HomeMy WebLinkAbout2009-1115.Rafol.13-03-15 DecisionCrown Employees
Grievance Settlement
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Commission de
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GSB#2009-1115
UNION#2009-0547-0002
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Rafol) Union
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The Crown in Right of Ontario
(Ministry of Children and Youth Services) Employer
BEFORE Nimal Dissanayake Vice-Chair
FOR THE UNION Eric del Junco
Counsel
FOR THE EMPLOYER Felix Lau
Ministry of Government Services
Labour Practice Group
Counsel
HEARING March 11, 2013.
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Decision
[1] When a grievance dated April 2, 2009 filed by the grievor Ms. Virginia Rafol came
before the Board for arbitration, a dispute arose between the parties about the scope
of the grievance. This decision determines that dispute.
[2] The facts material to the dispute were stipulated on agreement. On March 6, 2009, the
grievor wrote to her employer “to apply for Special Leave with Pay provided under
article 25.1 of the OPSEU Collective Agreement for a period of six months to begin
June or July of this year”. The reason for the leave application was stated as, “I need to
go home to the Philippines to look after my mother who is suffering from an advanced
stage of Alzheimer’s disease”. The grievor’s letter went on to describe in detail the
extent of her mother’s illness, why paid caregivers have not been able to care for her
properly, and why it was necessary for her to return and personally care for her mother.
The grievor also described the limited financial resources available to herself and other
family members, and explained why she needs the period of leave requested to be with
pay. By letter dated March 18, 2009, her request for leave was denied by the Regional
Director.
[3] This resulted in the filing of the instant grievance dated April 2, 2009. The statement of
grievance reads: “Art. 25.1 – I want to grieve the denial”. The settlement desired is set
out as “To be allowed to go on this leave as per art. 25.1”.
[4] Article 25.1 reads:
25.1 Leave of absence with pay may be granted for special or compassionate
purpose to an employee for a period of:
(a) not more than six (6) months with the approval of his or her Deputy
Minister;
and
(b) over six (6) months upon the certificate of the Public Service
Commission.
Following the filing of the grievance, the grievor requested a leave of absence without
pay from September 15, 2009 to February 19, 2010. This unpaid leave was approved,
and the grievor did go to the Philippines for that period of time.
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[5] As a result of the grievor’s absence from Canada and illness upon her return, scheduled
arbitration dates were adjourned several times. However, the parties did participate in a
mediation session without success. The grievance was ultimately set down for hearing
before the Board on March 11, 2013. Following the retention of the present union
counsel, he wrote a letter dated February 28, 2013 to employer counsel. It included the
following:
The union will argue that the employer’s denial of the grievor’s request for
compassionate leave in 2009 which is the subject of this grievance amounted to
constructive discrimination on the grounds of disability and/or family status,
namely the disability of her mother, contrary to s. 2 and s. 25 of the Collective
Agreement and s. 5 of the Code. The union will also argue that this denial
constituted discrimination on the grounds of place of origin and ethnic origin
insofar as within the grievor’s culture, it is a norm that children care for their aged
and disabled parents.
The union reserves the right to rely on other provisions of the CA and Code which
might be relevant. The union will argue, inter alia, that
1. The employer had a duty to accommodate the grievor’s needs arising from her
mother’s disability to the point of undue hardship;
2. The employer failed in this duty by denying her request for paid leave to care
for her disabled mother;
3. The onus is on the employer to prove that granting tis request would have
caused it to suffer undue hardship;
4. In any event, the denial of this request was arbitrary and unreasonable and
contrary to s. 25.1 of the Collective Agreement.
At the hearing, union counsel asserted that the union reserves the right to seek general
damages for violations of the Human Rights Code.
[6] The employer accepts that the union’s allegation of violation of article 25.1 is properly
before the Board. However, it contends that the allegation of discrimination on the
various prohibited grounds is an improper attempt by the union to expand the scope of
the grievance. Counsel submitted that the agreed facts lead to the unavoidable
conclusion that discrimination on prohibited grounds was not a part of the grievance.
