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HomeMy WebLinkAbout1987-2511.Myszko.88-09-12ONTMIO EMPLOV.tSOEUI COURONNE CROWNEMPLOYEES DEL’ONTARIO GRIEVANCE q q BOARD CQMMISSION DE SElTLEMENT REGLEMENT DES GRIEFS 2511187 IN THE MATTER OF AN ARBIT~RATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OPSEU (Walter Myszko) and The Crown in Right of Ontario (Ministry of Health) R.L. Verity, Q.C. Vice Chairman I. Freedman Member P. camp Member For the Grievor: R. Ellerton Grievance Officer Ontario Public Service Employees Union For the Employer: K. Raymond Legal Counsel Legal Services Branch Ministry of HeaLth Grievor Employer Hearing: June 23, 1988 July 18, 1988 July 20, 1988 DECISION Walter Myszko is employed as a Registered Nurse 2 at the St. Thomas Psychiatric Hospital. On January 27, 1988, he filed a grievance under Article 18.1 of the Collective Agreement which alleged "that management did not make reasonable provisions for my health and safety on Dec. 29, 1987 causing damage to my 1986 vehicle". The settlement request included payment for the cost of repairs to the vehicle. At the outset of the hearing, Counsel for the Employer raised a novel preliminary objection. The Employer contends that the grievance is inarbitrable because the.Union breached the mandatory time limits of the grievance procedure as contained in Article 27 of the Collective Agreement. Briefly stated, the Employer maintains that the Union applied to the Registrar of the Grievance Settlement Board for a hearing in the absence of a.Stage 2 meeting with the Deputy Minister or his designee as required by Article 27.3.3. The Parties submitted the following Agreed Statement of Facts on the preliminary objection: 1. On Tuesday, December 29th, 1987, Mr. Myszko had an accident involving his car on hospital property. -4 -3- 2. Mr. Myszko has filed a grievance claiming, among mother things, that Management pay the cost of damages to his vehicle. 3. Mr. Myszko's grievance'was dated January 27th, 1988 but was not received by his immediate supervisor, Mike Fryer until February lst, 1988. 4. Mr. Myszko's immediate supervisor responded in writing on February 8th, 1988. 5. Mr. Myszko's Step 2 grievance form with accompanying letter of correspondence, dated February 9th, 1988 was received on February 15th, 1988 ins the office of the Deputy Minister of the Ministry of Health. 6. Mr. Myszko's grievance was forwarded to Ms. T. A. Inniss, Registrar of the Grievance Settlement Board on February 29, 1988 by Mike Pratt, Co-ordinator of the Grievance Department of the Ontario Public Service Employees Union. In particular, the Employer relies upon Article 27.3.3 which reads as follows: / . 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. However, other Articles cited were as follows: STAGE TWO 27.3.2 If the grievance is not resolved under Stage One, the employee may submit the grievance to the Deputy Minister of 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 -4- specified time limits 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 Stage One. 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 decision 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. GENERAL 27.13 27.14 27.15 27.16 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. Evidence was adduced on the preliminary matter. Donald Coutts, Regional Personnel Administrator testified for the Employer. Local Chief Steward William Richardson gave evidence on behalf of the Union. I_ -5- The evidence established that in January, 1988, the London OPSEU Regional Office changed its practice for processing grievances to the second stage by submitting the grievance directly to the Deputy Minister, as required by Article 27.3.2. Previously, a grievance was advanced to the second stage by the Chief Steward or the local President to the Hospital's Administrator. Apparently, the reason for this procedural change' was to avoid unnecessary delay in the scheduling of Stage Two meetings. The Myszko grievance was denied at Stage One by Ward Supervisor Mike Fryer on February 8, 1988. OPSEU Regional Staff Representative Victor Cooper advanced the Myszko grievance to Stage Two in a letter to the Deputy Minister dated February 9, 1988. The evidence established that the Deputy Minister's office received the request for a Stage Two meeting on February 15. H'owever, there was ,no acknowledgement of receipt of the Stage 2 request by the Deputy Minister's office to the Union. Mr. Coutts testified that he first became aware of the request for a Stage Two meeting via the Ministry's Human Resources Head office on February 21. Apparently, the Ministry correspondence arrived in Mr. Coutts office on February 19. Mr. Coutts was then on sick leave and did not return to work until February 29. Mr. Coutts testified that he did not contact OPSEU Regional Representative Victor Cooper but did contact Local Steward William Richardson on March 2 or 3. In any event, a Stage Two meeting was mutually agreed upon for March 21. .