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HomeMy WebLinkAbout2000-1280.Dales et al.02-01-15 Decision ~~~ o@~o EA1PLOYES DE LA COURONNE _QJ_L i~~i~~~i~T DE L "ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#1280100, 1420100 UNION#00D456, 01A042 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Public Service Employees Union (Dales) Grievor -and- The Crown In Right of Ontano (Ministry of Correctional Services) Employer BEFORE Loretta Mikus Vice-Chair FOR THE GRIEVOR Int Kelman Counsel Ryder Wnght Blair & Doyle Barnsters & Solicitors FOR THE EMPLOYER Mary Gersht Counsel Legal Services Branch Management Board Secretanat HEARING November 29, 2001 The gnevor Doreen Dales, was hIred as an unclassIfied Nurse II at the Guelph CorrectIOnal Centre In January of 1994 She suffered a workplace InJury on August 22, 1996 and went offwork on September 16 1996 Except for a work hardemng program In September and October of 1997 she has remaIned off work to the present. However whIle she was stIll at work she was part of a Umon gnevance regardIng the Employer's faIlure to convert a number of unclassIfied employees pursuant to ArtIcle 31 15 of the collectIve agreement. That gnevance was settled In October of2000 wIth the result that the gnevors were retroactIvely granted classIfied status to theIr respectIve posItIOns Ms Dales status In partIcular was converted to a classIfied employee on September 30 1998 Dunng that tIme she had been In receIpt of WSIB payments but was advIsed In the fall of 2000 that she had reached maXImum medIcal recovery At that tIme she submItted an applIcatIOn for L TIP benefits to ManulIfe In accordance wIth the terms of the collectIve agreement. She was advIsed In a letter dated November 9 2000 that she was InelIgIble for benefits because she had been an unclassIfied employee at the tIme of her InJury and was not actIvely at work when she became a classIfied employee She therefore dId not meet the reqUIrements under the plan and her applIcatIOn as demed. She filed a gnevance dated November 18 2000 In whIch she claimed that the Employer had faIled to pay her pay her premIUms for L TIP accordIng to artIcle 41 4 of the collectIve agreement. She asked for full restItutIOn of premIUms retroactIvely to September of 1998 to enable her to be elIgIble for L TIP benefits In December of 2000 she filed another gnevance allegIng that the Employer was In vIOlatIOn of artIcle 42.2 3 and askIng for full restItutIOn for all lost Income IncludIng Interest. At the first day ofheanng the Employer raised an obJectIOn to my JunsdIctIOn on the basIs that the collectIve agreement specIfically reqUIres that dIfferences about elIgIbIlIty for benefits be processed under ArtIcle 22 9 1 and 229.2, whIch read as follows 2 2291 An allegatIOn that the Employer has not provIded an msured benefits that has been contracted for m thIS Agreement shall be pursued as a Umon gnevance filed under ArtIcle 22 13 (Umon Gnevance) 22 9.2 An, other complamt or dIfference shall be referred to the Claims RevIew SubcommIttee of Jomt Insurance Benefits RevIew CommIttee (JIBRC) establIshed under AppendIx 4 (Jomt Insurance Benefits RevIew CommIttee) for resolutIOn. The JIBRC referred to In ArtIcle 229 IS expressly contInued In ArtIcle 43 and ItS terms of reference are set out In AppendIx 4 whIch deals wIth the purpose, composItIOn and dutIes of the CommIttee, a reVIew mechamsm to momtor the expenences under the plans and the establIshment of a Claims ReVIew SubcommIttee It IS clear from AppendIx 4 that all decIsIOns regardIng the chOIce of the carner the specIfics of the plan, the tendenng process and the basIs for recommendatIOns to the government regardIng the carrIer of chOIce are to be determIned by the JIBRC It IS equally clear that the Claims ReVIew SubcommIttee IS to "reVIew and make decIsIOns regardIng complaInts or dIfferences InvolvIng the demal of Insured benefits under the Central CollectIve Agreement when such Issues have not