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HomeMy WebLinkAbout2020-0477.Semenuk.23-09-25 DecisionCrown 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# 2020-0477 UNION# 2020-0108-0007 See 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 (Semenuk) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Barry Stephens Arbitrator FOR THE UNION Ed Holmes Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER Joohyung Lee Treasury Board Secretariat Legal Services Branch Counsel HEARING June 22 and July 17, 2023 -2 - Decision [1] This case involves the grievor’s termination of employment and 15 other grievances. The grievor is a Correctional Officer (CO) at the Elgin Middlesex Detention Centre (EMDC) and was terminated on March 21, 2022. The grievances raise multiple issues including harassment, discrimination, failure to accommodate, reprisals, as well as the grievance related to the grievor’s termination. [2] At the hearing on June 22, 2023, the employer submitted several preliminary motions, arguing that some of the grievances were inarbitrable because some related to issues that post-date the grievor’s termination, some were res judicata, and some were untimely. In addition, the employer sought orders that specific paragraphs of the particulars be deleted because they refer to the incidents the employer asserted to be inarbitrable. This decision deals solely with the employer’s preliminary motions. [3] For the purposes of this interim decision, I have assumed the union can prove in evidence the allegations related to the grievances, and my comments are not intended to constitute an assessment of the merit or lack of merit with respect to any of the grievances that remain to be litigated. I will deal with each of the preliminary objections separately below. [4] The employer relied on the following authorities: MCSCS (Gallagher), GSB 152/94 (Gray); Westin Harbour Castle Hotel, [2010] CarswellOnt 17919 (MacDowell); South Bruce Grey Health Centre, [2006] CarswellOnt 8409 (Roberts); MCSCS (Primo), GSB 2014-2911 (Misra); MCSCS (Fitzpatrick), GSB 2015-1251 et al (Gee); MAG (Bremner), GSB 2017-2936 (Misra); MCSCS (Lachance), GSB 2008-3102, (Briggs); MCSCS (Liantzakis), GSB 2008-3252 (Petryshen); LCBO (Gamble), GSB 1635/96 (Gray); MCSCS (Hawkes), GSB 2007-2388 et al (Leighton); MOL (Malik), GSB 2010- 0026 (Herlich). [5] The union relied on the following authorities: MCSCS (MYCIAK et al), GSB 2010- 2318 (Briggs); MCSCS (Manna et al), GSB 2017-0662 (Gee); MCSCS (Manna et al), -3 - GSB 2015-1908 (Devins); SOLGEN, (Union), GSB 2019-2154 (Anderson); District of Parry Sound Social Services, [2003] 2 S.C.R. 157. Objection 1 – Grievance re Breach of Privacy filed April 4, 2022 [6] The grievance regarding breach of privacy refers to text messages that were sent by an employee at EMDC about the grievor after he was terminated. The grievor alleged the text communications breached his rights in that the messages disclosed the fact that he had been terminated. Employer Submissions [7] The employer submitted the grievance was inarbitrable because it is based on events that took place after the grievor’s termination on March 21, 2022. The employer argued the collective agreement only covered employees during their period of employment, and that any issues or complaints that arose after termination of employment could not be grieved. The union was not responsible to represent the grievor with respect to any such post-termination matters, nor was the employer required to deal with such issues under the arbitration process, or any other provisions of the collective agreement. The employer asserted that the jurisprudence supported the conclusion that the date of termination was a “bright line”, and that after the date of termination, the collective agreement no longer applied and the GSB no longer had jurisdiction. Union Submissions [8] The union argued that the breach of privacy involved the disclosure to members of the bargaining unit of personal and confidential information related to the grievor’s employment, i.e. that the grievor had been terminated. The fact of the grievor’s termination was a matter that was directly related to and arose from the grievor’s period of employment. The employer had an obligation to protect the grievor’s privacy with respect to his termination and that obligation did not cease after the employer moved to terminate the grievor. -4 - Conclusion and Decision re Privacy Grievance [9] The employer’s objection to the privacy grievance was based on the assertion that the grievor was a former employee at the time of the alleged incident. However, the grievor’s status at the time is yet to be determined. The grievor would have a right to reinstatement if it can be demonstrated that he was terminated without just cause. Until that issue is resolved, he has the status of an employee who has been terminated but who is pursuing his right to reinstatement. His legal status as of April 2022 is contingent on the outcome of this case. If he is reinstated, his employment status would be clarified, and he would legally be considered to have been continuously employed from the date of his unjust termination to the date of reinstatement. It is for this reason that seniority rights and monetary compensation may flow to a reinstated employee, subject to the terms of the arbitrator’s award. A reinstated employee is to be treated as if their employment had not been improperly interrupted as far as this is possible to achieve retroactively. There is no “bright line” unless and until the right to seek reinstatement has been determined and denied at arbitration. If the grievor is reinstated, the issues with respect to the alleged breach of privacy would relate to a period of time when his legal status as an employee would have been confirmed. [10] The issue is not whether the grievor has a potential legal right that can be pursued, but whether that right is properly within the jurisdiction of an arbitrator on the GSB as a matter falling under