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HomeMy WebLinkAbout2009-1674.Culos.11-08-24 DecisionCommission de Crown Employees Grievance UqJOHPHQWGHVJULHIV Settlement Board GHVHPSOR\pVGHOD Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 7pO   Fax (416) 326-1396 7pOpF   GSB#2009-1674, 2009-1675 UNION#2009-0521-0048, 2009-0521-0049 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Culos) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREKen Petryshen Vice-Chair FOR THE UNIONJane Letton Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYERJamie Kneen Ministry of Government Services Counsel HEARINGJanuary 10 and April 21, 2011. - 2 - Decision [1] Mr. S. Culos, a Correctional Officer at the Mimico Correctional Centre ³0LPLFR´ ILOHGWZRJULHYDQFHVGDWHG$XJXVW4, 2009. In one of them he claims that the Employer contravened the Collective Agreement and the Human Rights Code³LQUHJDUGVWR ongoing harassment in the workplace due to my nHHGIRUDFFRPPRGDWLRQ´+HFODLPVLQWKH RWKHUJULHYDQFHWKDW³WKH(PSOR\HUKDVIDLOHGWR accommodate me due to my disability as covered under the Ontario Human Rights Code´$OWKRXJKWKHJULHYDQFHVGRQRWUHIHUWRD specific incident giving rise to the claims contained therein, the grievances were filed because of the alleged conduct of Mr. T. Jones, Deputy Superintendent, at a meeting that took place at Mimico on November 12, 2008. Given that the grievances were filed almost 9 months after the November 12, 2008 meeting, the Employer requests that they be dismissed because they were not filed in a timely fashion. The Union takeVWZRSRVLWLRQVLQUHVSRQVHWRWKH(PSOR\HU¶V motion. It asserts that the Employer waived it right to raise this objection. It also requests that I exercise the discretion in section 48(16) of the Labour Relations Act to extend the time limits for filing the grievances. This decision only DGGUHVVHVWKH(PSOR\HU¶V timeliness objection. [2] To establish the factual context for the issues in this matter, counsel agreed to some facts and the Union called two witnesses, Mr. Culos and Mr. G. McVeigh, a Staff Representative with the Union. After reviewing the evidence and after considering the submissions of counsel, I am satisfied that the Employer has waived any right to object to the timeliness of these grievances. Given this conclusion, it is unnecessary to decide whether it would have been appropriate to exercise the discretion conferred by section 48(16) of the Labour Relations Act. - 3 - [3] For purposes of providing some context for the waiver issue, I note that Mr. Culos has been diagnosed with Post Traumatic Stress Disorder (PTSD) and depression. The triggering event for these conditions was his discovery of his mother in her home after she committed suicide in March of 2002. He commenced a lengthy medical leave of absence. After treatment that included medication and therapy, Mr. Culos returned to work at Mimico in June or July of 2003 on an accommodated basis. His post was the back door reception area. This post provided limited inmate contact with the prospect that he would have a work environment where anxiety and agitation would be minimized. Over a period of two years he increased his hours to 40 hours a week. From at least the summer of 2006 until the meeting with Mr. Jones on November 12, 2008, Mr. Culos worked a 10 hour day shift, Monday to Friday. He attended a therapy session every Friday at St. Josephs Health Centre. By 2008, Mr. Culos discontinued the regular use of medications for his condition. His regular Employer contact for his accommodation was Mr. D. Douglas. Up until the meeting with Mr. Jones, there is no indication that there had been any issues about his accommodation. [4] As part of the usual routine, Mr. Culos provided Mr. Douglas with some health documentation early on November 12, 2008. At approximately 12:30 p.m., Mr. Culos was called into a meeting with Mr. Jones and Mr. Douglas. The Union contends that Mr. Jones advised Mr. Culos during the meeting that his accommodation was going to be eliminated. It also claims that Mr. Jones made a number of discriminatory comments on the basis of disability. The Employer denies these allegations. For the purposes of this decision it is unnecessary to set out the details RIWKH8QLRQ¶VDOOHJDWLRQV - 4 - [5] Mr. Culos completed his shift on November 12, 2008, but has not returned to work since. He has been on medical leave. The Union claims that the conduct of Mr. Jones at the meeting triggered his PTSD. [6] The circumstances that are more directly related to the waiver issue are as follows. As noted previously, the grievances were filed on August 4, 2009. Mr. McVeigh faxed the grievances to Superintendent0LWFKHOO¶VRIILFHDW0LPLFRon that day. He also on August 4, 2009 sent Superintendent Mitchell an email, the first sentence of which reads as follows: ³)XUWKHUWRRXUFRQYHUVDWLRQWRGDy, I am faxing grievances from Steve Culos to your office today UHJDUGLQJ6WHYH¶VDFFRPPRGDWLRQDQGDFFRPPRGDWLRQPHHWLQJ´7KHSDUWLHVDJUHHGQRWWRKROG a stage two meeting for the grievances. The grievances were subsequently referred to arbitration by the Union. The Notice of Proceeding dated December 8, 2009, indicates that the grievances were scheduled for arbitration to be held on March 29, 2010. The Notice of Proceeding was preceded by Joint File Review, a process in which representative of the parties agree to a Vice- Chair and a date for dealing with the grievances. The parties agreed to use March 29, 2010 for mediation. It was at the mediation on March 29, 2010, approximately 8 months after the grievances were filed, that the Employer raised the issue of timeliness. [7] Counsel for the Union argued that the Employer was in a position to know or should have known that the circumstances which generated the grievances occurred at least by the November 12, 2008 accommodation meeting and that the grievances had therefore been filed beyond the time provided for in the Collective