been resolved through the eXIstIng admInIstratIve procedures, save and except a complaInt or dIfference ansIng under ArtIcle 22 9 1 (Insured Benefits Gnevance) of the Central CollectIve Agreement" It IS the posItIOn of the Employer that I, as a Vice Chair of the Gnevance Settlement Board, do not have JunsdIctIOn to hear a gnevance regardIng the demal of benefits under the collectIve agreement. That JunsdIctIOn has been specIfically reserved to the JIBRC and the Claims ReVIew SubcommIttee Where the partIes have gone to these lengths to Insure an alternatIve to the Gnevance Procedure set out In the CollectIve Agreement, and have further taken care to use language to make that alternatIve route mandatory thIS Board must respect theIr IntentIOns and apply thIS collectIve agreement conSIstent WIth those IntentIOns The Umon, on the other hand, takes the posItIOn that these gnevances are filed under ArtIcles 41 4 and 42 1 of the CollectIve Agreement, both ofwhIch reqUIre the Employer to pay premIUms for Long Term Income ProtectIOn benefits It further submIts that these artIcles must be read conSIstent 3 wIth ArtIcle 3 of the CollectIve Agreement whIch prohIbIts dISCnmInatIOn on several grounds, IncludIng, for the purposes of thIS heanng, handIcap It was said by the Umon that once the gnevor became a cIvIl servant, she was entItled to have her benefit premIUms paid by the Employer She cannot be demed those payments because she has a handIcap That would be a contraventIOn of ArtIcle 3 and the Ontario Human Rights Code There IS no dIspute that the gnevor meets the defimtIOn of total dIsabIlIty In ArtIcle 4224 In that she IS "unable to perform the essentIal dutIes of any gaInful occupatIOn for whIch she IS reasonably fitted by educatIOn, traInIng or expenence" She cannot be treated In a dIfferentIal manner because she was dIsabled. The Umons asserts that ArtIcle 229 1 was Intended to apply to sItuatIOns where the partIes contracted for certaIn benefits that the Umon later alleges have not been provIded. For example, If the Employer had agreed to provIde basIc lIfe Insurance and dId not, ArtIcle 22 9 1 allows for the Umon to gneve on behalf of ItS members That IS not the case before me The heart of thIS dIspute IS the demal of benefits to someone wIth a handIcap whIch IS not contemplated by ArtIcle 229 Ms Kelman, for the Umon, also took the posItIOn that, If thIS gnevance IS In the wrong forum, the Employer has waived any nght to obJect at thIS stage of the proceedIngs It dId not raise any obJectIOn to thIS Board's JunsdIctIOn untIl late In the proceSSIng of thIS gnevance If It had done so earlIer the gnevor mIght have filed a JIBRC appeal as well The Employer's faIlure to obJect In a tImely fashIOn must be seen a Waiver of ItS nght to raise thIS JunsdIctIOnal argument at thIS stage FInally the Umon submItted that, If the proper forum for thIS complaInt IS JIBRC It wIll eventually come to me as one of the Chairs of the Claims ReVIew CommIttee and I should acceptJunsdIctIOn under both appoIntments In reply Ms Gersht, took the posItIOn that the Umon argument regardIng the Human Rights Code and ArtIcle 3 of the CollectIve Agreement deal wIth the ments of the gnevance and not wIth the prelImInary Issue of my JunsdIctIOn to contInue NeIther of the gnevances specIfically allege any vIOlatIOn of ArtIcle 3 or the Code and are therefore not before me In any event, any complaInt regardIng a claim of dISCnmInatIOn In the provIsIOn of health and welfare benefits was clearly Intended by the partIes to be dealt wIth under ArtIcle 229 1 ThIS gnevance concerns the demal of 4 L TIP benefits, a matter that IS clearly WIthIn the mandate of the Claims ReVIew SubcommIttee of JIBRC The process descnbed In ArtIcle 9 lIS mandatory The partIes cannot sImply bypass that process With respect to the Umon's argument regardIng Waiver the Employer submItted that a party cannot Waive ItS nght to raise an obJectIOn to the JunsdIctIOn of a Board of