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HomeMy WebLinkAbout1986-0492.Pierre.88-02-22Before: -. K.L. Verity J. Best P.D..Camp Vice-Chairman Member Member For the Grievor: R. Stoykewych COUIlSt?l Cavalluzzo, Hayes and Lennon Barristers and Solicitors For the Employer: J. F. Benedict Manager, Staff Relations 8 Compensation Human Resources Branch Ministry of Correctional Services Hearing: File to492186 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEHRNT BOARD OPSEU (Veronica Pierre) and The Crown in Right of Ontario (Ministry of Correctional Services) October 19, 1987 Employer ; -2 - INTERIM DECISION The sole issue before us is the timeliness of the filing of this grievance. Throughout the various steps of the grievance. procedure and at the hearing the timeliness for the processing of exceeded. Ms. Veronica Pierre fi 1 alleged an:Employer violation of Article 18 of the Collec t follows: "I grieve that Employer maintained that the this grievance had been greatly ed a grievance on March 4, 1986 which the Health and Safety provisions of ive Agreement. The grievance filed reads as 8.7 the employer did not provide proper Health and Safety measures. W.‘7en during my regular work I was exposed to an T.B. infectious inmate and had to undergo treatment." The settlement requested was: "Any damages that may arise from the treatments side affects etc. Loss of pay or any related expenses". ,' The events giving rise to this grievance can be briefly summarised. At all relevant times; the grievor was employed as a Correctional Officer 1 at Maplehurst.Correctional Centre. Apparently i nmate "M" resided at Maplehurst from October 9, 1984 to the date of _ -3 - * his discharge on January 15, 1985. On October 31, 1984, Maplehurst authorities were informed that inmate "M" had been exposed to T.B. while previously incarcerated at the Hamilton-Wentworth Detention Centre. Certain medical procedures were followed as a result of this information, including several chest x-rays of the inmate. These procedures apparently satisfied Maplehurst medical and health care officials that the inmate did not have active T.B. However, following the grievor's discharge, a Hamilton respiratologist advised Maplehurst on February 7, 1985 that the former inmate now had a case of active T.B. Maplehurst medical staff took immediate action and co-ordinated its response in co-operation with Halton Regional Medical Officer of Health, Dr. Graham L. Pollett. Maplehurst Superintendent A. J. Roberts issued a memorandum dated February 7, 1985 which allegedly was sent to all staff. The memo reads as follows: 0 -. "MANTOUX (TB) TESTING At the request of the Health Authority we shall be, over the coming few weeks, conducting the ,' above testing. An A.T.C. inmate who was released in January may have had TB during his incarceration and therefore, simply as a precautionary measure, our medical staff will be testing all staff and inmates who might have had contact. There is no need for alarm, this is quite a routine procedure. The Health Unit will contact each staff member in the areas involved to arrange the test but any staff who wish to be tested 'just in case' is welcome to contact the Health Unit to arrange a test." -4 - At the hearing, Mrs. Elizabeth Clark, Maplehurst Health Care Co-ordinator, detailed the procedures followed. Briefly stated, all inmates and staff who might have come into contact with inmate "M" were given the Mantoux Test, which apparently is a skin test. In February, the grievor was given the Mantoux Test and had a positive result. On February 20, 1985, the grievor was given a chest x-ray at Oakville Trafalgar Memorial Hospital. The result of that chest x-ray was normal in the sense that there was no evidence of T.B. According to Mrs. Clark's testimony, the grievor was treated asa "Eantoux Convertor". Mrs. Clark explained that a Flantoux Convertor meant a person who tested positive on the Mantoux Test when previously the test results were negative, or alternatively there had been no ,. ,'> previous testing. It was Mrs. Clark's evidence that a total of six Naplehurst Employees including the grievor were x-rayed. Mrs. Clark testified that the grievor was advised of the x-ray result between February 20 and April 2. Mrs. Clark testified that on April 2 she wrote to the Medical Officer oft Health listing the names of the "Convertors" ; together with the names of their personal physicians. On April 18, 1985, the Medical Officer of Health wrote to the grievor's.physician Dr. L. Librach. In that letter, Dr. Pollett identified the grievor as a Mantoux Convertor following contact with a known case of Tuberculosis. Dr. Pollett's letter read, in part, as follows: -5 - "Under the Health Protection and PromotionAct, 1982, the Medical Officer of Health has responsibility for the control of Tuberculosis. The purpose of this letter is to assist you in determining what course of action should be followed. Enclosed is a copy of the American Thoracic Society's publication - 'Treatment of Tuberculosis and Other Mycobacterial Diseases.' This document represents the current standard for control and treatment of this disease. I refer you to page 4 and the section entitled 'Preventive Therapy of Tuberculosis Infection.' You will note that all newly infected persons are recommended to receive prophylactic teatment with isoniazid (INH) - 300 mg daily