> -6- Further, Mr. Coutts testified that on March 8 he received a copy of Mike Pratt's letter of February 29 to the Grievance Settlement Board requesting a hearing. On March 14, Mr. Couttssent a. registered letter to Mr. Pratt objecting to the Union's request for an arbitration hearing in the absence of a Stage Two meeting. In particular, the letter stated that if the matter proceeded further that management would raise "preliminary objections regarding the validity of Mr. Myssko's grievance", based on the Union's failure to follow the mandatory time limits of the Collective Agreement. Mr. Ellerton maintains that the Union did not receive Mr. Coutt's letter to Mr. Pratt. However, no evidence was adduced in support of that contention. A Stage Two meeting was held on March 21, 1988 before administrator R. E. Cunningham in his capacity as .Deputy Minister's designee. The Parties are agreed that the Employer raised its procedural irregularity concern at the Stage Two meeting and again at the pre-hearing session. Local Union Steward Richardson testified that although Mr. Coutts did raise the timeliness issue at the Stage Two meeting, there was no discussion that the meeting would proceed "without prejudice" to the Employer's objection. Further, Mr. Richardson testified that the Administrator's Stage Two decision in denying the grievance contained no reference to the timeliness issue. -7- The Employer contends that the Union's failure to observe mandatory time limits contained in the Collective Agreement and the Employer's repeated objections renders the matter inarbitrable. In particular, Ms. Raymond maintains that the Stage Two meeting held on March 21 proceeded on a "without prejudice" basis. The Union argues that there was no procedural irregularity. Alternatively, if there was a breach of the time limits, there was no prejudice suffered by the Employer and that any such irregularity was rectified by the holding of a Stage Two meeting. Mr. Ellerton maintained that the procedural irregularity was waived by the Employer's decision to proceed with the merits at the Stage Two meeting. The Board is not persuaded that the Employer's preliminary objection has merit. The Collective Agreement does provide for fixed time limits within which the grievance is to be filed and processed through the various stages of the grievance procedure. On the evidence adduced, the Board finds that there has been a procedural irregularity in the request for a hearing prior to the expiration of the time limits contained in Article 27.3.3. As the Employer suggests, the Union was premature in advancing the grievance prior to the time limits specified in Article 27.3.3. -8- However this is not a case where either party unilaterally seeks to extend the time limits to accommodate late filing. Rather it is a case where the Union has prematurely applied for an arbitration hearing in the absence of the expiration of the time limits for a Stage Two meeting. This form of procedural irregularity is not fatal to a hearing on the merits. In these particular circumstances, it cannot be said that there has been violation of the provisions of Article 27.13 whereby the grievance is deemed to have been withdrawn. Where there has been a fatal procedural irregularity, it is possible that an employer will make an objection and then proceed to discuss the merits of the grievance without prejudice to its right to enforce its objection. However, this is not such a case. The thrust of the grievance procedure as contained in Article 27.1 is to adjust complaints or differences in an expeditious fashion. On the particular facts before us, there has been no detriment, injury or substantial prejudice to the Employer by the Union's premature action in advancing the grievance procedure. Indeed, a Stage Two meeting was held in which the grievance was denied. Admittedly, the parties have developed a comprehensive grievance procedure with certain fixed time limits for their mutual benefit. However, failure to follow the grievance procedure by taking some form of premature action creates only administrative difficulties and addi parties tional cost. Any form of premature action by either of the in advancing the grievance procedure should be avoided, I ^ -9- wherever possible. However such action does not render a grievance inarbitrable. For the above reasons, the Employer's preliminary objection is dismissed. We turn now to consider the merits. Many of the facts are in dispute. The St. Thomas Psychiatric Hospital is located on 440 acres of land and employs a staff of approximately 700. The grievor has been employed at the facility for some 6 years as a Registered Nurse. Following completion of a shift shortly before 11:30 p.m. on December 29, the grievor proceeded to the adjacent rear parking lot to get into his car. The grievor owned a 1986 Chevrolet Cavalier, a front wheel drive vehicle. On the way to the parking lot, he noted that the roads were snow covered and icy and that there was no evidence of any recent application of sand and salt. The grievor then drove his car on Hospital property along the north road (a 22 foot paved roadway) towards Highway #4. Apparently some 200 to 300 cars drive along the north road on a daily basis. The grievor testified that due to icy road conditions, he lost control of his vehicle as it entered an "S" curve on the north road. As a result the right front bumper and fender of his car struck a yellow steel marker one foot from the south side of the roadway. The steel road markers are installed in winter months to assist farm staff in plowing the roadways. Some 1.50 steel markers line the roadways. - 10 - According to the grievor's testimony, the front wheels of his vehicle encountered an ice patch which caused the rear section to spin around approximately 180 degrees. The grievor estimates that his speed at the time was between 15 to 20 kilometres per hour. Registered Nurse Connie Wills testified that she was following the grievor's vehicle some three or four car lengths behi and clocked her speed, at the beginning of the grievor's spin, at 1 nd 8 kilometres per