HomeMy WebLinkAbout1991-1225.Johnston.94-12-19! ONTA RIO EMPLO YES DE LA COURONNE
CROWN EMPLOYES DE
GRIEVANCE CgMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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1225/91
IN THE I~.ATTER OF AN ARBITI~TION
Under
THE CRO~ EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT
BETWEEN
O~SEU (Johnston)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Health)
Employer
BEFORE~ S. Tacon Vice-Chairperson
J. Carruthers Member
A. Merritt Member
FOR THE K. Whitaker
UNION Counsel
Ryder Whitaker Wright
Barristers & Solicitors
FOR THE C. Nikolich
EMPLOYER Counsel
Management Board Secretariat
HEARIN~ September 29, 1994
INTERIM DECISION
This grievance concerns an alleged violation of article 18 of the
collective agreement. The grievor seeks compensation for excessive
workload and overtime. The employer asserts the grievance should
be dismissed without a hearing on the merits on several grounds.
This decision deals 'with those preliminary objections.
The facts relevant to the preliminary objections were not in
dispute and may be briefly set out.
The grievor retired from her employment in January 1994; this date
was approximately two years prior to the-point when her retirement
benefits would have maximized. She became an employee in January
1961. In the 1980's, she held the position of rehabilitation
counsellor. In 1984, the grievor was promoted to the position of
hospital services coordinator. This new position involved the
setting up of a new programme involving vocational rehabilitation
services for clients in various areas of the hospital. In
addition, the grievor continued working as a rehabilitation
counsellor. In 1988, the position was declared redundant. In
1988, the grievor was also involved in a classification grievance.
That proceeding was terminated, apparently following the completion
of the hearing but prior to the issue of an award, pursuant to the
social Contract 6c~ 1993. The grievor continued to work in the
classification of rehabilitation counsellor until her retirement.
In July 1991, the grievor filed the following grievance:
"I grieve that the Employer .has violated Article 18 of the
Collective Agreement by continuing to apply undue stress upon me.
By assigning me an excessive workload and failing to provide me
with assistance my health has been jeopardized".
The settlement desired reads:
2
"That the Employer acknowledge and compensate me for the excessive
workload that I carried from 1984 until 1988."
The grievor seeks to prove that she attempted to bring the alleged
overwork to the attention of her supervisors in the period from
1984 to 1988 and that management continued in the assigned overwork
despite awareness of her health problems. Further, the grievor
asserts that'she developed a stress disorder as a consequence of
the overwork. In that regard, a letter dated October ?, 1991 from
the grievor's physician was tendered in evidence on consent. Also
filed with the board was a memo from the grievor to the Director
Vocational Services, dated, October 6, 1987, wherein the grievor
states, inter alia, "This excessive workload is creating an
increasingly uncomfortable stress level for me." and suggests the
hiring of an additional person on contract for a period of time.
In his opening statment, counsel for the union asserted that the
breach of the collective agreement occurred in the Summer of 1991.
To adjudicate that issue, counsel argued that it was necessary to
hear evidence with respect to the pattern of work assignments from
1984 to 1988 which contributed to the breach in 1991. By way of
relief, counsel requested that the matter of compensation be
remitted to the parties. When pressed by the board to detail the
relief sought, counsel indicated that the grievor wanted $250,000
in "compensation", $50,000 re: sick leave ~redits and $20,000 for
pain and suffering.
Counsel for the employer urged the board to dismiss the grievance
on the following preliminary bases: timeliness; jurisdiction (both
that the matter was not a health and safety issue and that a work
related injury is compensable under the Worker%' CQm~en~at.~on Agt;
and remedy. Each argument is dealt with in turn.
The objection as to timeliness was grounded on the submission that
the grievor had failed to meet the time limits in article 27 of the
3
collective agreement. T~at is, the grievor, even on a subjective
basis, had knowledge of her health related concerns as early as
October 1987 but had failed to act. It was contended the time
limits were mandatory. With regard to the assertion that the
breach occurred in July 1991, counsel argued that the grievance and
the remedy clearly addressed the 1984-1988 period and, thus, could
not be considered a continuing grievance. From 1988 onwards, the
grievor had returned to her position as rehabilitation counsellor
and had not grieved that assignment. That her medical problems may
have continued was not tantamount to a continuing breach of the
collective agreement. Further, counsel submitted that the grievor
had knowledge of the grievance procedure, given her involvement in
a classification grievance in 1988. counsel emphasized that
proceeding would involve hearing evidence as far back as 1984.
