and the post-date September 13, 2015 they are timely. The two grievances overlap in terms of the allegations made, however, they were filed at different times and thus the application of the Board’s three-year guideline means the date on which each of the grievances was filed is relevant to determine the time period in respect of which evidence can be called. Further, there is no prejudice caused by the overlapping particulars as a single allegation can only be heard and determined once. I decline to dismiss either of the grievances notwithstanding the overlap in particulars. [44] The Employer’s motion to dismiss either of these grievances is denied. Grievance 2019-0499-0057 [45] This grievance, filed on August 8, 2019, states the grievor believes the Employer documents information inaccurately and includes false information in letters, appraisals and responses to investigations. Articles 1.1 and 2.2 and 27 are specifically referenced. [46] The Employer argues the particulars do not establish a violation of the collective agreement, the allegations are significantly dated, or post-date the grievance. [47] The grievance alleges harassment and a breach of management rights. The Union submits the grievance alleges harassment, and that the Employer has violated its common law duty to administer the collective agreement in good faith. [48] Paragraph 26, 27, 29, 30 describe particulars that occurred more than three years prior to the filing of the grievance. The reference, in paragraph 29, to the Employer retracting a raise the grievor received, post-dates the grievance. These paragraphs are struck as untimely. [49] The remaining paragraphs allege that, in November 2017, and again in August 2018, the Employer completed a leave sheet “with both approved and not approved marked off.” The particulars refer to a letter from the Employer to the grievor’s doctor in October 2018 that inaccurately said he played football and soccer on weekends. After the grievor wrote to the Employer correcting the inaccuracies, a follow-up letter, sent to the Doctor on November 6, 2018, contained inaccurate information. Finally, the particulars state that, on July 8 and 12, 2019 the Employer inaccurately described that the grievor’s forklift hit his co- worker’s forklift. This last particular is part of grievance 2019-0499-0055. [50] I find the particulars make out a prima facie case. The Employer’s motion to dismiss the grievance is not granted. - 9 - Grievance 2020-0499-0059 [51] The grievance form is basically illegible. The particulars state the grievance was filed “due to the Employer’s inconsistent actions regarding their attendance management policies.” Paragraph 46 states the grievor’s foot appointments used to be approved as time off without pay but now he was required to document them as sick/e-days. This particular is also dealt with in paragraph 14 of the December 7, 2021 particulars wherein it is indicated this change was made in late 2014 or early 2015. The remaining paragraphs are descriptive and do not set out any allegations. [52] The allegations set out in paragraph 46 are grossly out of time. I decline to exercise my discretion to grant an extension of time. There are no other particulars that set out any allegations that would provide a foundation for a grievance. [53] This grievance is dismissed. Grievance 2020-0499-0060 [54] The grievance begins: “Grieving my most recent appraisal and all the inconsistencies and lack of information regarding specifics of my employment, also feel like some of the information included is subjective and incorrect.” [55] The particulars provide that the grievor believes the Employer holds his productivity to a regular standard and does not take into consideration the fact that he has a disability that impedes his ability to perform certain aspects of his job. The grievor is frustrated at being labeled a light duty employee as he believes this segregates him and discriminates against him based on his disability. [56] The Employer submits that this matter ought to be dismissed on the basis that the particulars do not establish a prima facie violation of the collective agreement. [57] On its face, the grievance it is in respect of the grievor’s “most recent appraisal” and “inconsistencies and lack of information regarding specifics of my employment” as referenced in that appraisal. The only particulars are that the Employer holds the grievor to a regular productivity standard and does not consider the fact that he is disabled and has identified the grievor as a light duty employee. Not having reviewed the appraisal in question, I am unable to see if it refers to the grievor as a light duty employee or if his status as a light duty employee impacted his appraisal. [58] I decline to dismiss the grievance but find the grievance is restricted to challenges as identified in the particulars as they relate to the grievor’s appraisal. The allegation that the Employer has identified the grievor as a light duty employee is relevant only in so far as it relates to the appraisal. - 10 - Grievances 2019-0499-0056 and 2019-0499-0078 [59] Grievance 2019-0499-0056 states that the Employer submitted the grievor's personal information without his consent to ReedGroup, a third-party company. It is asserted that this is a violation of the grievor’s privacy. Grievance 2019-0499- 0078 states the grievers medical information was shared, without his consent, with a medical consultant, D&D Disability Management. The grievance states that this is a second privacy breach. [60] The Employer submits that this matter ought to be dismissed on the basis of no prima facie violation of the collective agreement. With respect to the first grievance the Employer further argues that the allegation is a breach of the Privacy Act which has no application to the Employer. In respect of the second grievance, the Employer submits that it is not a proper individual grievance as the particulars appear to allege concerns regarding the Employer’s disability management program. [61] I find the particulars are sufficient to establish a prima facie case. Grievances 2020-0499-0036 - 2020-0499-0057- 2020-0499-0068 [62] Grievance 2020-0499-0036 is really a communication from the grievor to the Employer. It is dismissed. [63] Grievance 2020-0499-0057 is very difficult to read but appears to focus on an attempt by the Employer to get a doctor’s note. The particulars indicate the issue concerns the Employer’s requirement that the grievor attend an IME. [64] Grievance 2020-0499-0068 states that the grievor has been wrongfully and inappropriately placed on an unpaid medical leave for the dates between September 16th to December 1st, 2020. [65] The Employer submits that all three of these grievances overlap and allege violations of the accommodation process which will be dealt with as part of grievance 2020-0499-0067. [66] On the face of the grievances, they do appear to address different issues. I decline to dismiss 2020-0499-0057 or 2020-0499-0068. Dated at Toronto, Ontario this 21st day of September 2022. “Diane L. Gee” Diane L. Gee, Arbitrator - 11 - Appendix “A” GSB File No. Grievor Union File No. Grievance Date 2016-0660 Potvin, Shayne 2016-0499-0048 05/03/2016 2016-1501 Potvin, Shayne 2016-0499-0088 08/13/2016 2017-0719 Potvin, Shayne 2017-0499-0021 04/21/2017 2017-3293 Potvin, Shayne 2017-0499-0070 11/21/2017 2017-3401 Potvin, Shayne 2017-0499-0083 12/18/2017 2017-3570 Potvin, Shayne 2017-0499-0086 12/28/2017 2018-2625 Potvin, Shayne 2018-0499-0140 09/13/2018 2018-3587 Potvin, Shayne 2018-0499-0161 12/21/2018 2019-0739 Potvin, Shayne 2019-0499-0023 04/08/2019 2019-1045 Potvin, Shayne 2019-0499-0032 05/23/2019 2019-1046 Potvin, Shayne 2019-0499-0033 05/23/2019 2019-1582 Potvin, Shayne 2019-0499-0055 08/06/2019 2019-1583 Potvin, Shayne 2019-0499-0056 08/06/2019 2019-1584 Potvin, Shayne 2019-0499-0057 08/06/2019 2019-1585 Potvin, Shayne 2019-0499-0058 08/06/2019 2019-1721 Potvin, Shayne 2019-0499-0062 08/31/2019 2019-2546 Potvin, Shayne 2019-0499-0078 11/25/2019 2020-0097 Potvin, Shayne 2020-0499-0036 03/11/2020 2020-0098 Potvin, Shayne 2020-0499-0037 03/16/2020 2020-2046 Potvin, Shayne 2020-0499-0057 03/16/2020 2020-2047 Potvin, Shayne 2020-0499-0058 07/13/2020 2020-2048 Potvin, Shayne 2020-0499-0059 09/08/2020 2020-2049 Potvin, Shayne 2020-0499-0060 09/08/2020 2020-2050 Potvin, Shayne 2020-0499-0061 09/18/2020 2020-2403 Potvin, Shayne 2020-0499-0067 12/04/2020 2020-2415 Potvin, Shayne 2020-0499-0068 12/14/2020