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HomeMy WebLinkAbout2014-1158.Brown-Bryce et al.16-05-12 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2014-1158, 2014-1159, 2014-1160, 2014-1162, 2014-1163, 2014-1164 UNION#2014-5112-0043, 2014-5112-0044, 2014-5112-0045, 2014-5112-0047, 2014-5112-0048, 2014-5112-0049 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Brown-Bryce et al) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Nimal Dissanayake Vice-Chair FOR THE UNION John Brewin Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Stewart McMahon Treasury Board Secretariat Legal Services Branch Counsel HEARING April 28, 2016 - 2 - Decision [1] The Board is seized with individual grievances filed by six individuals, Nadia Brown-Bryce, Jacqueline Samuels, Charlene Tucker, Kamesha Peck, Charlett Thompson and Anusiya Thanachayan, who are employed as correctional officers at the Toronto South Detention Centre. The parties agreed that the grievances should be heard together. [2] The Board dealt with certain disclosure issues, following which submissions were received on a motion by the employer to strike certain aspects of particulars provided by the union, on the grounds that they constitute an undue expansion of the grievances filed by the grievors. This interim decision deals with that motion. [3] Initially employer counsel objected to many aspects of the union’s particulars. Union counsel submitted, citing authorities that, particularly considering the agreement between the parties to bifurcate liability and remedial issues, the appropriateness of the remedies sought could not have any bearing on the scope of the grievances themselves, and that those are issues the employer should raise at the remedial phase if liability is found. Employer counsel conceded that point, and consequently withdrew his objection to some of the particulars. The Board will address only those aspects of the particulars which continue to be in dispute. [4] The six grievances before the Board are individual grievances. While they allege violations of article 2, 3 and 9 of the collective agreement, the union advised that it would pursue only the allegations based on article 9. Therefore, the grievances are limited to alleged violations of the grievors’ “health and safety” rights under that provision. [5] For purposes of this decision I shall refer to each of the six grievances by letter. Each of the grievances refers to article 9, and to “any/all applicable Acts, policies, standard practices etc.” The pertinent information in the grievance forms is as follows: - 3 - A. Grievance Details: The employer violated the above articles on March 11, 2014. Myself and 2 officers were locked in a sub-control room for 55 minutes. I contacted management several times. Management was unable to locate keys. Computer system failed. I am 4.3 months pregnant I was traumatized by the situation. Settlement Desired: Full redress. B. Grievance Details: Employer violated sections of agreement. I was trapped in an enclosed space (sub-control) on March 11, 2014 for a period of 55 minutes. I had to resort to pulling my pants down, with a male in the area, to urinate in a garbage disposal. Management was contacted, but unable to locate keys. This was dehumanizing experience. I suffered great stress, lack of sleep and worrying about who saw me. Settlement Desired: full redress. C. Grievance Details: I was locked up in 2B C/D sub-control for an hour. There was no key present to leave area and management couldn’t find one. During this we were panicking and I was bothered and felt terrible that I had to watch my co-worker pee in a bin. This was a very traumatic experience. Settlement Desired: full redress. D. Grievance Details: On March 11, 2014, I was secured in my assigned area B2B at the Toronto South Detention Centre in the correctional officers’ office due to a computer failure. Present in the office were other staff and a sergeant. As time passed my anxiety increased as I realized there was no secondary exit, ventilation into the area, and no well thought out plan for such a situation. I was offered no explanation by management, thus causing me to question how much care I have from my employer. Settlement Desired: full redress. E. Grievance Details: On 11th March 2014, I was stuck in a confined officers’ station on unit B2D with no circulation with 5 people for approximately 45-55 minutes. During this time I suffered from stress, anxiety, physical illness, shaking hands, sweating, need to urinate etc. No communication with management received. Settlement Desired: full redress. F. Grievance Details: On March 11, 2014 system malfunction on unit B2B caused undue mental anguish. Settlement Desired: full redress. [6] It is common ground that the grievances followed an incident on March 11, 2014. All grievors are female correctional officers. At some point on that day, the - 4 - computer system that controlled the locking mechanism of the doors at the detention centre malfunctioned. As result, the computer operated doors to a sub- control module and a correctional officer station could not be unlocked by computer. The doors had to be opened manually with a key. However, the key could not be readily