Beyond the prejudice of failing memories after so long a period,
counsel indicated that the employer was specifically prejudiced in
that relevant records for 1984, 1985 and 1986 had been destroyed.
The earliest record available (a summary of which was filed with
the board) indicated overtime.worked by the grievor of a total of
forty-four hours in 1987 and 1988. Counsel conceded that the board
had the discretion to extend time limits but urged the board not to
do so given the excessive delay in filing the grievance and the
surrounding circumstances, including the grievor's knowledge and
substantial prejudice to the employer.
with respect to jurisdiction, employer counsel argued that the
grievance, should be characterized, not as relating to health and
safety, but to work assignment and staff complement. Those latter
areas are exclusively reserved to management and expressly stated
in the collective agreement as not subject to collective bargaining
and beyond the jurisdiction of a board. Counsel stressed that the
relief sought, financial compensation for alleged excessive
workload, revealed the true nature of the grievance as other than
a concern for health and safety. Also with respect to
jurisdiction, counsel ~ubmitted that if the grievor had suffered a
work-related injury, that injury was compensable solely pursuant to
the ~orkers' Compensation ~Act and the grievor should seek
compensation in that forum. Finally, with uespect to remedy,
counsel noted that the grievor was claiming considerable sums under
various headings. It was asserted that the employer was
substantially prejudiced in defending against those claims given
the elapse of time and destruction of records. In 1987-88, counsel
contended that the records indicated that the grievor had already
been compensated for overtime.
Cases referred to by counsel in support of her submissions that the
grievance should be dismissed on a preliminary basis included: ~
Crown 3n ~ight of ontario fMi~i-Stry of Come, unity & Social Services]
(unreported, December 22, 1989) (Samuels) (referred to as
"T.~ster"); The Crown in ~i~ Qf One, ri9 (Ministry of ~orrection~
Ser¥~qps ) (unreported, February 22, 1988) (Verity) (referred to as
"P.~erre").
Counsel for the union submitted that there was no request to extend
time limits. That is, .the grievor took the' position that the
breach only occurred in 1991. Counsel agreed that the board could
not fashion a remedy related to a time period prior to twenty days
preceeding the filing of the grievance, given the time limits in
the collective agreement. It was in' the griever's continued
employment as a rehabilitation counsellor from 1991 to her
retirement that the violation of the collective agreement occurred
and continued. It was contended that the employer's continued work
assignments to the grievor in that period, while not excessive on
the surface, placed the grievor's health and safety in jeopardy in
the circumstances. Counsel argued that the board should permit the
union an opportunity to prove a violation of article 18.1 and the
grievor should receive the benefit of the doubt with respect to the
possiblity of proving her case.
With regard to the ~oFker~' Co~%~en~at{on ;%g%, counsel submitted
5
that the board did not have the jurisdiction to determine whether
the grievor should proceed under that Act as the e~clusive
jurisdiction to determine that issue lay with the tribunals created
pursuant to that Act. Even if the board herein could decide that
question, relief under the collective a~reement and the
CompeDsatio~ Act could coexist. At the most, the board should
retain jurisdiction but defer determination of the preliminary
issues until the employer had appl!ied under the ~or~er~'
CompeDs~%ioD Act for a ruling as to whether the grievor's injury
·
was work-related and, thus, exclusively ~ompensable under that Act.
Counsel also submitted that the decision~ in ~ister, supra, was
wrong and should not be followed.
Counsel reiterated the quantum of financial relief sought, as noted
above.. Compensation was asserted to ad~ress: loss of promotional
opportunities (i.e., postings the grlevor otherwise would have
competed for but could not because of the employer's breach);
overtime worked but not paid for; loss ~f pension income involved
in her early retirement. That is, counsel contended that the only
reason the grievor retired two years learly was
because
of
the
employer's violation of article 18.1. ~ounsel conceded that this
!
alleged reason for retirement was never communicated to the
employer. Also sought were specific damages for out of pocket
expenses (e.g., travel time,.therapy co~ts that were not ~therwise
compensated, etc.).
