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HomeMy WebLinkAbout1997-1009JOLY98_09_02 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO _ _ GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (416) 326-1396 GSB # 1009/97 OPSEU 97E024 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees Umon (Manus Joly) Gnevor - and - The Crown m RIght of Ontano (Mimstry of the SohcItor General and CorrectIOnal ServIces) Employer BEFORE RIchard Brown Vice-ChaIr FOR THE LIse Leduc GRIEVOR Counsel Carolme Engelmann Gottheil Bamsters & SohcItors FOR THE Andre Champagne EMPLOYER Counsel Emond Harnden Bamsters & SolIcItors HEARING August 21,25, 26, 1998 \ "- ~ The umon contends the employer's treatment of Manus Joly contravened artIcle 3.2 of the collectIve agreement winch states There shall be no mscnmmatIon or harassment practIced by reason of an employee's memberslnp or actIVlty m the umon. The WrItten gnevance, dated May 9, 1997, reads as follows I, Manus Joly, gneve that I am bemg a VlCtIm of mscnmmatIon and harassment contrary to the collectIve agreement. There shall be no mscnmmatIon or harassment practIced on employees solely because of bemg actIve or bemg a member m the uruon (3.2) WorkIng m a pOlson envrronment, bemg the VlCtIm of abuse of power for years IS seen, felt and called "mental cruelty" I need to speak out and be heard by government offiCials, who really should want and need to be aware of what happened exactly I want to meet WIth R. RunclIDan. N McKerrell, L.D DIpalma, D Newman, A. Roberts, B Roy and R. LaVOIe FURTHERMORE I definItely will need to be compensated for all past, present and future emotIOnal pam and suffenng due to the dtscnmmatlOn, harassment and bemg completely Ignored for the past years by everybody m the cham of command. The employer ralsed a prehmmary objectIon to the tImehness of the gnevance Counsel agreed tins Issue should be deCIded based only upon Mr Joly's eVldence Insofar as the Issue of tImelmess IS concerned, employer counsel elected not to cross-examme the gnevor Employer counsel contends \ 2 1 hIs eVIdence demonstrates the gnevance should be dIsrmssed as untnnely A snmmary ofMr Joly's testunony and supportmg documents IS set out below I Manus Joly began workmg as a correctional officer at the L'Ongnal Jail ill October of 1980 He resIgned ill the summer of 1985 and was rehrred one month later The gnevor contmued to work as a correctional officer until he went on sIck leave ill August of 1996 He has been under the care of a psycInatnst ever Sillce Sometune ill 1989, Mr Joly was elected to a two-year term as a umon steward. While Ins testmlOny suggests he held tlns posItion agam after the exprration of Ins first term, the eVIdence does not dIsclose precIsely when he was re-elected or for how long. Mr Joly testIfied about how he was treated by two supervIsors In 1980, he was ordered by one supervIsor to dellver a food tray, Wlth cutlery and chma, to an mmate who had slashed Ins wnsts Wlth an ashtray the preVIous day The gnevor compIled under protest and the mmate used the spoon ill an attempt to remove Ins stitches. In 1992, the same supervIsor illstructed Mr Joly to accompany an mmate to the hOSpItal Wlthout asSIstance from a second correctional officer A gnevance was filed and settled, Wlth an expreSSlOn of regret by management, on the understandmg all future escorts would be ill accordance Wlth Mimstry pollcy In 1994, the same supervIsor completed Mr Joly's performance and plannmg reVIew He gneved and the assessment was reVIsed to ills satisfaction. As to the supervIsor's motive, Mr Joly testIfied. "He doesn't like me I don't know why I thmk It IS because of the umon." 3 : Mr Joly smd another supervIsor gave bun a "hard tune" from 1980 onwards. The first performance apprmsal done by tins supervIsor, at an unspecIfied date, caused the gnevor to "file a complamt" In 1983, the supervIsor failed to respond to Mr Joly's request for assIstance when he dIscovered an mmate hangmg m a cell. From May 8 to May 25, 1988, the gnevor kept 11 log detailing ills mteractIOn WIth tins supervIsor Mr Joly sent a wntten complamt to the Supenntendent, Robert Lacombe, on June 3, 1989 As a