Nor is discrimination inherent in the grievance as filed. He pointed out that the written
grievance is specific that the allegation is about the denial of leave under article 25.1.
The remedy sought is also consistent in that the grievor only requested that she be
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granted the leave under article 25.1. Discrimination was never raised or discussed
during the grievance procedure or at mediation, despite the fact that the grievor had
union representation. Employer counsel submits that on the eve of arbitration the union
is attempting to turn the grievance, which hitherto had been treated by both parties as
one about the exercise of the employer’s discretion in approving leaves under article
25.1, into one about human rights violations. He points out that the substance of the
argument the union proposes to make, as set out in union counsel’s letter, is about
human rights violations. Article 25.1 is mentioned at point four only as an afterthought.
In other words, the union is attempting to present a completely different and new
grievance.
[7] Counsel argued that the nature of the grievance filed is completely different from the one
the union now seeks to pursue. The issues and the evidence in an article 25.1 grievance
and a discrimination grievance are very different. In the former, the focus would be on
the employer’s exercise of its discretion under article 25.1. In the latter, completely
different considerations would come into play. Evidence on issues such as the extent of
the illness of the grievor’s mother, the cultural practices about caring for elders in the
Philippines and the availability of alternate arrangements to care for her would become
relevant. Counsel also argued that in an article 25.1 grievance the legal onus would be
on the union because it is claiming a financial entitlement. In a discrimination grievance
there may be a shifting onus. Finally, counsel pointed out that the remedy sought in the
article 25.1 grievance was simply that the leave be approved. In contrast, now the union
is reserving the right to claim human rights damages. Citing authorities from this board
as well as from arbitrators, counsel submitted that the Board should conclude that
discrimination on prohibited grounds was, and is not, a part of the grievance before it,
explicitly or inherently, and that its inclusion would constitute an improper expansion of
the grievance before the Board.
[8] Union counsel acknowledged that discrimination was first raised as an issue on February
28, 2013, mere days before the scheduled arbitration. He pointed out that while the
grievor did have the local union representation during the grievance procedure, it is
unlikely that a local union representative would have the required knowledge and
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training to identify and articulate violations of human rights. He argued that in any
event the true nature of the grievance must be gleaned from the underlying facts. The
facts, he submitted, are detailed by the grievor in her request for leave. In it, the grievor
puts the employer on notice that the request is based on her relationship with her mother.
That should have alerted the employer about the need to deal with the request for leave
with caution because it may potentially involve family status issues. The employer
should have therefore given due consideration to whether the request could be approved
short of undue hardship. The test, he submitted, must be objective. That is, would a
prudent employer on a reasonable reading of the grievor’s request for leave recognize
that it involves human rights issues. The answer, he submits, must be in the affirmative.
[9] Union counsel also argued that in determining the scope of the grievance the Board
should give weight to the fact that while the employer made a general assertion that the
raising of human rights issues for the first time in February 2013 in relation to a
grievance filed in April 2009 is prejudicial to it, there was no specific prejudice claimed
such as unavailability of witnesses or documentary evidence needed to defend against
the grievance. In the absence of prejudice, the Board should favour hearing the real
substance of the grievance. Counsel argued that the right the grievor is seeking to pursue
flows from the Human Rights Code, which has quasi-constitutional status. The Board
should not bar the pursuit of such an important right due to lack of specificity.
[10] The appropriate approach in these types of disputes is well established. In Re Greater
Sudbury Hydro Plus Ins., (2003), 121 L.A.C. (4th) 193 (Dissanayake) at p. 198, I stated
as follows:
Both parties referred me to the oft-quoted judgment of the Ontario Court of
Appeal in Blouin Drywall Contractors Ltd. v. United Brotherhood of Carpenters
and Joiners of America, Local 2486 (1975), 57 D.L.R. (3d) 199. At. P. 204 Mr.