ArbItratIOn. If there IS no JunsdIctIOn to proceed, the faIlure ofa party to raise an obJectIOn earlIer In the proceedIng wIll not confer JunsdIctIOn where IS does not eXISt. FInally wIth respect to the Umon's submIssIOn that I take JunsdIctIOn of the gnevance as a chair of the Claims ReVIew SubmISSIOn, the Employer asserted that thIS gnevance has not been processed under that provIsIOn and cannot be converted to a JIBRC claim untIl It has complIed wIth the procedures of that CommIttee In support of ItS posItIOn the Employer relIed on the folloWIng cases Re OPSEU (Meades) and the Ministry of Correctional Services (July 17 1989) GSB # 1322/88 (KIrkwood) Re Insurance Corporation of British Columbia and Office and Professional Employees' International Union [1997] B C L.R.B.D No 87 Re Pullman Trailmobile Canada Ltd. and Miscellaneous Workers, Wholesale and Retail Delivery Drivers and Helpers Union, Local 351 (The "Teamsters") [1979] B C L.R.B.D No 43 Re OPSEU ( Rosamond) and Ministry of Citizenship, Culture and Recreation (December 16 1998) GSB # 2086/96 (LeIghton) Re Atomic Energy of Canada LTD and Society of Professional Engineers & Associates (1994) 41 L.AC (4th) 310 (Knopf) Re OPSEU (Moulton et al) and Ministry of Correctional Services (December 21 1988) GSB # 0231//88 (Watters) In support of ItS posItIOn the Umon relIed on the folloWIng cases Re OPSEU (Simon et al) and Ministry of Correctional Services (May 17 2001) GSB # 1390/00 (Mikus) Re OPSEU (Rhodes) and Ministry of Attorney General (November 18 1991) GSB # 866/90 (DIssanayake) Re OPSEU (Teil) and Ministry of the Solicitor General & Correctional Services (July 21 1997) GSB # 1419/94 (Venty) and Re OPSEU (Fung/Anand) and Ministry of Finance (Apnll6 1991 GSB # 104/90 (Stewart). 5 DECISION ThIS gnevance raises several Issues related dIrectly to the partIes' agreement on how to process claims for long term dIsabIlIty benefits It Involves specIfically the InterpretatIOn of ArtIcle 229 wIthIn the context of the provIsIOns of the collectIve agreement regardIng the provIsIOn of health and welfare benefits to the bargaInIng umt as a whole and the nght of an IndIVIdual to gneve the demal of those benefits The actual gnevances before me allege a vIOlatIOn of ArtIcle 41 and 42 The latter reqUIres the Employer to pay 85% of the monthly premIUm for the Long Term Income ProtectIOn plan (LTIP) The former reqUIres those payment to contInue whIle an employee IS reCeIVIng payments from the WSIB Absent any other consIderatIOns, ArtIcle 22, Gnevance Procedure would allow an employee who dIsputed the Employer's actIOns In thIS regard to file and process a gnevance to arbItratIOn If necessary to have hIs/her complaInt addressed. ArtIcle 22 sets out the procedure to follow If one belIeves he/she has a complaInt or dIfference wIth the Employer on any matter anSIng out of the collectIve agreement. That process IS to provIde an orderly method of dealIng wIth workplace Issues and to ensure that, where an employee belIeves the Employer has vIOlated the terms of the CollectIve Agreement, there IS an avenue to address those concerns In thIS case, however the partIes have determIned that there are some dIsputes that would be better dealt wIth In another forum, that IS the JIBRC and Claims ReVIew SubcommIttee process WithIn the gnevance procedure Itself, they have expressly stated theIr IntentIOns to deal wIth L TIP Issues In a manner dIStInct from other workplace dIfferences They have further dIvIded these L TIP complaInts Into two categones, one for those matter anSIng from claims that the Employer has faIled to provIde the benefits under the collectIve agreement, the other from claims that the Employer has provIded the benefits but demed them to a partIcular IndIVIdual In the former sItuatIOns, It IS the responsIbIlIty of the Umon to file a gnevance, In the latter the IndIVIdual The reasons for the separatIOn of claims IS ObVIOUS Where the Umon IS of the OpInIOn that, notwIthstandIng a