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HomeMy WebLinkAboutNurse 23-06-13 IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 509 (the “Union”) AND FRED VICTOR CENTRE (the “Employer”) GRIEVANCE OF D. NURSE BEFORE: S.L. STEWART – ARBITRATOR APPEARANCES: FOR THE UNION: ARIELLE LEWIS FOR THE EMPLOYER: MARCO FIMIANI IRENE XIE THE HEARING IN THIS MATTER WAS HELD ON JUNE 8, 2023. 2 AWARD 1. The grievance before me is dated June 20, 2022. It arises from the February 10, 2022, dismissal of Mr. D. Nurse from his employment as an assistant chef. The Union claims that his dismissal was without just cause. There was a preliminary objection to the grievance based on timeliness. This Award deals only with this objection. 2. There were two aspects to the timeliness objection that was advanced by the Employer. It was argued that the grievance must be dismissed on the basis that it was not filed in a timely manner as prescribed by the Collective Agreement. It was further argued that the circumstances do not establish a proper basis for the extension of time limits for the filing of the grievance pursuant to section 48(16) of the Labour Relations Act, a provision that allows an arbitrator to extend the time for the taking of any step in the grievance procedure where there are reasonable grounds to do so and in the absence of substantial prejudice. As well, it was argued that even if time limits for the filing of the grievance were to be extended, the grievance must be dismissed on the basis that it was not referred to arbitration in a timely manner. In this regard, it was the position of the Employer that I am without jurisdiction to extend time limits in relation to the referral to arbitration and thus without jurisdiction to hear and determine the grievance. 3. It was the Union’s position that interests of fairness and justice should prevail over what Ms. Lewis characterized as technical arguments. It was noted that the matter involves a dismissal, perhaps the most serious kind of matter that can 3 come before an arbitrator and certainly a matter with profoundly serious consequences for Mr. Nurse. Mr. Nurse was described as a dedicated employee who was devoted to his work and to the vulnerable population that he served. It was submitted that the timeliness objection should be dismissed and that as a matter of fundamental fairness and due process, I should proceed to hear the grievance on its merits. 4. The parties agreed on the following facts: 1. For the purposes of the Employer’s motion regarding timeliness and arbitrability in connection with the above-mentioned Grievance No. 2022-0509-0012 (the “Grievance”), the facts stipulated below are deemed to be true and admitted into evidence subject to any submissions the Employer and the Union (together the “Parties”) wish to make with respect to relevance or weight. 2. The Parties have agreed that the documents referenced in this Agreed Statement of Facts will be admitted into evidence without the requirement of formal proof of their authenticity, and will be deemed to be true copies of the documents they purport to be, printed, written, signed or executed as they purport to have been, and, if the documents purport to be copies of correspondence (including emails), the originals will be deemed to have been sent to the addresses and received. 3. The Parties reserve the right to call additional viva voce evidence to supplement the facts set out herein. Collective Agreement 4. At all material times, the Employer and the Union were subject to a collective bargaining agreement effective April 1, 2020 to March 31, 2023 (the “Collective Agreement”) COVID-19 Vaccination Policy 5. On or around September 8, 2021, the members of the Union that formed part of the Labour Management Committee were provided with the final version of the Employer’s COVID-19 Vaccination Policy and corresponding documents (the “Vaccination Policy”). 6. On or around September 10, 2021, the Vaccination Policy was provided to all staff. 