result, the supervIsor was drrected to take a course on human relatIons Matters dId not lll1prove from the gnevor's perspectIve In November of 1990, tins supervIsor demed Mr Joly's request for vacatIOn, on the ground two officers should not be on holIday at the same tune Documents showmg tins had occurred m the past were subnntted by the gnevor to the Supenntendent, but to no avail. In 1993 or 1994, the supervIsor m questIon was mvolved m an altercatIon WIth another supervIsor An mvestIgator was appomted to deal WIth tins mCIdent, whereas no such appomtment was made to address the gnevor's concerns. Mr Joly testrfied that labour relatIons at the Jail were "very bad" by 1989 In December of 1988, he had requested a leave of absence for one year He wanted to work elsewhere m order to mcrease ills earmngs and resolve ills finanCIal c:hfficultIes His request was demed m February of 1989 Also m 1989 Mr Joly had concerns about the smokmg polIcy at L'Ongnal Jail. In April he asked to be allowed to smoke when workmg alone m the arr condItIoned control module The Supenntendent suggested he wnte to the Deputy MinIster The Deputy replIed the matter was for Mr Lacombe to deCIde It appears permISSIOn to smoke m the control module was never r" granted. CorrectIonal officers, mcludmg Mr Joly, were repnmanded for ~, 4 I smokIng ill the mfirmary, even though the doctor smoked there The doctor stopped smokmg shortly after Mr Joly complamed about unequal treatment. When protectIve custody mmates performed constructIon work at the Jail sometnne ill 1989, Mr Joly objected on the grounds tins actIVIty put the pnsoners, staff and general pubhc at nsk. His objectIon went unheeded. In 1990, the MimstIy of CorrectIonal ServIces conducted an operatIonal reVIew of the L'Ongnal Jail, The resultIng report records that seven of thrrteen correctIonal officers rated staff-management relatIons as below average, four ass1gned a ratIng of average and three ass1gned a ratIng of above average In June and July of 1993, Mr Joly wrote three memos to management about dtfficultIes encountered ill the scheduhng of mmates to work ill the latchen. Matters eventually unproved as a result of weekly meetmgs held to address the problem. Mr Joly wrote to Mr Lacombe ill January of 1995 about a failure to screen mmates WlShmg to attend AA meetIngs, a shortcommg whtch the gnevor feared would result ill the cancellatton of the AA program at the Jail. The memo went unanswered. On May 14, 1996, ill the wake of the OPSEU strike, Mr Joly rece1ved the followmg memo from Maureen Martmsen, then a supefVlsor at the Jail. Please be adVIsed that any comments derogatory refemng to the recent strike 1S agamst the return to work agreement. Today's Chppillg makes reference to pUIllshmg the "scabs" whtch 1S posted on the UIllon board. Any further derogatory ChppillgS posted will result ill the removal of the UIllon board. Thts 1S none dtSC1phnary ill nature I ,- \~_. 5 I On June 16, 1996, Mr Joly wrote to Mr Lacombe complammg about the safety hazard posed by telephone access not berng available to correctional officers After Mr Joly's complamt, the SItuation was rectrfied. Accordmg to hun, Mr Lacombe had preVIously objected to telephone calls made by the local umon presIdent. A letter dated August 8, 1996, sIgned by most of the correctional officers at the Jail, was sent to the SohcItor General. The letter states labour relations had sunk to "an all tune low" and attributes the problem to the Supenntendent. The correcbonal officers also filed a group gnevance dated October 9, 1996 The remedy sought was "that management exerCIses Its nghts rn a reasonable and non-iliscnmmatory manner towards members of the bargammg umt." A document detailing the specIfic complamts underlymg the group gnevance refers to four correctional officers, all umon OffiCIalS at some pornt, who were currently on SIck leave for stress The entry about the gnevor reads as follows "former uruon steward--basIcally a good hearted guy that Just cracked under the pressure and frustratIOn." On November 8, the AsSIstant DIStrIct AdmImstrator, Mr R. LaVOIe, met With several correcbonal officers and theIr OPSEU representatIve to iliscuss the group gnevance The gnevor, who was on SIck leave, ilid not receIve notice of tIns meetrng until a few days after It occurred. By letter dated November 13, Mr LaVOIe proposed the estabhshment of a umon- management cOID.llllttee to address the employees' concerns Two uruon stewards objected to Mr Lacombe servmg as a member of tIns cOID.llllttee, but Mr LaVOIe lllltIally rnsIsted on the Supenntendent's parbCIpation. However, rn February of 1997 Mr Lacombe was reassIgned to a post outsIde r the L' Ongnal Jail. '\.