located. As a result, grievors A, B and C, along with a male employee of a contractor, were trapped in the sub-control module for approximately 55 minutes before the key was finally located. It was during this period that grievor B had to urinate in a garbage bin. [7] Grievors D, E and F were in an officer station along with another correctional officer (who withdrew her grievance) and an operational manager when the computer malfunction occurred. They were also unable to exit the room for some 55 minutes before the door was manually opened with a key. For a period of 55 minutes those trapped within the two rooms could not exit. Nor could anyone from outside enter the rooms. [8] The union’s particulars that remain opposed as constituting an undue expansion of the grievances are as follows: 33. Since the jail opened, OPSEU members on the Health and Safety Committee have repeatedly informed management of the numerous health and safety issues that arise each time there is a computer malfunction. The concerns include the risk that jail staff would be trapped in enclosed quarters with inmates with no ability for backup, that inmates will be trapped in enclosed quarters without the possibility of staff intervention during an assault or rape, or that a fire will break out without the ability for staff and inmates to escape. 37. In Addition to the individualized impact of the incident on each of the grievors as described below, inmates at the jail became aware of the incident by way of the media attention and taunted COs with the details of the incident, which exacerbated workplace tensions. 38. Forcible confinement is a persistent issue in Corrections. The threat and reality is regularly present for COs. They Union says that the forcible confinement that occurred in this incident can have a significantly negative impact on COs. A report commissioned by Correctional Service of Canada regarding the impact of violent - 5 - acts on prison where thirty-three percent (33%) of the study’s participants were COs explains that “traumatic events that occur infrequently, such as hostage-takings and forcible confinements, cause significant stress to staff members … these events “are extraordinary, not because they occur rarely, but because they overwhelm the ordinary human adaptation of life”. 46. As a working mother of two young children, the health issues resulting from the events of March 11, 2014 were devastating for the wellbeing of her (grievor ‘A’s) family [9] In terms of the principles that apply in motions of this type, I was referred to Re Greater Sudbury Hydro Plus Inc. (2003) 121 L.A.C. (4th) 193 (Dissanayake). At para 12-14, the Board in that award wrote: 12. Both parties referred me to the oft-quoted judgement of the Ontario Court of appeal in Re Blouin Drywall Contractors Ltd. and Carpenters 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” 13. He went onto state: “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…” 14. 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. In Re Liquid Carbonic Inc. (1992), 25 L.A.C. (4th) 144 (Stanley), the arbitrator wrote at p. 147: The whole process of grievance arbitration, and grievance procedure, is designed to permit the parties at the earlier stages to resolve the dispute between themselves. Hence, - 6 - collective agreements invariably contain grievance procedure provisions so that grievances are funneled to an arbitration board only after the parties have had a chance to resolve the matter. It is our view that the comments of Professor Laskin and the decision in the Re Blouin Drywall case attempt to accommodate both values. 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 as 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 a 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 their 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. [10] At para. 17 of the Sudbury Hydro Plus decision, the arbitrator concluded: 17 I have concluded that the employer’s objection must be upheld. The problem here is not the union’s failure to specify an article number or an exact remedy. It is about its failure to raise the alleged violation until the arbitration state. In the grievance the union clearly complained that the grievor had been denied her bumping rights under the collective agreement. There was no mention of a “demotion”. The union submits that by complaining about the denial of bumping rights, it put the employer on notice that the union was objecting in a general way to the way the grievor was treated following the contract out. That, in my view, is not what the courts meant by “liberal reading” of a grievance. To include an issue through a “liberal reading” I 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. I am unable to reach that conclusion in this case. The grievance was very specific about the right, violated. It was about bumping rights. It was open to the union to clarify or amend the grievance during the grievance procedure to include additional claims. There is no suggestion that this was done. [11] This Board in Re Labanowicz 2012-3224 etc. (Lynk) decision dated September 12, 2014, referred to the Greater Sudbury Hydro Plus decision (supra) and wrote at para. 22: - 7 - 22 When