4 The Grievance 7. On or around June 20, 2022, the Union filed the Dexter Nurse Grievance with the Employer in relation to the termination of Dexter Nurse’s employment. The Parties (a) The Employer 8. The Employer is a social services organization that fosters long-lasting and positive change in the lives of homeless and low income people living all across Toronto. The organization offers a wide range of programs that help individuals find the support that they need, including but not limited to, finding affordable housing or emergency shelter, job training or counselling, food access or health information. Its mission is to provide responsive, accessible and innovative housing and services for people who are experiencing homelessness and poverty, and to work for a more equitable society. (b) The Union 9. The Union is certified as the exclusive bargaining agent for all employees of the Employer, with exceptions. (c) Dexter Nurse 10. Mr. Nurse is a former employee of the Employer. He commenced employment with the Employer on or around May 7, 2018 and held the position of Assistant Chef - Catering in the Employer’s Food Services department. Termination of Dexter Nurse’s Employment 11. On or around October 20, 2021, Mr. Nurse received a letter of expectation from the Employer regarding the Employer’s Vaccination Policy. A copy of the correspondence is attached. 12. On or around November 4, 2021, Mr. Nurse received a letter from the Employer regarding his non-compliance with the Employer’s Vaccination Policy. 13. On or around November 13, 2021, Mr. Nurse received a letter from the Employer confirming he was being placed on an unpaid leave until at least January 7, 2022. A copy of the correspondence is attached. 14. On or around December 16, 2021, Mr. Nurse received a letter from the Employer advising that the Employer’s records indicated that he had yet to comply with the Vaccination Policy. A copy of the correspondence is attached. 5 15. On or around January 24, 2022, Mr. Nurse received an email from the Employer with a letter dated January 20, 2022 attached. 16. On or around February 10, 2022, the Employer terminated Mr. Nurse’s employment alleging just cause. Events Following Termination of Dexter Nurse’s Employment 17. On or around June 20, 2022, Carolyn Lessard, Union Steward, emailed Ms. Aden, three grievances: one for Mr. Nurse, and two others unrelated to the Grievance. 18. On or around July 6, 2022, Ms. Hui emailed Ms. Aden to advise that the Employer should inform the Union that the Grievance was filed out of the timeframe provided for in the Collective Agreement. 19. On or around July 7, 2022, Ms. Dos Ramos emailed Ms. Hui to update her on the telephone conversation she had with James Sommerville earlier that day. Ms. Dos Ramos explained to Ms. Hui that she told Mr. Sommerville, the Grievance was submitted over four months after the respective termination, was out of time and the Employer would be denying the Grievance. 20. On or around July 8, 2022, Ms. Aden emailed Ms. Lessard to advise that the Employer would be declining the Grievance because it was filed more than 10 working days from the date of the termination. 21. On or around December 1, 2022, Cameron MacMaster, Secretary – Toronto Regional Office, emailed Ms. Dos Ramos to advise that the Grievance would be proceeding to arbitration. 22. On or around December 8, 2022, Ms. Dos Ramos emailed Carlotta Ewing, OPSEU Staff Representative, a letter regarding the Grievance. The letter set out, among other things, that the Grievance could not proceed to arbitration because it is inarbitrable and out of time. 23. On or around December 8, 2022, Vanessa Dunne, Grievance Secretary – Region 5, emailed Ms. Dos Ramos in connection with the Grievance. The email stated the following: We note your objection, which you may raise in front of an Arbitrator. The Union will be proceeding to arbitration with this grievance, kindly advise regarding arbitration selection. 5. In addition to the foregoing facts, there was testimony adduced by the Employer from two members of management, Ms. A. Aden and Ms. A. Hui. 6 Their testimony provided some context to the agreed facts and as to the manner in which the relevant Collective Agreement provisions are administered between these parties. Of significance to the decision that I am required to make is the evidence to the effect that there was no request for extension of time limits for the referral of the grievance to arbitration following the denial of the grievance on July 8, 2022. As noted in the agreed statement of facts, the next communication on the matter was on December 1, 2022, when the matter was referred to arbitration. 6. The following Collective Agreement provisions are directly relevant to the timeliness objection: ARTICLE 9- GRIEVANCE PROCEDURE 9.01 Any dispute involving the application, interpretation, administration, or alleged violation of this Agreement, including any question as to whether a matter is arbitrable, may be made the subject of a grievance and an earnest effort shall be made to settle such a grievance as quickly as possible. 