Agreement. Counsel argued that the Employer took the fresh step of participating in the joint file review process without raising a timeliness issue, thereby waiving the procedural irregularity concerning when the grievances were filed. - 5 - Union counsel referred me to the following decisions: OPSEU (Fung/Anand) and Ministry of Revenue (1991), GSB No. 1798/89 et al. (Stewart) and OPSEU (Union Grievance) and Ministry of Community Safety and Correctional Services, [2005] O.G.S.B.A. No. 59 (Herlich). [8] The Employer took the position that waiver did not apply in these circumstances. Counsel for the Employer argued that the Employer raised the issue of timeliness with the Union at the first opportunity it had to do so. Counsel submitted that this opportunity occurred at the mediation because it was only then that the Union provided it with the facts that gave rise to the grievances. [9] The concept of waiver and the applicable legal principles are not new to the GSB and the world of labour arbitration. The governing legal principles are referenced in the decisions relied on by the Union. Since the dispute in this instance concerns the application of the legal principles of waiver and not the principles themselves, it is unnecessary to review the arbitral jurisprudence in detail. [10] The two decisions relied on by the Union are instances where the GSB GHWHUPLQHGWKDWWKHHPSOR\HU¶VREMHFWLRQWRthe timeliness of a grievance could not succeed because the employer had waived its right to make the objection. In the Fung/Anand decision, supra, the employer did not object to the timeliness of a competition grievance until it replied in writing after the stage two meeting. After reviewing some decisions, the Vice-Chair summarized WKHJRYHUQLQJSULQFLSOHDVIROORZV³7KHSULQFLSOHthat these cases establish is that an objection based on non-compliance with time limits is waived when there has been a failure to raise the objection in a timely manner and the taking of a fresh step prior to raisiQJWKHREMHFWLRQ´$IWHU - 6 - referring to the facts of the case, the Vice-Chair proceeds to find thDW³«LWLVFOHDUWKDWDWLPHO\ objection to the failure to comply with the time limits of the Collective Agreement was not made and that a fresh step was taken prior to the timeliness objection being raised. The fact that the objection was made prior to the hearing or on the eve of the hearing does not affect the operation of the waiver. Once a timeliness objection has EHHQZDLYHGLWFDQQRWEHUHYLYHGE\QRWLFH«´ [11] In the Ministry of Community Safety and Correctional Services decision, supra, the employer did not raise a timeliness objection until just before the hearing. After referring to some decisions and an excerpt from Fung/Anand,supra, the Vice-Chair noted DVIROORZV³7KHVH citations and the cases referred to disclose that D³IUHVKVWHS´PLJKWFRQVist of little more than participation in subsequent steps of the grievance procedure or in the referral of a grievance to arbitration. There is no doubt in my mind that, in the present case, the (PSOR\HU¶VSDUWLFLSDWLRQ in the Joint Review Process as contemplated by Article 22.17 of the collective and described WKHUHLQDV³DQLQWHJUDOSDUWRIWKHGLVSXWHUHVROXWLRQPHFKDQLVP´FRQVWLWXWHGDIUHVKVWHSLQWKH SURFHHGLQJV´7KH(PSOR\HULQWKDWFDVHDWWHPSWHd to justify its delay in raising the timeliness objection by arguing that it had no knowledge of the nature of the case until it had received the 8QLRQ¶VSDUWLFXODUV7KH9LFHChair did not find this submission compelling and dismissed the HPSOR\HU¶VWLPHOLQHVVPRWLRQ [12] I am satisfied from the circumstances in this case that the Employer had sufficient information to conclude that there was a timeliness issue soon after the grievances were filed on $XJXVW2QHRIWKHJULHYDQFHVFRPSODLQVDERXW³RQJRLQJKDUDVVPHQWLQWKHZRUNSODFH GXHWRP\QHHGIRUDFFRPPRGDWLRQ´7KHRWKHUgrievance alleges a failure by the Employer to accommodate Mr. Culos. Although the Employer has a different view than the Union about - 7 - what specifically occurred at the November 12, 2008 meeting, it is clear that this meeting was FDOOHGWRGLVFXVV0U&XORV¶DFFRPPRGDWLRQ0UCulos has not returned to the workplace since the day on which the accommodation meeting was held. There is no indication that any issue DURVHDERXW0U&XORV¶DFFRPPRGDWLRQZKLOHKHwas off on his medical leave. The email Mr. McVeigh sent to the Superintendent at Mimico on August 4, 2009 refers to the grievances as ³UHJDUGLQJ6WHYH¶VDFFRPPRGDWLRQDQGDFFRPPRGDWLRQPHHWLQJ´7KHUHIHUHQFHWRWKH accommodation meeting can only relate to the meeting held on November 12, 2008. Although there is no doubt that it received more information about the claims contained in the grievances at the mediation on March 28, 2010, the Employer was aware or should have been aware soon after the filing of the grievances that the claims set out therein related to events that predated Mr. &XORV¶PHGLFDOOHDYHDQGPRVWOLNely related to what occurred at the meeting held on November 12, 2008. [13] The Employer did not raise a timeliness objection soon after receiving the grievances, nor did make such an objection when it agreed to waive the step two meeting or when it participated in the Joint File Review process which likely occurred in December of 2009. It only raised its objection at mediation which took place about 8 months after the grievances were filed. I agree with the submission that the Employer did not raise the timeliness objection at the first reasonable opportunity and that its participation in the Joint File Review process constitutes the taking of a fresh step. It is these circumstances that compel the conclusion that the Employer has waived its right to object to the timeliness of the grievances. - 8 - [14] For the foregoing reasons, the EmployeU¶VWLPeliness motion is hereby dismissed. This matter will continue on dates to be scheduled on agreement of the parties. th Dated at Toronto this 24 day of August 2011. Ken Petryshen, Vice-Chair