- 6 I In April of 1997, Mr loly learned that Robert Ranger, another correctIonal officer, had been granted a one-year leave of absence ill 1995 (It appears Mr Ranger d1d not actually take the leave) Leammg someone else had been granted the type of leave demed to the gnevor prompted lnm to file the gnevance at hand. Mr loly ralsed the matter WIth IDS supervIsor on May 1, 1997 and filed the wntten gnevance on May 9 II The relevant tIme Inmt IS found ill artIcle 22.2 1 of the collectIve agreement: It IS the mutual deSIre of the partIes that complamts of employees be adjusted as qUlckly as possible and It IS llilderstood that If an employee has a complamt, the employee shall discuss it with the employee's immediate supervisor withm thzrty (30) days after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee ill order to gIve the nnmechate supervIsor an opportumty of adJustmg the complamt. (emphasIs added) Mr loly chscussed IDS complamt WIth lus supervIsor on May 1, 1997 DId tlus chscusslOn occur WIthm the penod of tlurty days specIfied by artIcle 22.2 I? All of the events about wluch Mr loly complams occurred far more than tlurty days before May 1, 1997 Some happened as early as 1980 and none happened later than August of 1996 when he went on SIck leave In short, the CIrcumstances gIvmg nse to the gnevor's complamt occurred more than tlurty days before he d1scussed the gnevance WIth lus supervIsor 7 . < I TIns observatIon does not end my mqurry under artIcle 22.2 1 The test estabhshed by that artIcle takes account not only of when events occurred but also of when they came, or should have come, to the attentIon of a gnevor F or tins gnevance to be tnnely, the eVIdence must demonstrate that the CIrcumstances gIVlllg nse to the complamt chd not come, and ought not reasonably t6 have come, to Mr loly's attentIOn until sometnne WIthm thuty days of the date when he chscussed the matter WIth Ins superVIsor Mr Joly rehes upon one pIece of mformatIon obtaIned dunng tIns tlnrty-day penod. On April 17, 1997, the gnevor learned that Robert Ranger had been granted a one-year leave of absence m 1995 If the grantIng of leave to Mr Ranger, coupled With the demal ofleave to Mr Joly, was a VIolation of the collectlve agreement, alone or m even m combmatlon WIth other events, at least part of the gnevance llllght be rendered tImely by what the gnevor learned m April of 1997 Conversely, IT the way leave requests were handled chd not contravene the agreement m any way, the entrre gnevance IS untImely DId the employer's treatment of leave requests VIolate artIcle 3.2 of the collective agreement? The eVIdence does not estabhsh exactly when m 1989 Mr Joly became a steward, but he conceded Ins election to tins post may have occurred after Ins leave request was demed m February Moreover, Mr Ranger also served as a urnon steward at some unspecIfied tIme Both of these correctional officers were members of the umon. Accordmgly, It can not be SaId that the demal of leave to Mr Joly and the grantIng of leave to Mr Ranger was m any sense "chscnmmatIon or harassment practiced by reason of an employee's membersmp or aCtiVIty m the umon." Accordmgly, the , 8 . i mformatIon obtaIned by Mr Joly ill April of 1997 cannot render hIs gnevance tnnely In summary, the gnevance was not lodged WIthIn the thrrty-day penod specIfied ill artIcle 22.2 1 ill Dmon couns'el urges me to extend the tnne lnmt found ill the collectIve agreement by utihzmg the dIscretIonary power conferred upon me by s 48(16) of the Labour Relations Act, 1995 The dual cntena to be applIed under that sectIon are the eXIstence of reasonable grounds for an extenslOn and the