Justice Brooke wrote:
No doubt it is the practice that grievances be submitted in writing and that
the dispute be clearly stated, but these cases should not be won or lost on
the technicality of form, rather on the merits and as provided in the
contract and so the dispute may be finally and fairly resolved with
simplicity and dispatch.
He went on to state:
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Certainly, the board is bound by the grievance before it but the grievance
should be liberally construed so that the real complaint is dealt with and
the appropriate remedy provided to give effect to the agreement
provisions.
I find two countervailing principles in the foregoing statement by the Court of
Appeal. The first is that, where on a liberal reading of the grievance an issue,
although not articulated well, is inherent within it, an arbitrator ought to take
jurisdiction over that issue, despite any flaws in form or articulation. However,
there is also a countervailing principle to the effect that an arbitrator ought not, in
the guise of “liberal reading”, permit a party to raise at arbitration an issue which
was not in any manner, even inherently, joined in the grievance filed. To do that
would be to defeat the very purpose of the grievance and arbitration procedure.
[11] In Re Electrohome Ltd., (1984), 16 L.A.C. (3d) 78 (Raynor) at p. 82 the principle was
stated as follows:
If the issue raised at the arbitration hearing is in fact part of the original
grievance, a board of arbitration should not deny itself jurisdiction based
on a technical objection to the scope of the original grievance. To do so
would deny the value of flexibility and would be to compel the parties to
draft their grievances with the nicety of pleadings. On the other hand, if
the issue raised by one of the parties is not inherent in the original
grievance, for the board to permit the party to raise that issue as part of
the original grievance would be to deny the parties the benefit of the
grievance procedure in an attempt to resolve the issue between
themselves. In fact, it would be to permit one party to substitute a new
grievance for the original grievance.
[12] I agree with union counsel that in deciding whether an issue was part of or inherent in
the grievance, the test must be objective. The issue is not to be determined on the basis
of the employer’s subjective interpretation. As stated in Re Greater Sudbury Hydro Plus
Inc. (supra) at p. 199, for an arbitrator to include an issue on “a liberal reading”, he/she
“must be able to conclude that the employer reasonably should have understood upon
reading the grievance that the issue in question was part of the grievance. (emphasis
added).
[13] While arbitrators and this Board have endorsed and followed the approach espoused by
the Ontario Court of Appeal in Re Blouin Drywall, (supra) that cases should be decided
on the merits rather than on technicality or form, Boards have balanced the need for
flexibility with the court’s caution that ‘the Board is bound by the grievance before it’.
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In doing so, this Board has particularly emphasized a policy consideration. Namely, the
desirability and importance of the parties discussing and attempting to resolve issues in
dispute during the grievance procedure before coming before it for arbitration. Thus in
Re Warden, 1152/87 (Dissanayake) at p.4, the Board wrote:
…the wording of the grievance is not determinative. If the employer was made
aware that the concern was with regard to the grievor’s health and safety the
employer cannot be heard to complain about the wording of the grievance.
However, a health and safety concern was not raised by the grievor until the
arbitration hearing. The board is concerned that the grievor failed to raise what he
now claims to be the central issue of his complaint at any time during the
grievance procedure. The grievance procedure set out in the collective agreement
is designed to encourage discussion relating to the real issues in dispute in the
hope that the parties may be able to resolve them. The Board does not encourage
parties to raise issues at arbitration, when such issues have not been raised in the
grievance procedure.
[14] Similarly in Re Houghton, 0771/88 (Knopf) at pp. 4-5 the Board wrote:
It is the conclusion of the Board that the essence or the substance of the grievance
that the Union wishes to pursue is a complaint dealing with health and safety …
However, the wording of the grievance and the processing of the grievance at
Stages 1 and 2 of the grievance process did not reveal this concern to management
… It is the opinion of this panel that Steps 1 and 2 of the grievance process are
extremely important for the proper resolution of complaints. This grievance, as
processed, could not give effect to that mechanism of dispute resolution because
the substance of the complaint was not revealed to the Employer at the crucial
early stages… Because it was not raised initially, and because we have no
jurisdiction to amend or alter the grievance, we must deal with the grievance as it
was framed.