hour. Psychiatric Nursing Assistant Mike McCarthy ~testified that he had difficulty with his four wheel vehicle on the "S" curve some five minutes prior to the grievor's accident. According to his evidence, the "S" curve was "extremely icy" and as a result his vehicle "fishtailed". However, he was able to bring his vehicle under control. Mr. McCarthy estimated his speed at 20 - 25 kilometres per hour. Fortunately, the grievor was not injured, although there was substantial damage to his motor vehicle. The grievor chose not to report the accident to his insurance company and as a result the car has not been repaired. Three repair estimates were submitted in the amount of $732.68, $853.70 and $959.09 respectively. The grievor did not report the accident to the police. He did, however, notify the Employer the following day. In a letter to - 11 - the Hospital the grievor complained that the roadway had not been salted and that the yellow steel posts were placed too close to the road. Chief Steward William Richardson testified that although the roadways were well ploughed it was the Union's position that the routes were not adequately sanded and salted in the winter time. He testified that there had been at least two previous accidents brought to the attention of management on the "S" curve. The Union's sanding request had been brought to the attention of the Health and Safety Committee as well as the alleged dangerous conditions of the 'S" curve. The Hospital has a policy on snow removal and ice control dated January 8, 1987. The policy is contained in the Policy and Procedure Manual which is available to all employees on each ward. The policy is as follows: SUBJECT: SNOW REMOVAL PURPOSE: To provide as quickly and thoroughly as possible snow removal and ice control on roadways, sidewalks, and parking lots. POLICY STATEMENT: Snow shall be cleared from side- walks, roadways and parking lots as quickly and thoroughly as possible. Sand, salt, and ice melting pellets to be applied as needed. Fire exit doors to be cleared after other areas are serviced. APPLICATION: All staff. - 12- PROCEDURE: 1. Areas requiring snow and/or ice removal to report to Switchboard between 0700 hrs. and 2330 hrs; and Nursing Office between 2300 hrs. and 0700 hrs. During working hours (0800 hrs. to 1700 hrs. - Monday to Friday), Switchboard will notify the Farm Department. After hours, the Switchboard and/or Nursing Office will notify the Commission- aire who will assess the situation and notify the Farm Supervisor if action is required. Log books will be maintained at Switchboard and Nursing Office. 2. Clearing Snow: Snow removal vehicles are identi- fied by a blue flashing light. Please use caution when approach- ing. Order of snow removal and ice con- trol is carried out as follows: admitting area, hospital vehicle parking lot, receiving dock, diet- ary receiving area, main roads, parking lots, and Adolescent House. Farm staff do notstart vehicles, assist in vehicle repairs loan equipment OK tow vehicles, except a vehicle which may have to be moved as it is creating a hazardous situation. CONTROLS : Farm Manager or delegate will inspect the sidewalks, KOadwayS and parking lots to ensure that the necessary snow removal and/or ice control has been carried out. NOTE: To report unsafe conditions not being properly attended to, sent a written report to the Farm Manager with copies to the Assistant Admini- strator and Safety Officer. I December 8, 1986, Commissionaires are required to notify the Farm Crew during off hours (from 5:OO p.m. to 8:00 a.m.) concerning cond~itions needing attention. The memorandum reads, in part, as follows: 1 inch of snow requires walks to be shovelled. 2 inches of snow requires walks to be shovelled and roads cleared. 3 inches and more of snow requires walks to be shovelled, roads and parking lots cleared. The staff, of course, would have no access to this internal memorandum. Farm Manager John Quick testified that the KOaaS had been plowed on December 28 and again during the early morning hours of December 29. According to his evidence, the snow plowing on December 29 was completed by 9:30 a.m. Subsequently, commencing at IO:00 a.m. and continuing over the next two hours, all roadways were sanded and salted. Mr. Quick testified that no snow fell on December 29 prior to the completion of the day shift assignment at 5:00 p.m. Chris Hatch worked on the Farm Crew from 8:00 a.m. to 5:OO p.m. on December 29. He testified that he rode the Sander and visually inspected the application of sand and salt over the two hour period on the morning of December 29. The mixture applied was.one bucket of sand to two buckets of salt. ACCOKding to his evidence, the ‘C. -13- F In an internal memorandum from Farm Manager John Quick dated I T. : - 14 - "s" curve was sanded and salted at 1O:OO a.m. and that there were no apparent problems at 2:30 p.m. when he visually inspected the curve. In cross-examination MK. Hatch acknowledged that it was "possible" that parts of the "S" curve were not salted. HOWeVeK, he estimated that any missed portions would be 1 to l-1/2 feet at the most. Noel Lidster was the Commissionaire on duty on December 29 between 4:00 p.m. and midnight. He acknowledged that it did snow during his shift in the evening. Mr. Lidster travelled the roadways by car patrol between 5:15 and 6:00 p.m. and travelled the "S" curve in particular at 11:lO p.m. and observed no problems. He disputed the union's evidence that two inches had fallen;~ however, he was unable to estimate the actual accumulation of