the collective agreement. In general terms, my view of the state of the jurisprudence is that a matter is within the jurisdiction of the GSB if it arises with respect to an employee’s period of employment. Put another way, the issue in dispute must pertain to a period during which the employee was covered by the terms of the collective agreement. The dispute may actually center on an employment-related statute that an adjudicator on the GSB has jurisdiction to interpret and enforce. However, the grievor must be able to demonstrate that the issue arose at a time when he held the legal status as an employee under the collective agreement. -5 - [11] With respect to the allegation of breach of privacy, if the grievor is reinstated, the dispute would be related to the grievor’s period of employment under the collective agreement and properly within the jurisdiction of the GSB. I would not consider an alleged breach of privacy that occurs after employment has ceased as a matter arising under the collective agreement. Such a dispute would arise under privacy statutes, but not during a time when an employee is covered by the collective agreement. Therefore, if the grievor is not reinstated, the grievance related to the exchange of text messages at the workplace on April 4, 2022, would not properly be before the GSB. [12] For reasons of the efficiency and focus of the hearing, the breach of privacy grievance is deferred pending the outcome of the central grievance related to whether the grievor was terminated with just cause, and I do not require the union to lead any evidence on the grievance at this time. Objection 2 – Grievance re Delay of ROE – Dated June 20, 2022 Submissions of the Parties re ROE Grievance [13] The grievance alleged that the employer, “…purposely withheld my Record of Employment (ROE).” The ROE is to be provided to an employee within five days after the interruption of earnings. The grievor was terminated on March 30, 2022, and the grievance alleged the ROE was issued on June 9, 2022. The grievance seeks that the grievor be “made whole” and paid damages. [14] The employer argued the grievance related to a dispute that occurred after the grievor’s termination and was not properly before the GSB. The union argued the right of entitlement to an ROE flows as a direct result of the employment relationship and the interruption of earnings associated with the termination without just cause, and thus is properly within the jurisdiction of this Board. Conclusion and Decision re ROE Grievance [15] My view on the ROE grievance is similar to that of the privacy grievance discussed above. The grievance raises an issue of alleged breach of a statutory right that -6 - occurred after the grievor’s termination. If the grievor is not reinstated, the issue raised by the grievance is not one the union should be required to pursue as a grievance or to which the employer should be required to respond under the collective agreement. Problems with the issuing of ROE’s do arise from time to time in the workplace and it is not unusual for union officials to intervene informally with employers to assist with the ROE process. Ultimately, however, it is not a matter over which the GSB should have jurisdiction with respect to a former employee. Even if the grievor is reinstated, it may well be that any remedy sought by the grievor related to the ROE dispute would be subsumed in a general order for compensation. Regardless, there is no need to spend hearing time on this issue at this stage of the hearings, and the grievance with respect to the grievor’s ROE is also deferred pending the outcome of his termination grievance. Objection 3 – Grievance re PTSD– Dated September 16, 2022 [16] This grievance relates to a claim that the grievor suffered PTSD injuries as a result of a violent incident in the workplace on January 7, 2018 and as a result of a demonstration that took place at the entrance to the worksite. The demonstration involved the placing of crosses and other symbols in memory of inmates who had died in custody at several institutions, including EMDC. The demonstrations started in May and June 2018 and continued for at least two years. The union filed a health and safety grievance about the employer’s response to the demonstrations on May 26, 2019. A decision was issued on the grievance by the Arbitrator Albertyn on May 3, 2021. Submissions of the Parties re PTSD Grievance [17] The employer argued that the issues related to the memorial installation were put in front of Arbitrator Albertyn, and the grievor’s claim was barred by the principle of res judicata. In addition, the grievance was filed more than three years after the events in question and was untimely. The union responds that the grievance was filed soon after the grievor became aware of the details of the Albertyn decision, and that even if there were issues of timeliness this Board should exercise the discretion to hear the matter given the seriousness of the issues raised. -7 - Conclusion and Decision re PTSD Grievance [18] The grievance is clearly untimely. The incident alleged to have triggered the grievor’s claim dates to January 7, 2018. The events around the memorial addressed by the Albertyn decision started in and around May/June 2018 and were terminated with Arbitrator’s Albertyn’s order that the memorial installation was to be removed. [19] The normal requirements for the filing of timely grievances under the collective agreement are applicable to this grievance as much as to any other. There was no requirement for the grievor to await the outcome of the policy grievance arbitration before filing an individual grievance with respect to the event on January 7, 2018 or the subsequent memorial protests engaged in by grieving families and their supporters. Indeed, the opposite is the case. The requirement in the collective agreement is that individual grievances are to be filed in a timely manner, subject to the right of the employee to ask an arbitrator to waive the strict application