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HomeMy WebLinkAbout1992-1084.Manji.93-08-03 -~-~--------,,----,,---,-----~'------~-~'"-~-' -.,------.._.~.-----~~----- ~ --- -.--- -_.~~ --- _.,....____ ___ _____..~_ _____._ ___. ~______.__n__---'_ _ - .a. ~ \ ~". ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO - GRIEVANCE COMMISSION DE , 1111 SETTLEMENT REGLEMENT o. _ BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO M5G IZ8 TELEPHONE/TELEPHONE (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) MSG IZ8 FACSIM}LE /TELECOPIE (416) 326-1396 1084/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Manj i) Grievor - and - The Crown in Right of ontario (Ministry of Government Services) Employer BEFORE J. Devlin Vice-Chairperson FOR THE N Luczay GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE P Toop EMPLOYER Staff Relations Officer Management Board of Cabine~ HEARING July 19, 1993 - - - .--------~ ----_._--~-~--~~-----=------....,.---.------------.----:.,.. '-~--'-- - ----- -_..............._'-~--------~----.~---....::.....- --- ,. . ., SUPPLEMENTARY AWARD In the Board's earlier award in this matter, it was held that if the Employer intended to rely on a particular feature of benefit coverage, such as the time limit for submitting claims for orthodontic expenses, it must be demonstrated that the Employer complied with its obligation to make available to employees an information booklet with regard to insured benefits as provided in Article 44.6 As there was some dispute concerning compliance with this obligation, the hearing "" was reconvened to addr~ss this issue. ~ The evidence introduced by the Employer indicates that a current information- booklet was published in 1991 and copies of the booklet were forwarded to each Branch in sufficient numbers so that one copy could be distributed to each employee. No evidence was introduced, however, as to the procedure followed in the actual distribution of booklets The evidence introduced by the Union indicates that, in fact, in the Ferguson Block where the Grievor worked, copies of the booklet were not distributed to all employees. Moreover, although a notice appeared in the "In Touch" publication in July of 1991 indicating that copies of the booklet could be obtained from the Human Resources Services Branch, there were evidently .! I ~-----------------,----------~---~---....,-_.~.."------~----~ ---- ----'-"--- -. -~~---~-------- -----._- -,..---------"~- .. .' 2 not sUIficient copies to meet the demand Accordingly, as a result of a shortage of booklets, an agreement was reached between management and the Union whereby a copy of the~booklet was to be posted on employee bulletin boards in November of 1991 Difficulties relating to distribution of the booklet, however, evidently continued into 1992. The Grievor testified that she was not provided with an information booklet either in 1991 or at any earlier date. (It would appear that prior to 1991, the most recent booklet was issued in 1986 which predated coverage for orthodontic expenses although the time limit for submitting claims had application to - other benefits.) In any event, the Grievor testified that she did not recall seeing the "In Touch" publication in July of 1991. As well, she was on vacation in November of the 1991 and testified that upon her return, she -did not see a copy of the booklet on the bulletin board on the 13th floor where she worked. Moreover, the Grievor explained (as she did on the previous day of hearing) that she did not become aware of her entitle~ent to orthodontic benefits until speaking to a co-worker in the sprin9 of 1992, fol~owing which she obtained a copy of the information booklet and submitted the claim which gave rise to the grievance in this case. I ---._~------'- -~"'--~----:----'''''~---7"" ----;:---- --~ -----~------.-~~-~- -~------~-------..---_.___________~~___ __ ___.___ ______ _~_ _ ____ ---..-- ---~-- . ~ 3 The issue, then, is whether the- Employer complied with Article 44.6 of the collective agree~ent which provides as follows 44 6 The Employer shall make available to employees an information booklet with periodic updates, when necessary, within a reasonable period of time- following the signing of a new collective agreement or following major alterations to the plans While the Employer contended that there was no requirement to make an information booklet available in this case as the parties have specified that this requirement arises "when necessary", it would appear that this phrase has application to periodic updates rather than to the booklet itself. In any . event, the evidence indicates that in 1991, the Employer published a booklet for the first time since 1986 and, in the circumstances, it cannot be seriously suggested that there was no requirement to make the booklet available to employees in accordance with Article 44.6. Moreover, while I agree with the Employer that the obligation to make the booklet available does not necessarily require that a copy of the booklet be hand delivered to each employee, at minimum, the Employer must ensure that employees are advised of the means by which copies of the booklet may be obtained or, alternatively, the means by which they may gain access to the information contained in the booklet - - ~-----'-- - ~~ - ~ - ~---- I ___-_ -~_._.~__~_ ~_.~ ~- .~-'---"'-'-'--:;'--::-C"------ --"~-~--~----""-- -----..,.-"::__._-_._~---~- -- -'--"'>~'----- --".. .~._-~- ::" ~ . O' , . . 4 In this case, the evidence indicates that while the - Employer attempted to provide each employee with a copy of the booklet, there were evidently not sufficient copies for employees in the Grievor's work location and I accept the Grievor's evidence that she was not one of the employees to whom a copy of the booklet was provided There was also no evidence to indicate that a copy of the booklet was, in fact, posted on the bulletin board on the 13th floor of the Ferguson Block where the Grievor worked and, in my view, a single notice appearing in one issue of the "In Touch" pUbliqation to indicate that copies of the booklet could be obtained from Human Resources, is not sufficient to . satisfy the requirements o~ Article 44.6. " Moreover,while certain evidence introduced by the Employer indicates that there are other means (apart fron the booklet) by which employees may be advised of changes in benefit coverage, there was no evidence to indicate that these means were '\ used to apprise employees of limitations relating to the submission of claims for orthodontic expenses In the result, having failed to satisfy the requirements of Article 44.6, I 'find that the Employer cannot rely upon the time limi~ for submitting orthodontic claims set out in the insurance plan. .Accordingly, the grievance is allowed , and the Grievor is entitled to rem~mbursement for orthodontic expenses in,curred in 1989 and 1990 ih accordanc~ with Article '---~~--~~"---'-'----~----~_._-~~-------,--~_._,----~._--~-,_._-~,--- ------ ~, ~ .., ~. 'I ,~ '\ 5 57 2 of the collective agreement. I shall remain seized for purposes of implementation of this award. DATED AT TORONTO, this3rdday of August, ,1993. --- ~J.Z\~ ~" \ Vice chairperson .. I