promIse to purchase certaIn benefits for ItS members, the Employer has In some manner faIled to do so It IS entIrely appropnate that the Umon, on behalf of ItS members, file a gnevance to recover ItS losses It IS the Umon who negotIates WIth the Employer to determIne the benefits It wIll provIde based on 6 factors such as cost and expenence It IS the Umon who IS In the best posItIOn to deal wIth Issues ansIng out of the decIsIOns to provIde those benefits and at what level rather than IndIVIdual members who have not and cannot be part of that process On the other hand, questIOns anSIng out of an IndIVIdual's elIgIbIlIty to receIve benefits must, by theIr very nature must be processed by the IndIVIdual claimIng benefits The demal of benefits to an IndIVIdual concerns Issues of elIgIbIlIty for benefits, whether based on medIcal facts or general elIgibIlIty and must be consIdered on ItS own ments The questIOn beIng asked IS whether ArtIcle 22 9 confers exclusIve JunsdIctIOn on JIBRC to deal wIth all questIOns concermng Insured benefits I am of the OpInIOn that was what the partIes Intended when they negotIated ArtIcle 22 9 I begIn by notIng that the references to the resolutIOn of dIsputes regardIng Insured benefits IS found wIthIn the Gnevance Procedure Itself That sIgmfies, In my OpInIOn, that the partIes put theIr mInds to the proceSSIng of these umque complaInts and decIded they should be dealt wIth outsIde of the usual process Secondly the partIes were careful to separate, wIthIn ArtIcle 22 9 the two sItuatIOns It felt mIght anse under thIS provIsIOn They envIsIOned general complaInts about the provIsIOn of benefits to the bargaInIng umt as a whole and decIded that It would be the Umon who would carry the burden of assertIng and defendIng those claims They also knew that IndIVIdual complaInts would anse about elIgIbIlIty for benefits and decIded that all of those other complaInts would be dealt wIth by JIBRC To further sIgmfy the partIes' VIew on the umqueness of these claims, the partIes set up WIthIn JIBRC a Claims ReVIew SubcommIttee to deal wIth Issue of IndIVIdual entItlement. FInally to further emphasIse theIr IntentIOns, the partIes' adopted language that would clearly show theIr IntentIOns They stated that all general complaInts shall be pursued as Umons gnevances and that "any other complaint or difference shall be referred to the Claims Review Subcommittee..." All of that leads me to the Inescapable conclusIOn that the partIes aim was to provIde an alternatIve route for the resolutIOn of any dIfferences ansIng out of the provIsIOn of Insured benefits to ItS members and that alternatIve resolutIOn process IS mandatory That takes us back to the Instant gnevance The gnevances allege that the Employer has vIOlated ArtIcle 41 and 42 of the CollectIve Agreement In that the Employer has faIled to pay the 7 gnevor's premIUms for LTIP benefits What that translates to In real terms though, IS whether the gnevor IS or was elIgIble for L TIP benefits IS the first Instance If she IS InelIgIble accordIng to the provIsIOns of the Insurance plan negotIated by the partIes, It mIght be that the Employer has or has had, no oblIgatIOn to pay any premIUms on her behalf On the other hand, If she IS ultImately found to be elIgIble for benefits, and If the Employer has faIled to pay benefits on her behalf, her claims under ArtIcle 41 and 42 have ment. All of that IS subJect to an ImtIal findIng on her elIgIbIlIty That IS the very dIfference or claim the partIes Intended to be heard under ArtIcle 22 9 Any claim therefore for benefits, IncludIng the payment of premIUms, that depends on a findIng of elIgIbIlIty must be placed before JIBRC and, If necessary before the Claims ReVIew SubcommIttee The Umon has argued that the Employer has waived any nght to obJ ect to my JunsdIctIOn by It acceptance of the gnevance In the first Instance and ItS actIOns In contInuIng to process the gnevance untIl after the second stage There IS no