snow. He testified that had there been one inch of snow, he would have phoned the FaKm Crew to sand the roadways. The Commissionaire's KeCOKdS contained no mention of poor road conditions on his shift. This grievance involves the interpretation of Art icle 18.1 of the Collective Agreement. That Article reads: 1 The employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the employer anc tne union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees. 9. - 15- 2 The Union maintains that the employer breached its obligation under 18.1 by failing to keep the roadway free of ice and snow on the evening of December 29, 1987. Mr. ElleKtOn contended that the accident OCCUKKed through no fault of the grievor and that the damage sustained was directly attributable to the Employer's breach of duty. The Employer argued that there was no breach of duty under Article 18.1 and that reasonable provisions for the grievor's health and safety had been taken by the Employer. Previous panels of the Grievance Settlement Board have considered the proper interpretation of 18.1 in claims of this nature. The Article imposes an obligation upon the Employer "to make reasonable provisions for the safety and health of its employees". In OPSEU (M. Gonneau) and Ministry of the Attorney General 227/81, Vice-Chairman Teplitsky held that the Employer's obligation included the requirement to take reasonable steps to remove snow and ice from access routes and parking lots on Ministry property. In OPSEU (David Kelly) and Ministry of Correctional Services 371,84, Vice-Chairman Saltman followed the Teplitsky rationale and made three findings on alleged jurisdictional issues: (1) that removal of ice and snow from access routes over which the Employer has control is covered under Article 18.1 of the Collective Agreement. - 16- .(2) that the Employer's obligation under .AKtiCle 18.1 is not limited to an employee's hours of work under the collective agreement but extends to those times when the employee is legitimately on the Employer's property in connection with his employment obligation; and (3) that Article 18.1 covers property damage as well as personal injury. At pp. 11 and 12 of the Decision, Vice-Chairman Saltman makes the following relevant comments: Under Article 18.1, the Employer is required to make reasonable provision for the'health and safety of its employees. This does not mean that the Employer must guarantee the health and safety of its employees although it does mean that the Employer must take reasonable precautions in this regard. Whether OK not reasonable precautions were taken is a question of fact which depends on the circumstances of each case. In the instant grievance, there was a system in place for reporting inclement winter weather conditions and for taking corrective action for the removal of snow and the a?Plication of salt and sand. Under Article 18.1, the Employer is not an insurer against employee accidents. Liability for 'damages will be incurred in circumstances where the Employer has failed to take reasonable precautions to protect the safety and health of its employees. - 17 - The evidence did establish that the access roadways were ploughed, sanded and salted on the morning of December 29. The Board accepts the evidence of Farm Manager John Quick that no snow fell pKiOK t0 5:00 p.m. on the day in question. HOweVeK on the evidence adduced, it is difficult to determine, with any degree of accuracy, the weather conditions on the evening of December 29. In that regard, there was insufficient evidence of any probative value. In particular, there was no evidence by way of meteorological report from a weather office. The onus is on the Union to establish its case and to obtain this type of documentation. Indeed, the evidence of snow accumulation at the time of the accident was contradictory. However, the parties did agree that some snow had fallen. The Union's position was that the accident was attributable to ice on the roadways and'not to snow. The evidence does satisfy us that there were isolated ice patches on the "S" curve. However, it is unlikely that the entire roadway was in a hazardous condition. In these circumstances, the Board finds that the Employer did take KeaSOIIabh provisions for the employees safety and health as contemplated in Article 18.1. In our opinion, it would be unreasonable to expect Commissionaires to call in the Farm Crew to apply sand and salt everytime ice patches appear. Simply stated, the Employer cannot be expected to guarantee an ice free roadway. - 18 - On the grievor's own testimony, he knew that there were ice patches on the road when he went to the parking lot to get into his vehicle. Subsequently, the grievor failed to negotiate the "S" curve successfully. However, employee Connie Wills who followed the grievor along the access road was able to keep her car under control. The Board finds that the location of the steel marker one foot off the roadway was not a hazard to the prudent operation of a motor vehicle in winter conditions. In OUK opinion, the spinning action of the grievor's vehicle on encountering the ice patch and the amount of damage sustained appears inconsistent'with his estimate of speed and consistent with a significantly higher rate of speed. In the result, the Board is satisfied that on the evidence before us there has been no violation of the provisions of Article 18.1 as alleged. Accordingly, this grievance is dismissed. DATED at Brantford, Ontario, this 12th day of September,l988. R. L. VERITY, I. FREEDMAN - MEMBER P. CAMP -MEMBER