Cases referred to by counsel in supportlof
his
submissions
that
the
grievance should be heard on the merits included: Tke Cro~% iR
!
R~qht of Ont~r~q ~inistry of Corrgct~6~a~ Serv~ces~ (unreported,
October 21, 1988) (Dissanayake) (referred to as ; Bend.~x
A,,tomotive Qf C~-d~ ?.rd. (1973), 3 L!A.C. (2d) Z! (Weatherill);
2ndlWCAT
Cha eg ,1. v. Cdhgn~ et al (1986) ! , Reporter 149; We].land
County Genera~ ~osD~%a] v. Qn%Ario N,r~e~ As~oc~,t~on (1987) 5
WCAT Reporter 97.
6
In reply, counsel for the employer submitted that there was no
indication before the hearing that the alleged breach occurred in
July 1991. Rather, the grievance focused on'the 1984 to 1988
period during which the grievor held the position of hospital
services coordinator. To assert'now that the breach occurred in
July 1991 and continued thereafter until the grievor's retirement
amounted to a fundamental change in the nature of the grievance.
Counsel noted that the employer was given no notice of the
allegation that she was forced to retire two years early because of
the alleged b~each and/or was entitled to sick leave credits and/or
had not been properly compensated for alleged overtime worked in
the period from July 1991 to the grievor's retirement in January
1994. Nor, counsel contended did the employer have any particulars
of the alleged breaches in July 1991 (and thereafter). Counsel
submitted that the board should rule on the preliminary objections.
If that did not dispose of the grievance, counsel requested an
order for full particulars and reserved her right to bring further
preliminary or other objections with respect to what counsel
characterized as a "new" grievance.
The board first deals with the objection related to timeliness
raised by employer counsel. In doing so, the board recognizes that
union counsel has asserted that the breach of the collectiwe
agreement on which the grievance is founded occurred only in July
1991 and continued until the grievor's retirement in January 1994.
The board will return to that issue infra.
There was no dispute that the time limits in the collective
agreement are mandatory; the question for the board is whether to
exercise its discretion to extend the time limits in the instant
case. Nor was its disputed, as a matter of fact, that the grievor
demonstrated subjective awareness of her health related concerns as
early as 1987 but had failed to act upon those concerns
notwithstanding knowledge of the grievance process, as evidenced by
the grievor's participation in a classification grievance filed in
7
1988. In that regard, the circumstances are clearly
distinguishable from those in the ~i9¥~e decision, supra.
Moreover, relevant records for 1984, 1985 and 1986 are no longer
available. Given the nature of the alleged violation of the
collective agreement, the board accepts that this constitutes
substantial prejudice to the employer if the employer was required
to meet the grievance on the merits. This specific prejudice is in
addition to the prejudice inherent in ~earing evidence concerning
matters as early as 1984. The delay inithis case from 1988 (at the
latest, i.e., when the p~sition of hospital services coordinator
v
was declared redundant) t~
circumstances, the- board is- not persuaded that it would be
appropriate.to exercise its discretionl to extend the time limits to
permit a hearing on the merits. To refer to the phraseology of the
T.a]~our Relat.~ons Act, the board is no~ satisfied that "there are
reasonable grounds for the extension ~nd that the opposite party
will not be substantially prejudiced b~ the extension."
The objection of employer counsel, theW, is upheld. However, given
the position take by union counsel at tthe hearing and adverted to
above, this conclusion is not suff.icient to dispose of the
grievance without further consideration.
Counsel for the union asserted that t e initial breach of article
18.1 of the collective agreement occurred in July 1991 and
thereafter to the date ofI the griever's
continued
retirement.
!
Counsel agreed that, if successful on ~he merits, relief could not
address the period earlier than twent~ days prior to the filing of
the grievance (the limitation period ~or filing a grievanc, in the
collective agreement). Counsel for ~he employer responded that
this assertion was raised for the first time at the hearing and
that the grievance had proceeded thu~ far on the basis that the
period in question was 1984 to 1988 when the griever held the
position of hospital ~ervices coord~n.a~or.