on a single dose for 12 months." It was Mrs. Clark's testimony that the personal physician of each Mantoux Convertor was sent photocopies of the relevant x-ray report. However, she was unable to produce any evidence that such a,,., letter had been sent to Dr. Librach and assumed that the procedure had been followed. The grievor testified that she did not see her physician Dr. Librach between February and November of 1985. According to the grievqr's testimony, she was advised by Dr. Librach in mid-November, 1985 that she was-a Mantoux Convertor and should immediately commence ; drug treatments. The Grievor stated that Dr. Librach described possible side effects of the drug INH and recommended that she report the matter to Maplehurst authorities. -6 - On November 13 the grievor spoke with Maplehurst Assistant Superintendent Ferguson. Similarly, on both November 13 and 14 the grievor spoke with Mrs. Clark. On all accounts the grievor was in an agitated state and had difficulty understanding the meaning of Mantoux Convertor. In any event, she did commence drug treatments as recommended, shortly after November 15. The grievor testified that she did not receive a copy of Superintendent Robert’s memorandum of February 7, 1985. Further, she stated that she had not been told the results of either the skin test or the x-ray procedure and was of the belief that both procedures were “routine”. Mrs. ivlarilyn Shrader, a Registered Nurse at Maplehurst, testified that on more than two occasions she inquired as to whether’? the grievor had seen her personal physician. lMrs. Clark recalled that in November, 1985 the grievor acknowledged that she had not spoken with her family doctor when requested to do so by Mrs. Shrader. In cross-examination, when asked by Mr. Benedict if she had been advised by nurse Shrader on several occasions following the x-ray to see her family doctor, the grievor rep1 ied : *I can’t recall”. -. ; The grievor testified that she spoke to Union President Steve Riley In November, 1987 regarding her concern about the positive result of the skin test. Mr. Riley spoke with Superintendent Roberts and with Mrs. Clark and apparently satisfied himself in his own words that, ‘it was no big deal”. Mr. Riley shared his findings with Ms. Pierre testif -7 - and suggested that she see a lawyer. In particular, Mr. Riley ed that there had been no request on the grievor's part to file a grievance. Further, he candidly admitted that he did not believe the matter was grievable. On February 25, 1986, the grievor met with Union Chief Steward Brian McMullan, as a direct result of receiving unfavourable work appraisals. The grievor testified that she believed that the negative performance appraisals were directly linked to her involvement with the health issue. In any event, there is no dispute that Mr. McMullen advised the grievor of her rights under the Collective Agreement and the fact that she should file a grievance. As a result, the present grievance was filed on March 4, 1986. I r. The grievor's final contract of 31, 1986 in the absence of a further appoi Public Service Act. The Employer takes the position that the grievance was filed I employment expired on March I ntment under s. 8 of the I well beyond the time limits specified in the Collective Agreement and that accordingly the Board was without jurisdiction to hear the merits. The Union contends that the grievance was filed in a timely fashion. Arbitral precedents were submitted by both parties. Article 27 entitled Grievance Procedure merits repetition: ARTICLE 27 - GRIEVANCE PROCEDURE 27.1 It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whethera matter is arbitrable. 0 27.2. 1 27.2. 2 27.3. 1 2' An employee who believes he has a complaint or a difference shall first discuss the complaint or difference with his supervisor within twenty (20) days of first becoming aware of the complaint or difference. If any complaint or difference is not satisfactorily settled by the supervisor within seven (7) days of the discussion, it may be processed with an additional ten (10) days in the following manner: STAGE ONE The employee may file a grievance in writing with his supervisor. The supervisor shall give the grievor his decision in writing within seven (7) days of the submission of the grievance. STAGE TWO 7.3.2 If the grievance is not resolved under Stage One, the employee may submit the grievance to the Deputy Minister or his designee within seven (7) days of the date that he received the decision under Stage One. In the event that no decision in writing is received in accordance with the specified time limited in Stage One, the grievor may submit the grievance to the Deputy Minister or his designee within seven (7) days of the date that the supervisor was required to give his decision in writing in accordance with -9 - Stage One. 0 .- 27.3.3 The Deputy Minister or his designee shall hold a meeting with the employee within fifteen (15) days of the receipt of the grievance and shall give the grievor his decision in writing within seven (7) days of the meeting. 27.4 If the grievor is not satisfied with the decision of the Deputy Minister or his designee or if he does not receive the decisions within the specified time the grievor may apply to the Grievance Settlement Board for a hearing of the grievance within fifteen (15) days of the date he received the decision or within fifteen (15) days of the specified time limit for receiving the decision. 