faced with this issue, an arbitrator’s considerations would include some or all of the following: (i) a review of the language of the grievance, (ii) a review of the language of the collective agreement; (iii) a consideration of any other admissible evidence that would cast light on the parties’ understanding of the issues raised by the grievance, such as the scope of the discussions and exchanges during the grievance process; (iv) a review of the remedy sought; (v) an assessment of the time frame involved; and (vi) the degree of prejudice, if any, suffered by the employer. One useful indicator is to ask whether the other party reasonably should have understood upon reading the grievance and engaging in the grievance process that the new claim in question was organically part of the original grievance: Re Greater Sudbury Hydro Plus, supra. [12] With those principles in mind, I turn to consider whether the particulars in question constitute an expansion of the grievances which ought not be allowed. I note in this regard that no evidence was adduced as to what discussions, if any, took place during the grievance procedure. [13] Paragraph 33 I conclude that if the union is seeking to establish that any of the grievors’ article 9 rights were violated by being exposed to the risk of being trapped with inmates, with the potential for assault, rape or fire, that does not form part of any of the grievances even on a most liberal reading. That would not be permitted, and the particulars are struck to that extent. [14] However, that would not preclude the union from presenting evidence, if it so chooses, that the union members of the Health and Safety Committee members raised with the employer the many potential risks associated with computer malfunctions rendering door locks inoperable, as part of its argument that the employer was in breach because it should reasonably have anticipated what happened on March 11, 2014, and should have taken measures to address the risk. - 8 - [15] Paragraph 37 Even if liberally read, the grievances originally presented cannot reasonably be expected to communicate to the employer that it was faced with an allegation that article 9 was breached as a result of the grievors being subjected to taunting by inmates or as a result of creation of increased tension in the workplace. Those were not part of the breach alleged, directly or inferentially. [16] Again, however, if the union is claiming that as a result of the alleged breach by the employer when it subjected the grievors to the lock-in incident on March 11, 2014, a grievor or grievors suffered the consequences of taunting by inmates or increased tensions, it would not be precluded from leading such evidence during the remedial phase of this proceeding. That would be a matter of the impact of the employer’s breach on the grievor(s) which may be relevant for determination of remedy. An attempt to ground a breach on the basis of those allegations, however, would be an undue expansion of the grievance filed. To that extent, those particulars are struck. [17] Paragraph 38 The grievances before the Board are individual grievances. Therefore, each of the grieving employees must assert that her rights under article 9 were infringed by the employer’s action or inaction. Paragraph 38 makes no such assertion. Rather the assertion therein is about a risk of forcible confinement in corrections generally. At best, if stretched to the limit, the paragraph could be said to allege such a risk within the detention centre where the grievors are employed. In addition to the problem that such an allegation is not contained in the grievances filed, a general allegation of that nature is not properly raised in an individual grievance. As noted, an individual grievance must be about a breach of the rights of the grieving employee. The allegation in paragraph 38, even if it had been clearly asserted in the grievances, would not be proper. Such general allegations should properly be the subject of a union/policy grievance. Therefore, the particulars in paragraph 38 are struck in its entirety. - 9 - [18] Paragraph 46 In her grievance grievor A specifically mentions that at the time of the incident she was pregnant. Paragraph 46 is an assertion that the health issues caused to her as a result of the incident were devastating for the wellbeing of her family. That speaks to the impact of the incident on A and her family. This is an assertion that may be relevant to remedial issues. However, if the allegation is that the employer contravened article 9 by exposing A’s family to undue health and safety risks, that would constitute an improper expansion of the grievance filed. [19] While the foregoing disposes of the dispute relating to the particulars, I note that any and all allegations made in the particulars that may be pursued are subject to the usual requirements for adequacy of particularity, and disclosure. The rulings herein should not be taken as deciding the adequacy of the particulars or disclosure. [20] The Board remains seized with all outstanding issues relating to the grievances. This proceeding will continue as scheduled. Dated at Toronto, Ontario this 12th day of May 2016 Nimal Dissanayake, Vice Chair