of time limits in the appropriate circumstances. Any claim the grievor had with respect to medical injury caused by the employer’s actions or inactions in 2018 and 2019 and after should have been filed at the time. However, the grievance was filed more than three years after the events in question. [20] I do not consider this to be an appropriate case to waive time limits to allow the grievance to proceed. The factors relevant to the question of the reasonableness of delay and the exercise of arbitral discretion to relieve against time limits are set out in the decision of Arbitrator Misra in the MAG award at para. 31. The delay occurred at the point where the grievance should have been filed, not at some later point in the grievance process. The employer has clearly been prejudiced by not being provided timely notice that there was a dispute, and not having had the opportunity to secure evidence, witnesses and so on in order to properly respond to the grievance. A delay of three years is “extreme”, as Arbitrator Petryshen found in Liantzakis. As Arbitrator Gray stated in Gamble, prejudice can be assumed or inferred based solely on length of such an extreme delay. The grievor appears to have been solely responsible for the delay in filing the grievance, and no facts were asserted that -8 - would place the responsibility on any other person or party. Moreover, no reasonable explanation was provided, other than the assertion that the grievor did not file the grievance until he became aware he had a potential claim given the findings in the Albertyn decision, which was not an appropriate reason to delay filing the individual grievance. An employee is not entitled to bide their time, waiting for the outcome of another process before filing a grievance. The obligation to file a timely grievance arose when the events allegedly impacted the grievor’s health, not when the Albertyn decision reached supportive findings. In other words, the collective agreement required the grievor to file his grievance in a timely manner around the events in 2018 and 2019. The nature of the grievance, a claim regarding the grievor’s health and safety, is important, but this does not outweigh the obvious prejudice and lack of reasonable explanation for the failure to file a grievance in a timely fashion. As Arbitrator Briggs found in Lachance, the nature of the grievance in this case may be significant, but that still does not form the basis for an extension to the time limits. [21] For the above reasons, I find the issues raised with respect to the incident of January 7, 2018, and the issues raised with respect to the impact of the memorial demonstrations that started in 2018 are untimely and should be dismissed. [22] With respect to the res judicata objection, the grievance filed with the Albertyn board was a policy grievance that sought appropriate remedies for the broader bargaining unit, such as the removal of the memorial installation. It was not a group grievance, let alone an individual grievance filed on behalf of the grievor. It is true that the union’s statement of particulars filed in that case sought to extend the remedies beyond those listed in the original policy grievance by adding in requests for reimbursement and damages for affected individual employees. Despite this anomaly in the particulars, the Albertyn award responded to the broader implications of the memorial protest as set out in the original policy grievance. The individual remedies requested in the union’s statement of particulars in that case are not mentioned in the award. -9 - [23] It is sufficient to state that there is nothing in the Albertyn award, nor any evidence of any other process or understanding between the parties that would lead me to conclude that the filing, processing, or hearing of the policy grievance had the legal effect of relieving the grievor of the collective agreement obligation to file a timely individual grievance. Given these considerations, I do not think it necessary to rule on the res judicata issue as grievance number 2022-0128-0323 is clearly untimely and should be dismissed for that reason. Objection 4 – Striking Portions of the Particulars [24] The employer also sought an order that certain paragraphs of the union’s statement of particulars should be deleted. The particulars are not a mandatory part of the GSB hearing process, although in a complex case such as this they do represent best practice. The statement of particulars does not constitute evidence, and the facts alleged therein cannot be relied upon by either party unless and until they are formally entered into evidence either through a sworn witness, on consent or otherwise under the rules of evidence. To the extent the particulars signal the union’s intended evidence, I will address any issues of admissibility or relevance as the testimony unfolds. It may be helpful to note that if the union seeks to lead evidence with respect to the five-day suspension in June 2018, the rule arbitrators normally follow is that the record speaks for itself in the case of past discipline that has been grieved and settled. [25] The hearing will continue on dates already scheduled with the parties. Dated at Toronto, Ontario this 25th day of September 2023. “Barry Stephens” Barry Stephens, Arbitrator -10 - Appendix A GSB File Number Grievor Union Grievance Number 2020-0477 Semenuk, Martin 2020-0108-0007 2020-0478 Semenuk, Martin 2020-0108-0008 2020-1698 Semenuk, Martin 2020-0108-0022 2020-2917 Semenuk, Martin 2020-0108-0036 2021-0072 Semenuk, Martin 2021-0108-0005 2021-0073 Semenuk, Martin 2021-0108-0006 2021-0968 Semenuk, Martin 2021-0128-0005 2021-0969 Semenuk, Martin 2021-0128-0006 2021-1651 Semenuk, Martin 2021-0128-0011 2021-1652 Semenuk, Martin 2021-0128-0012 2021-1653 Semenuk, Martin 2021-0128-0013 2022-0590 Semenuk, Martin 2022-0128-0137 2022-2495 Semenuk, Martin 2022-0128-0139 2022-2786 Semenuk, Martin 2022-0128-0182 2022-5346 Semenuk, Martin 2022-0128-0260 2022-8274 Semenuk, Martin 2022-0128-0323