9.02 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 is encouraged to discuss such complaint with their immediate supervisor, giving them the opportunity of adjusting their complaint, prior to filing a grievance. Should the complaint concern allegations of serious misconduct by the immediate supervisor, the employee is encouraged to discuss the complaint with the next level of management or human resources. 7 9.03 The Employer shall be under no obligation to consider or process any grievance unless such a grievance has been presented to the Employer in writing as provided in this Article. 9.04 Any time spent by a grievor or a Union Steward in processing or dealing with a grievance shall be unpaid time (but without loss of seniority or benefits) except as provided under Article 7.05 of this Agreement. 9.05 The Grievance Procedure is as follows: (a) Step 1: (i) The Union may file a written grievance on behalf of an employee with the employee's manager (or designate(s)) within ten (10) Working Days of the date that the circumstances giving rise to the grievance occurred or should reasonably have become known to the grievor. The written grievance must be signed by a Steward and the grievor; (ii) The grievor, a Steward and up to two (2) management representatives (or designate(s)) shall meet within ten (10) Working Days of the grievance being filed, after which management's written response will be provided to the Union within ten (10) Working Days of such meeting. (b)Step 2 (i) Failing settlement at Step 1, the Union may submit the written grievance to the Human Resources Director (or designate(s)) within ten (10) Working Days of management's written response under Step 1, (ii) The Human Resources Director and the employee's senior manager and/or any other management representative as appropriate (or their respective designate(s)) shall meet with a staff representative of the 8 Union, a Steward and the grievor, within ten (10) Working Days of receiving the grievance at Step 2 and shall render their decision in writing within ten (10) Working Days following the meeting. 9.06 Policy Grievance The Union shall have the right to initiate a policy grievance concerning a dispute involving a question of general application or interpretation of this Agreement which generally affects the bargaining unit. A policy grievance shall be initiated at Step 2, provided it is presented within ten (10) Working Days of the date that the circumstances giving rise to the grievance occurred or ought reasonably to have been known to the Union, and the applicable provisions of the grievance and arbitration procedures shall apply. 9.07 Group Grievances Where two (2) or more employees have grievances arising out of the same facts and each employee would be entitled to grieve separately, then such grievance(s) shall be submitted as a group grievance at Step 2 within ten (10) Working Days of the date that the circumstances giving rise to the grievances occurred or ought reasonably to have been known to the grievors and all applicable provisions of the grievance and arbitration procedures shall apply. 9.08 Suspension or Discharge Grievance A grievance in respect of a suspension or a discharge of an employee, shall be initiated at Step 2, provided that it is presented within ten (10) Working Days of the first date of the suspension or the date of the discharge, and all provisions of the grievance and arbitration procedures shall apply. 9.09 Employer Grievance The Employer may institute an Employer grievance by referring it in writing to the Union at Step 2 within ten (10) Working Days of the date that the circumstances giving rise to the grievance occurred or should reasonably have become known to the Employer. The grievance shall specify a description of the relevant facts and the nature 9 of the grievance, identify the provisions of the Collective Agreement alleged to have been violated, and the remedy sought and all applicable provisions of the grievance and arbitration procedures shall apply. 9.10 Any grievance which is not commenced or processed through the next stage of the Grievance Procedure within the time limit specified shall be deemed to have been withdrawn unless the applicable time limit has been extended by mutual agreement in writing between the Employer and the Union. It is acknowledged that Section 48(16) of the Labour Relations Act (Ontario) applies with respect to the extension of time for taking any step under this Grievance Procedure. 9.11 All grievances shall include the name of the grievor(s), a description of the relevant facts and the nature of the grievance, the Article(s) of the Agreement allegedly violated and the remedy sought. 