8
It is useful to here repeat the text of the grievance filed in July
1991.
"I grieve that the Employer has violated Article 18 of the
Collective Agreement by continuing to apply undue stress upon me.
By assigning me an excessive workload and failing to provide me
with assistance my health has been jeopardized."
The settlement desired ztates:
"That the Employer acknowledge and compensate me for the excessive
workload that I carried from 1984 until 1988o"
The board agrees with union counsel.that grievances are generally
drafted by lay persons and'should not be read with undue
technicality. Purther, the board agrees that, in dealing with
preliminary motions which seek the dismissal of a grievance without
a hearing on the merits, the board should act with caution and, in
doubtful cases, give the grievor the benefit of the doubt so as to
have a determination of the matter on the merits. In the instant
case and in that context, the board is satisfied that the grievance
filed in July 1991 clearly addressed an asserted violation of
article 18 in the period from 1984 to 1988 when the grievor held
the position of hospital services coordinator. In I988, the
grievor returned to the position of rehabilitation counsellor which.
she had occupied prior to 1984. In the board's opinion and
notwithstanding the able submissions of union counsel, the
grievance may only be properly, characterized as relating to the
1984 to 1988 period. A~d, for the reasons given, that grievance is
time-barred given the limitation period in the collective agreement
and the absence of a reasonable basis for extending the time
limits.
The board intends to deal briefly with several other matters. Both
counsel addressed the Worker~' Coz~Dens~t~on A~_~. Employer counsel
asserted, as a separated ground for dismissing the grievance, that
the alleged health consequences are compensable (if proved) as a
9
work related injury under the WQrkers' Compensation Act. Union
counsel asserted that the board had no jurisdiction to determine
whether the grievor~should proceed under that Act as.the exclusive
jurisdiction to determine that issue lay with the tribunals created
prusuant to that Act. Even if the board herein could decide that
question, union counsel argued that relief under the collective
agreement and the Workers' Compensation Act could coexist.
The board disagrees with the propositions propounded by union
counsel in that regard. Certainly, this board has no jurisdiction
to usurp the authority of the tribunals created under the Workers'
Compensation Ag%. However, that is~distinct from the authority of
this board to interpret external statutes in reaching a
determination with respect to matters within this board's
jurisdiction. The board concurs with the reasoning in the
decision, supra and the conclusion that this board is constrained
from awarding damages for work related injuries which are
compensable under the Workers' Compensation Act. In so concluding,
the board distinguishes those cases (such as, We]land County
General HOSPital, supra) where there has been a determination that
the injury is not compensable under the Wp~kers' Com~ensatio~ Act.
In the instant case, there has been no such determination; indeed,
there was no dispute that no application for compensation under the
Wg~kprs' ~o~u~ens~t~on Act had, as yet, been made. The board also
notes its acceptance of the notion that benefits under the
collective agreement may well be capable of co-existing with
compensation under the ~O~ker~s' Co~ensat4on ~q~. That issue,
however, is also to be distinguished from the instant case wherein
the grievor, in part, seeks monetary damages for an alleged breach
of article 18. The board considers its comments in this regard
appropriate given its ultimate disposition in this case.
The board has concluded that the grievance should not be dismissed
outright at this Juncture. Counsel for the 'union asserted, as
noted, that the breach occurred initially in July 1991 and
i0
continued until the grievor's retirement in January 1994. The
board has indicated that the grievance, as filed, cannot reasonably
or properly be characterized as referring to that time period.
However, the board is of the view that union counsel should be
afforded the opportunity to argue that the grievance be amended to
assert a breach of article 18 in July 1991 and continuing until
January 1994. That issue has not been the subject of full
submissions before the board and the board does not ~consider it
appropriate to dismiss the grievance without such an opportunity
for submissions. That opportunity is subject to the following
conditions in order to facilitate an orderly hearing of the issue.
If counsel wishes to proceed, the board directs that full
particulars be delivered in writing to employer counsel' no later
than four weeks from issuance of this decision. The particulars
must assert all material facts which union counsel seeks to prove.
For example, counsel asserted that the grievor had worked overtime
during the July 1991 to January 1994 period. Material facts
regarding the alleged dates and times of such overtime must be
stated. Further, the relief sought must be specified in'detail.