absence of substantIal prejudIce to the party OpposIte The factors to be consIdered ill detenmnmg whether there are reasonable grounds for an extenslOn were addressed by Mr Burkett ill Becker Milk Co and Teamsters Union (1978), 19 L.A.C (2d) 217 These are (i) the reason for the delay gIVen by the offendmg party; (Ii) the length of the delay; and (ui) the nature of the gnevance If the offendmg party satIsfies the arbItrator, notwIthstandmg the delay, that It acted WIth due diligence, then If there has been no prejudIce the arbItrator should exerCIse hIs dIscretIon ill favour of extendmg the tnne- lnmts If, however, the offendmg party has been neglIgent or otherWIse to blame for the delay, eIther ill whole or ill part, the arbItrator must nevertheless consIder the second and thrrd factors referred to above ill decIdmg whether reasonable grounds eXIst for an extenslOn of the tnne lnmts (page 220) ThIs decIslOn was CIted WIth approval and followed ill Corp of City of Toronto and Canadlan Union of Pub lie Employees (1990), 17 L.A.C (4th) 9 . , 420 (Spnngate) and Ferranti-Packard Transformers Ltd and United Steelworkers of America (1993),36 L.A.C (4th) 307 (Haefung) The tune lumt was extended ill all of these cases The reason for delay advanced by counsel for the umon IS that Mr Joly was not aware until April of 1997 that Mr Ranger's request for leave had been granted ill 1995 As I already have determmed the treatment of leave requests lid not contravene the collectIve agreement, tlus reason does not asSIst the gnevor Employer counsel contends the real reason why the gnevor delayed was to see whether he was satIsfied WIth the resolutIon of the group gnevance filed ill the fall of 1996 Whatever the gnevor's true motIve, the UIllon has not advanced any reason for the delay weIghmg m lus favour As to the length of the delay, the events about wluch Mr Joly complams happened between 1980 and August of 1996, but the gnevance was not liscussed WIth lus supefV1sor until May 1, 1997 Dmon counsel argues that, where liscnmmatIon or harassment takes the form of a course of conduct, there IS no smgle moment when the gnevance crystallizes and tIme begms to run. While I agree tune may not run from the first event m a course of conduct, It does start to run no later than the last event m the senes In tlus case, the last event occurred no later than August of 1996 As Mr Joly lid not approach lus supefV1sor until May of 1997, the delay IS at least ten months The grounds for extendIng a tIme lnmt are not as strong m tlus case as they were ill the cases cIted by umon counsel where an extensIOn was granted. The facts m Becker Milk and City of Toronto are sunilar to those at hand ill one sense--no compellmg reason for delay eXIsted there or here However, those cases are dIfferent than thIs one ill two sIgmficant respects 10 . ( (1) the gnevors there had been dIscharged, and (2) and the delay was only three weeks ill Becker Milk and seven weeks ill City of Toronto Ferranti- Packard also illvolved a dIscharge gnevance The delay of tlnrteen months ill that case was longer than the delay here, but Mr Haeflmg thought the gnevor may have had a valId reason for Waltmg so long. She had ceased workmg because of an illJury and thought she mIght be offered modrlied work ill the future The cases cIted by the umon where a tune lnmt was extended mIght be contrasted WIth Bakery Glaco and Canadian Association of Automobile workers (1991),21 L.A.C (4th) 265 (Waman) where a dIscharge gnevance was filed four and one-half months late and the uruon offered no explanation for the delay GIVen the length of the delay and the absence of any excuse or JustlficatIon, ArbItrator Waman refused to extend the contractuallnmtatIOn penod, even though the gnevor had been chscharged. The grounds for extendmg a tune lnmt ill the illStant case are weaker than those ill Bakery Glaco because Mr Joly has not been dISmIssed and he delayed at least ten months ill filmg ills gnevance Tlns analysIs leads me to conclude no extenSIOn should be granted of the tlme lnmt contaIned ill artIcle 22.2 1 The gnevance IS chsnnssed, ;?~ RIchard M. Brown, Vice-Charr Ottawa, Ontano September 2, 1998 11