9.12 The employee has the right to be accompanied and represented by a Union Steward in all meetings with the Employer in the grievance or arbitration procedures. ARTICLE 10- ARBITRATION PROCEDURES 10.01 Where a difference arises between the parties relating to the interpretation, application, administration or alleged violation of this Agreement, including any question as to whether a matter is arbitrable, either of the parties may, after exhausting the Grievance Procedure established by this Agreement, notify the other party in writing of its desire to submit the difference or allegation to arbitration. Such notification must be given within fifteen (15) Working Days of the decision at Step 2 of the Grievance Procedure. 10.02 An employee who is summoned or subpoenaed to attend at an arbitration hearing between the Employer and the Union and the grievor whose individual 10 grievance is the subject matter of the arbitration hearing and one (1) Steward (provided that the Union notifies the Employer at least one (1) week in advance that the Steward is to attend the hearing) shall not lose any regular non-overtime wages and benefits for regular scheduled working hours missed as a consequence of their attendance at such arbitration hearing. The Union will reimburse the Employer for the cost of wages and benefits paid by the Employer to the foregoing individuals with respect to their attendance at such arbitration hearing (other than an employee who is summoned or subpoenaed at the request of the Employer). The Employer shall invoice the Union monthly and the Union shall pay such invoices in full by not later than the fifteenth (15th) of the following month. 10.03 A sole Arbitrator shall first be chosen by mutual agreement of the parties. The party making the referral to arbitration shall propose in writing the names of three (3) arbitrators to hear the grievance. Within ten (10) Working Days after receiving such notice the other party shall respond by either agreeing to one of the proposed arbitrators or by proposing alternatives. Failing agreement within thirty (30) Working Days from the date of the written request for arbitration, either party may apply to have an arbitrator selected by the Minister of Labour for the Province of Ontario through the Office of Arbitration. 10.04 The Arbitrator shall hear the grievance and shall issue a decision and the decision shall be final and binding upon the parties and upon any employee affected by it. The Arbitrator will -however be without jurisdiction to make any decision inconsistent with the provisions of this Agreement or to alter, modify or amend any part of this Agreement. 11 10.05 The Union and the Employer shall each pay one-half (1/2) of the fees and expenses of the Arbitrator. 7. The Employer relied on the following authorities: Abitibi-Consolidated Inc. v. International Union of Operating Engineers Local 865, 2003 52826 (ON LA) (Slotnick); Big Bear Service Employees Association v Waste Management Inc, 2012 CanLII 23134 (ON LA) (Mohamed); Bridgepoint (Health) v. Canadian Union of Public Employees, Local 79, 2015 CanLII 19729 (ON LA) (Stout); Essar Steel Algoma Inc v. United Steelworkers, Local 2251, 2011 CanLII 57527 (ON LA) (Herlich); Leisureworld Inc. v. SEIU, Local 204, 1995 CanLII 15437 (ON LA) (Petryshen); SEIU Local 204 v. Leisureworld Nursing Homes Ltd.,1997 CarswellOnt 830 (Ont. Div. Ct.); SEIU Local 204 v. Leisureworld Nursing Homes Ltd, 1997 CarswellOnt 4746 (ONCA); Ontario Teachers' Pension Plan Board v. O.P.S.E.U. (Cote- Tiahnybok), 1998 CanLII 30103 (ON LA) (Tacon); Regional Municipality of Waterloo (Grand River Transit) v. Unifor, Local 4304, 2021 CanLII11359 (ON LA) (Randazzo); Sobeys Milton Retail Support Centre v. UFCW, Local 175, 2011 CanLII 32353 (ON LA) (Tims); Terrace Bay Inc. v. United Steelworkers, Local 665, 2020 CanLII 93674 (ON LA) (Bernhardt); and Toronto District School Board v. CUPE Local 4400, 2022 CanLII 40476 (ON LA) (Misra). The Union relied on the following authorities: Becker Milk Co. v. Teamsters, Local 647 (1978), 19 L.A.C. (2d) 217 (Burkett) and Canada Post Corporation v. Canadian Union of Postal Workers (Frolak),1992 CarswellNat 2141 (Shime). 12 8. As noted at the outset of this Award, the timeliness argument that was advanced by the Employer has two elements. The first is that the filing of the grievance was untimely. The second is that the referral to arbitration was untimely. 