questIOn that a party can Waive ItS nght to obJ ect to procedural IrregulantIes In the proceSSIng of a gnevance If a party allows the other sIde to contInue wIthout alertIng It to a forthcomIng obJectIOn, It nsks beIng estopped from dOIng so later However a party cannot Waive an obJ ectIOn to the JunsdIctIOn of a Board of ArbItratIOn. That IS not a procedural matter but one that goes to the heart of the authonty of the Board to hear and determIne a dIspute The Board of ArbItratIOn at the Gnevance Settlement Board denves It JunsdIctIOn In the first Instance from an Order In CouncIl conferrIng on It the authonty to hear and determIne dIsputes between the partIes to the Gnevance Settlement Board. Absent that Order In CouncIl, a Vice-Chair has no JunsdIctIOn to proceed. NothIng the partIes say or faIl to say can confer JunsdIctIOn on a Vice-Chair If there IS no Order In CouncIl SImIlarly the secondary JunsdIctIOn of an arbItrator In the pnvate sector denves, In the maIn, from the collectIve agreement. If there IS no JunsdIctIOn under the collectIve agreement, an arbItrator cannot take JunsdIctIOn over a matter absent the partIes express agreement otherwIse If, as I have found In thIS case, a specIalIzed tnbunal has the exclusIve JunsdIctIOn to determIne Issue of elIgIbIlIty I cannot take JunsdIctIOn nor can one party grant me JunsdIctIOn to determIne an Issue WIthIn ItS mandate The doctnne of Waiver does not apply FInally IS the Important questIOn of the applIcatIOn of ArtIcle 3 or the Ontario Human Rights Code to these gnevances There has been a clear allegatIOn that the Employer's actIOns In denYIng 8 the gnevor L TIP benefits or In refusIng to pay the premIUms on her L TIP benefits IS contrary to both. It was said that these acts dISCnmInate agaInst the gnevor on the basIs of handIcap The Employer refused to pay her premIUms because she was handIcapped at the tIme of her applIcatIOn for benefits and that IS contrary to the CollectIve Agreement and the Code The Employer argues that these allegatIOns do not appear on the gnevances and are more related to the ments of the gnevances rather than the prelImInary matter of JunsdIctIOn It seems to me that these Issues are Inextncably tIed to the Issue of elIgIbIlIty If the gnevor was demed benefits because of the terms of the Insurance plan negotIated by the partIes, and there was a findIng that was dISCnmInatIOn on a prohIbIted ground under the CollectIve Agreement and/or the Code the partIes would be reqUIred to amend the plan to conform to the legal reqUIrements under both That would be of sIgmficant Interest to the members of JIBRC On the other hand, unlIke claims for benefits, an allegatIOn of a vIOlatIOn of ArtIcle 3 or the Code are not lImIted to the procedures under ArtIcle 229 AllegatIOns of such a senous nature cannot be constraIned by the procedural lImItatIOns of the partIes On that basIs I have concluded that I do have JunsdIctIOn as a Vice-Chair of the Gnevance Settlement Board to hear the gnevances before me so far as they relate to allegatIOns of an Infnngement of the gnevor's nght to be free from dISCnmInatIOn on the basIs of handIcap However the JIBRC and the Claims ReVIew SubcommIttee have sImIlar and concurrent JunsdIctIOn to determIne these Issue dunng a heanng on a claim for benefits under AppendIx 4 of the CollectIve Agreement. GIven my comments on the IntentIOns of the partIes to confine Issues regardIng Insured benefits to the procedures under ArtIcle 22 9 It seems to me that would be the preferred route for an allegatIOn of dISCnmInatIOn In the provIsIOn and/or demal of these benefits That would provIde for a consIderatIOn of the allegatIOns before the very commIttees and subcommIttees that the partIes have chosen to decIde these Issues 9 I leave It to the partIes to determIne how to proceed and to advIse me of theIr IntentIOns before our next day of heanng. Dated at Toronto thIS 15th day of January 2002 ~ . . -=: ..- Loretta Mikus, Vice-Chair 10