For example, counsel stated that the grievor lost promotional
opportunities (postings the grievor otherwise would have competed
for but could not because of the employer's breach). All material
facts related to those postings on which counsel wishes to rely
must be noted. Even if the board is ultimately persuaded that the
grievance may be amended to cover the period from July 1991 to
January 1994, it may well be that the board concludes the absence
of timely notice to the employer of the asserted relationship of
the decision to retire early (and/or not to apply for posted
positions) to the alleged breach of article 18 of the collective
agreement is sufficient to deny relief for such items. That matter
need not be determined at this point.
Within four Weeks of receipt of the statement of particulars,
employer counsel is to respond, in writing, to the allegations.
11
counsel is likewise to detail all material facts on which the
employer relies.
The statements of particulars are to be copied to the board and the
matter is then to be set down for hearing. If counsel for the
union decides not to proceed, the board and employer counsel are to
be notified, in writing. If the board receives such notification
and/or union counsel does not comply with the conditions noted
above, these proceedings will be considered terminated.
The board has indicated its conclusions regarding the claim for
damages which would otherwise be compensable under the Workers'
~ompe~sation Ac~ to provide 'some guidance to the parties, in
addition to the board's analysis regarding the timeliness objection
as initially raised by employer counsel. Even if the board accpets
an amendment to the grievance to address the period from July~1991
to January 1994, the board is not prepared to permit evidence to be
adduced with respect to matter~ from 1984 to 1988. To do ~o would
constitute prejudice to the employer, for the reasons noted in the
board's ruling on that issue.
In. making its directions, the board emphasizes that employer
counsel has reserved her right to bring further preliminary or
other objections with respect to what might conveniently be
characterized as an "amended" grievance, should union counsel seek
such an amendment and that be granted. That includes the right to
renew her objection as to timeliness and jurisdiction. The board
notes, in that regard, that the board has not herein dealt with the
argument regarding the characterization of the grievance, not-as
relating to health and safety, but to excessive workload and staff
complement. The board views that determination as unnecessary with
respect to the grievance as originally filed.
In summary, the board:
12
(a) concludes that the grievance, as originally filed, may not
reasonably or properly be characterized as dealing with the period
commencing in'July.1991 and continuing to January I994;
(b) upholds the timeliness objection of employer counsel that the
grievance, as originally filed, is time-barred and that grievance
is dismissed;
(c) is prepared to afford union counsel the opportunity to make
submissions that the grievance be amended to assert a violation of
article 18 of the collective agreement in July 1991 and continuing
to January i994, subject to the right of employer counsel to raise
objections (including those of' a preliminary nature), and orders
the parties to comply with the various directions noted above.
This panel remains seized.
DATED thislgth day of December , 1994.
Susan Tacon, Chair
i Dissent 'Dissent Attached'
J. Carruthers, Union Member
A. Merritt, Employer Member
DISSENT
RE: OPSEU (Johnston, P.) and Ministry of Health
OPSEU #91 D558; GSB #1225/91
Unfortunately, I must dissent from the majority award. It is clear to me from the caselaw
relied on by the Union in this matter that the only 'l'ribuna~ that has jurisdiction to
determine whether the Workers Compensation Act takes, away someone s right to pursue
a claim for compensation in another forum, is the W~orkers' Compensation Appeals
Tribunal. I agree that we have to make our decision in a,' manner which is consistent with
other statues. This means that we have to have regard to the Workers' Compensation
A.~_~. Having regard to that Act however it is my wew that. ~f one party w~shes to argue that
the right to pursue compensation before the Grievancel Settlement Board is taken
away
by the Workers' Compensation Act, then that party may' bring an application to the
, I ·
Workers Compensation Appeals Tribunal to have that question decided. It ~s clear to me
that neither this Tribunat nor the Courts have any jurisdi'ction to determine that question.
For this reason I dissent and would have decided ~hat the Union is correct in its
submission that the Grievance Settlement Board has no jurisdiction to decide whether the
right to pursue compensation on the grievor's part before this Board is taken away by
the provisions of the Workers' Compensa~tion Act.
Yours very truty,
arr'')
uf~:175