9. It is clear that neither the filing of the grievance nor the referral of the matter to arbitration was in compliance with the time limits provided for in the Collective Agreement. It is also clear that I have jurisdiction to extend the time limits for the filing of the grievance in the appropriate circumstances. However, even if I were to find that there were reasonable grounds to do so and that there was no substantial prejudice to the Employer in connection with the untimely filing of the grievance, there is still the jurisdictional issue of the effect of the untimely referral of the matter to arbitration. For the reasons set out below, I have concluded that as a result of its untimely referral to arbitration, I have no jurisdiction to consider the merits of the grievance. Accordingly, I will not address the issue of the untimely filing of the grievance. 10. When the grievance was denied on July 8, 2022, the timeline for the referral to arbitration commenced running. The effect of the mandatory language of Article 10.01 of the Collective Agreement is that for a referral to arbitration to be timely, it “must” be made within 15 working days. The Collective Agreement is clear in Article 10.04 that I am without jurisdiction to make any decision inconsistent with its provisions or to alter, modify or amend any part of it. Section 48(16) of the Labour Relations Act provides for the discretion of an arbitrator to extend timelines “in the 13 grievance procedure”. Accordingly, I turn to the issue of whether the referral to arbitration in this instance falls within the ambit of the grievance procedure. 11. The issue of the application of section 48(16) to a referral to arbitration was addressed concisely and with clarity by the Divisional Court in Leisureworld, supra, as follows: 10. The legislative history of the relevant sections in the Labour Relations Act is central to the issue. 11. Labour Relations Act, R.S.O. 1990, c. L.2, s. 45(6) provides: Except where a collective agreement states that this subsection does not apply, an arbitrator or arbitration board may extend the time for the taking of any step in the grievance procedure under collective agreement, notwithstanding the expiration of such time, where the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension. 12. In 1992, the wording of the section was amended to provide: 45 (8.3) An arbitrator or arbitration board may extend the time for any step in the grievance procedure or arbitration procedure under a collective agreement, despite the expiration of time, if he, she or it is satisfied that there are reasonable grounds for the expansions and that the opposite party will not be substantially prejudiced by the extension. 13. The Labour Relations Act 1992 was repealed in November 1995, and replaced by the Labour Relations Act, 1995 (being Schedule ‘A’ to the Labour Relations 14 and Employment Statute Law Amendment Act, 1995, S. O. 1995, c.1). The operative provision now is: 48(16). Except where a collective agreement states that this subsection does not apply, an arbitrator or arbitration board may extend the time for the taking of any step in the grievance procedure under a collective agreement, despite the expiration of time, where an arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension. The Court went on to note in paragraph 17 that: The provisions which bestow jurisdiction on the Board to relieve from time limitation periods in the present legislation is found in s. 48 (16), which authorizes relief from time constraints in the grievance procedure. It does not confer jurisdiction on the Board to relieve from time limitation, as did the relevant 1992 legislation in s. 45(8.3), for any step in the grievance procedure or arbitration procedure. 12. In paragraph 18, the Court endorsed the reasoning of the arbitrator in St. Joseph’s Health Center v. London and District Service Workers Union, Local 2020, (January 11, 1996, unreported decision of D. Williamson) wherein it was concluded that the effect of the statutory amendment was that: … the scope for the arbitrator to extend the time limits is now restricted to any step in the grievance procedure, rather than encompassing any step in the grievance or arbitration procedure (emphasis in the original). While the arbitration procedure and the grievance procedure are connected in that they both address the processing of a grievance relating to the same issue, the arbitration procedure and the grievance procedure are separate links in the process and the referral to arbitration is not part of grievance procedure. As such, the arbitrator is 15 without discretion to extend the time limit for referring the grievance following the third step reply by the Employer. Accordingly, at paragraph 19, the Court stated: The jurisdiction to grant relief from time limitations with respect to grievances cannot and should not be interpreted to also grant relief from the time limits for referral to arbitration. Section 48(16) is clear and unambiguous. To conclude otherwise would mean that the deletion of the words “or arbitration” from the 1995 legislation had no effect whatsoever. The words in the statute must be given their clear meaning. The Board had no jurisdiction to extend the time limit for referral to arbitration. The matter then proceeded before the Ontario Court of Appeal and in a brief decision, the Court endorsed the decision of the Divisional Court and concluded that the Legislature had: … intentionally drawn the distinction between “grievance procedure” and “arbitration procedure’ and, accordingly, in our view did not intend to include steps in arbitration procedure in s. 48(16). 