[15] In the present case, the written grievance is clear that the grievor’s allegation is about the
denial of leave under article 25.1. The only remedy sought is the granting of the leave
under that article. However, as the authorities have repeatedly stated, the written form
of the grievance is not determinative of its scope. If the union had communicated to the
employer in some manner that the grievance includes the allegations of discrimination
on prohibited grounds, that would have enabled the parties to address that issue during
the grievance procedure. Then an argument that “a liberal reading” and “a flexible
approach” should lead the Board to allow the human rights issues to be pursued would
have merit. However, in the instant case, the employer could not have reasonably
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understood from any of the information before it, that the union was raising any human
rights claim. At the time of the grievor’s request for leave, there was no grievance filed
or contemplated. In any event, from the fact that the grievor gave the need to care for
her mother as the reason for the request for leave, the employer could not be reasonably
expected to understand that any grievance about the denial of the leave, however framed,
includes allegations of discrimination on a number of prohibited grounds. The grievance
itself and the discussions during the grievance procedure and during mediation, was only
about the employer’s exercise of its discretion under article 25.1. The allegations of
discrimination on prohibited grounds are discreet issues, which could not be said to be
encompassed in an allegation of violation of article 25.1.
[16] The union’s argument in essence is that the human rights claims should be included as
part of the grievance because they are based on the same facts that are material to the
article 25.1 dispute. Commonality of facts alone, however, is not a basis for determining
the scope of a grievance. The Board has rejected such an approach. In Re Marinelli
1978/89 (Kirkwood), the grievance alleged that the employer was “violating the
collective agreement by its negative treatment of me”. The settlement desired was, “That
I be treated in the same manner as any other employee and be allowed to perform the
full range of duties of my position”. Three working days prior to the scheduled
arbitration, the union informed the employer that it would be asserting that the employer
conduct constituted a disciplinary demotion without just cause. At arbitration the
employer took the position that the union was attempting to alter the grievance from one
alleging discrimination in assignment of duties to one of unjust demotion.
[17] One of the arguments advanced by the union counsel was as follows (pp. 3-4)
He argued however, that the ground of discipline was included in the
original grievance and was not an enlargement of the grievance. He
submitted that that the circumstances relied on are the same, and the
remedy, to get back the grievor’s duties is substantially the same.
The union counsel argued that whether discipline can be raised is a
procedural and not a substantive matter. He submitted that it is merely a
difference in the characterization of the facts.
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At p. 6, the Board rejected that argument, stating “The principle espoused in the Blouin
decision has not been interpreted and applied so that any issue that may involve the same
facts is to be heard by the board of arbitration formed to resolve the original issue.”
[18] In the present case, the human rights issues belatedly raised by the union are very
discreet and different than the issue originally grieved and discussed between the parties.
The remedy in the original grievance was the approval of a paid leave of absence.
Pursuant to its human rights allegations, the remedy may involve human rights damages.
The human rights issues were not subject to any discussion between the parties. They
were raised for the first time just prior to the scheduled arbitration.
[19] In the circumstances, the Board concludes that the allegation of discrimination on
prohibited grounds did not form part of and was not inherent in the grievance before the
Board. The employer could not have reasonably expected that the grievance it was
dealing with during the grievance procedure and even at mediation, included allegations
of discrimination on the basis of prohibited grounds.
[20] Therefore, the employer’s objection is upheld. The union is not permitted to pursue
those allegations as part of the instant grievance. The Board remains seized with
jurisdiction to hear and determine the grievance on that basis.
Dated at Toronto this 15th day of March 2013
Nimal Dissanayake, Vice-Chair