27.5 The employee, at his option, may be accompanied and represented by an employee representative at each stage of the grievance procedure. DISXISSAL 27.6.1 Any probationary employee who is dismissed or released shall not be entitled to file a grievance. 27.6.2 Any employee other than a probationary employee who is dismissed shall be .,entitled to file a grievance at the second stage of the grievance procedure provided . he does so within twenty (20) days of the * date of the dismissal. 27.2.1 An employee who is a grievor or complainant and who makes application for a hearing before the Grievance Settlement Board or the Public Service Labour Relations Tribunal shall be allowed leave-of-absence with no loss of pay and with no loss of credits, if required to be in attendance by the Board or Tribunal. ” - 10 - 27.7.2 An employee who has a grievance and is required to attend meetings at Stage One and Two of the Grievance Procedure shall be given time off with no loss of pay and with no loss of credits to attend such meetings. 27.7.3 This section shall also apply to the Union Steward who is authorized to represent the grievor. 27.7.4 The Union shall advise the Directors of Personnel of the affected ministries with copies to the Executive Director, Staff Relations Division, of the Union Stewards together with the areas they are authorized to represent, which list shall be updated at least every six (6) months. UNION GRIEVANCE 27.8.1 where any difference between the rmployer and the Union arises from the interpretation, application and administration or alleged contravention of the Agreement, the Union shall be entitled to file a grievance at the second stage of the grievance procedure provided it does so within thirty (30) days following the occurrence or origination of the circumstances giving rise to the grievance. 27.8.2 Where the difference between the Employer -and the Union involves more than one (1) ministry, the Union shall be entitled to file a grievance with the Executive Director of Staff Relations provided it does so within sixty (60) days following the occurrence or origination of the circumstances giving rise to the grievance. 27.8.3 A submission of the grievance to the Executive Director of Staff Relations under this section shall be considered to be the second stage of the grievance procedure for the purpose of this Article. Union grievances shall be signed by the President or Vice-president. - z 0 - 11 - INSURED BENEFITS GRIEVANCE 27.9.1 Where an employee has a complaint that he has been denied benefits pursuant to the insured benefits plans specified in Articles 39, 40, 41, 43 and 56, he shall first discuss the complaint with his supervisor within twenty (20) days of first becoming aware of the complaint. ,o 27.9.2 (a) If the complaint is not satisfactorily resolved by the supervisor within seven (7) days of the discussion, the employee may refer the complaint, in writing, to the Joint Insurance Benefits Review Committee established in Appendix 6 and addressed to the Benefits Policy Branch, Civil Service Commission, within an additional ten (10) days. (b) Any referral to the Joint Insurance Benefits Review Committee under 27.9.2(a) shall include a release of information form (Appendix 7) completed, signed and dated by the employee. (c) The Joint Insurance Benefits Review Committee shall consider the complaint and the Benefits Policy Branch shall give the employee its decision in writing within sixty (60) days of the committee meeting at which the complaint is discussed. 27.9.3 (a) If the complaint is not satisfactorily 6 resolved under 27.9.2, the employee may file a grievance in writing with the Executive Director, Staff Relations or his designee within seven (7).days of the date he received the decision under 27.9.2(c). In the event that no decision in writing is received in accordance with the specified time limits in 27.9.2(c), the grievor may submit the grievance to the Executive Director of Staff Relations within seven (7) days of the date that the Benefits Policy Branch was required to give its 27.10 27.11 27.12 27.13 27.14 - 12 - decision in writing in accordance with 27.9.2(c). (b) A submission of the grievance to the Executive DiKeCtOK or his designee under this section shall be considered to be the second stage of the grievance procedure for the purpose of this Article. Where an employee files a grievance claiming improper layoff and the grievance is referred to the Grievance Settlement Board in accordance with 27.4, the Union shall notify the Employer, in writing, at least three (3) weeks prior to the date established for the Board's hearing, of the title and location of the position which will be the subject matter of the claim before the Board. Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn. In this Article, days shall include all days exclusive of Saturdays, Sundays and designated holidays. The time limits contained in this Article may be extended by agreement of the parties in writing. -The Grievance Settlement Board shall have no jurisdiction to alter, change, amend or ; enlarge any provision of the Collective Agreement." , ‘: There can be no doubt that the time limits set out in Article 27 are mandatory. The parties themselves acknowledged that fact. See generally, Parr, 317/82 (Swan), Goheen, 321/82 (Verity), &gg, 377/83 (Joliffe), OPSEU (Union Grievance, 676/81 (Teplitsky), and Isaac and MacIsaac, 742/83 (Kennedy). ,:. ;il,’ s - 13 - l a 0 Article 27.11 makes it clear that grievances which are not processed within the specified time limits “shall be deemed to have been withdrawn”. Article 27.13 provides that the time limits may be extended by mutual written agreement. Article 27.14 makes it clear that the Grievance Settlement Board is without jurisdiction “to alter, change, amend or enlarge any prov~ision of the Collective Agreement”. The Parties intent is specified in Article 27.1, namely, “to adjust as quickly as possible any complaints or differences between the Parties arising from the interpretation, application, administration or alleged contravention of this agreement”. Article 27.2.1 establishes a 20 day time limit for the filing of individual grievances by an employee who. believes he has a ~complaint or a difference, with the time for filing within 20 days of “first becom ,i aware of the complaint” . The Parties d ,i ffer on the precise time the 20 day period begins and the clock starts to run. The Employer maintains that the grievor ought to have been aware of her right to file a grievance following the testing in February or the events in November, 1985. Mr. Benedict argues that ignorance of the right to file a grievance is no excuse and that the individual grievance filed in March of 1986 was well beyond the mandatory time limits. The Union alleges that the grievor was unaware that the events surrounding her concerns could be the subject matter of a - 14 - grievance until she spoke with Union Representative Brian NcMullan in late February, 1986. Mr. Stoykewych contends that the grievor properly filed the grievance within the 20 day period. The language of the Collective Agreement appears to provide two quite separate and distinct procedures for the filing of individual grievances on the one hand, and the filing of union grievances on the other. In individual grievances, Article 27.2.1 states that the employee "who believes he has a complaint or a difference" shall raise it with his supervisor "within 20 days of - first becoming aware of the complaint or difference" (emphasis added). What is required on the part of the employee to comply with: the mandatory 20 day time limit, is knowledge or awareness that there has been a violation or a possible violation of the provisions of the Collective Agreement. Article 27.2.1 contemplates the knowledge on the part of the employee - a subjective concept. Vice-Chairman Samuels makes that point in OPSEU (P. Mitchell and Union Grievance) and Ministry of Government Services, 1614/85 and 1615/85 at p. 6: "Article 27.2.1 establishes a time limit which = does not begin to run until the employee first becomes aware of the complaint or difference. And the words 'complaint or difference' refer to 'complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this - 15 - agreement'. (Article 27.1). In other words, the time does not begin to run until the employee is aware that there is a complaint or difference under the collective agreement. Her complaint or difference in this sense is not being declared surplus, or being laid off, but her feeling that she has not been treated according to the collective agreement." On the other hand, in the filing of union grievances under either Article 27.8.1 or 2.7. 8.2, there is no subjective component. As Arbitrator Brandt observed i n OPSEU (Union Grievance) and Management Board of Cabinet, 1546/85 at p. 5 in referring to the filing of union grievances: "Knowledge or awareness of the violation is not the appropriate basis on which to beginning of the time period." assess the Article 27.8.1 provides for the f within 30 days "following the occurrence or ilinq of a union grievance origination of the circumstances giving arise to the grievance". Similarly, Article 27.8.2 contains the identical requirement in providing a 60 day time limit for filing a union grievance affecting multiple Ministries. ,' In the instant matter, the evidence is uncontradicted that the grievor first became aware of her right to file a grievance only when she spoke with Chief Steward McMullan on February 25, 1986. On the evidence adduced, the Board does have some concern with the grievor's testimony that she first learned of the events surrounding i - 16 - this matter in November 1985. The evidence of Mrs. Clark and Mrs. Shrader would indicate otherw ise. However, the date the grievor learned of the events or circumstances giving rise to her grievance (whether in February or November, 1985) is not the determining factor. The Board finds as a fact that prior to February 25, 1986 the grievor had neither the knowledge nor the belief that her concerns were amenable to resolution under the Collective Agreement. The Board cannot find that the preliminary objection has merit. Accordingly, we do find that the grievance was filed in a timely fashion. DATED at Brantford, Ontario, this 22nd day of February, 1988 1 ,~,kL : R. L. VERITY, Q.C. - VICE-CHAIRMAN J. BEST - MEMBER P. D. CAMP - MEMBER ADDENDUM Although this member agrees with the final conclusion that the grievance should proceed, the overriding reason should have been more related to the nature of the grievance, namely “Health and Safety” related to Ann exposure to a T.B. infectious Inmate. ’