13. Accordingly, on the basis of this binding judicial authority, it is abundantly clear that I am without jurisdiction to extend time limits in connection with the arbitration process and the only issue is whether the extension of time limits sought here is in connection with the grievance procedure or the arbitration procedure. A referral to arbitration has been found to be encompassed in the grievance procedure in certain instances, based on the specific language of the collective agreement being considered. That conclusion was reached in James Bay General and PSAC (Loone) (2003), 126 L.A.C. (4th) 1 (Devlin) and Ajax Precision Manufacturing (Triton Division) and USW, Local 9042 (Borscevski), (1999), 85 L.A.C. (4th) 280 (Shime), 16 both referred to in Terrace Bay Inc. supra. However, it is my conclusion that the analysis that prevailed in those cases cannot prevail here, given the provisions of the Collective Agreement. 14. Under the Collective Agreement before me, as Mr. Fimiani emphasized, there is a clear distinction between the grievance and arbitration procedures. Arbitration cannot be characterized as a step in the grievance procedure in this instance, given the structure and content of Articles 9 and 10 of the Collective Agreement. The parties were explicit in the creation of two separate procedures. Moreover, the parties have specifically included reference to section 48(16) of the Labour Relations Act in Article 9.10 under the heading “Grievance Procedure”, wherein it is acknowledged that this provision “applies with respect to the extension of time for taking any step under this Grievance Procedure”. There is no similar acknowledgement under the separate “Arbitration Procedures” provisions contained in Article 10 of the Collective Agreement, with the obvious implication that section 48(16) can have no application in connection with timelines that arise in the context of a referral to arbitration. The relief being sought here is in connection with the arbitration process. The conclusion that the result in Leisureworld must apply in this instance is inescapable. 15. In her submissions, Ms. Lewis emphasized that in Becker Milk, supra, and in Canada Post, supra, both arbitrators made reference to the importance of an employee who is dismissed having the opportunity to challenge a matter of such significance. She noted that they both extended time limits, allowing the grievances 17 to be heard on their merits. There can be no doubt that dismissal is a matter of considerable importance and I agree entirely with these arbitrators in this regard. In both of those cases, however, there was no issue as to the arbitrator’s jurisdiction, as there is in the case before me. Arbitrator Burkett was dealing with the timeliness of the filing of a grievance and the jurisdiction to consider an extension of time limits pursuant to section 48(16) of the Labour Relations Act was clear. That provision does not apply here. Arbitrator Shime was dealing with the timelines of a referral to arbitration in the federal jurisdiction in the context of an express provision in the collective agreement authorizing an arbitrator to consider the extension of time limits in connection with a referral to arbitration. No such provision exists in the Collective Agreement before me. Accordingly, these authorities do not provide a basis for my jurisdiction to relieve against the consequences of the untimely referral of the grievance to arbitration. 16. In summary, I am bound by the provisions of the Collective Agreement, the statutory provisions of the Labour Relations Act, and the judicial decisions that have interpreted those provisions. Notwithstanding the seriousness of the matter and the value of a hearing on the merits, matters that were eloquently expressed by Ms. Lewis, I am without jurisdiction to proceed with such a hearing, given the untimely referral of the matter to arbitration. Accordingly, the grievance is dismissed. Dated at Toronto, this 13th day of June, 2023 “S.L. Stewart” S.L. Stewart - Arbitrator