HomeMy WebLinkAbout2014-1088.Botosh.18-02-20 Decision
Crown 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# 2014-1088; 2014-1089; 2014-1238
UNION# 2014-0405-0007; 2014-0405-0008; 2014-0405-0009
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Botosh) Union
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The Crown in Right of Ontario
(Ministry of the Attorney General) Employer
BEFORE Randi H. Abramsky Arbitrator
FOR THE UNION Jane Letton
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Jonathan Rabinovitch
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING DATE January 29, 2018
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DECISION
[1] The Employer, the Ministry of the Attorney General, has raised a preliminary
motion to dismiss a number of the particulars filed by the Union on the basis that
the contested allegations are not reasonably part of the grievances filed by the
Grievor, Michelle Botosh, and thus constitute an improper expansion of the
grievances. In addition, it asserts that many of the allegations set forth in the
particulars were not timely raised. The Union opposes the Employer’s motion.
Facts
[2] There are three grievances submitted to the Board. The first, dated April 22, 2014,
alleges as follows:
The employer has unreasonably and vexatiously denied my leave of absence
contrary to my rights under Article 24 of the CA and the Employment Standards
Act and any other Article, Statute or legislation that may apply. Furthermore,
the employer’s egregious and discriminating decision contravenes Article 3 of
the CA and the Ontario Human Rights Code and all other Articles of the CA,
Statute or Legislation that may apply.
[3] The “settlement desired” was “Th[at] I be granted the required leave of absence
without delay, full redress, to be made whole or any other remedy appropriate by
an arbitrator.”
[4] The second grievance, dated May 5, 2014, is similar. It states:
The employer has unreasonably denied my leave of absence without pay for
medical reasons contrary to Article 24 and 44 of the Collective Agreement and
the Employment Standards Act and any other Article, Statute or Legislation
th[at] may apply. Furthermore, the employer’s egregious and discriminating
decision contravenes Article 3 of the Collective Agreement and the Ontario
Human Rights Code and all other articles of the CA, Statute or Legislation that
may apply.
[5] The settlement desired was: “That I be granted the required the required leave of
absence without delay, full redress, to be made whole or any other remedy
deemed appropriate by an arbitrator.”
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[6] The third grievance, dated June 3, 2014, alleges:
By unilaterally, unjustly, arbitrarily, and without cause declaring that I
abandoned my position the employer has breached and/or denied my rights
under Articles 2, 3, 20, 21, 24, 53, 70 and any other article that may apply. They
have also breach[ed] and/or denied my rights under the Public Service Act of
Ontario, the Ontario Human Rights Code, and Ontario Employment Standards
Act and any other legislation, statute and regulation that may apply.
[7] The “settlement desired” was “[t]hat I be granted the required leave of absence
without delay, full redress, to be made whole and any other remedy deemed
appropriate by an arbitrator.”
[8] At the time she filed the grievances, the Grievor was enrolled in an LLB program
in Leeds, England. She did not attend the Stage 2 hearing on her grievances.
There was no evidence presented in regard to what was discussed at that
grievance meeting.
[9] After the grievances were referred to the GSB, the Union submitted its particulars
to the Employer. The Employer now seeks to have the Board dismiss Particulars
1-20, 22, the second sentence of 23, and conclusions 41-43. The particulars are
set out below.
1. The Grievor disclosed her disability and accommodation needs upon her hiring
as an unclassified Courtroom Clerk Registrar in March 2007. This was not a
permanent position. These needs included a cart for her files and a Val glove court
gown. The cart would regularly go missing.
2. Due to the regular rotation of judges, the Grievor would have to repeatedly
disclose her physical disability to Judges, some of whom were unwilling to
accommodate the Grievor or accept that she was sometimes slower at doing her
job.
3. In 2008 human resources brought in Vivian Carpenter, whose role was
unknown to the Grievor but who spoke to her about [the] job and what training she
wanted. The Grievor suggested that she train in French as, among other things,
there was a shortage of Bilingual court clerks. However, Ms. Carpenter suggested
that the Grievor attend a CV writing course.
4. The Grievor was offended by this suggestion as she holds a Bachelor’s degree
and she advised Mr. Fagan and Mr. Chin that she found Ms. Carpenter’s
comments and suggestions offensive and she was told that Ms. Carpenter would
not contact her further.
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5. In 2008 the Grievor was not successful in a job competition for a permanent
court clerk position. She was not offered any accommodation for the written test
and she was required to travel by public transportation after a long day in court in
order to attend to write the test.
6. After the Grievor returned from a two week vacation from February 14th to March
2nd she was not scheduled for work. The Grievor had to apply for Employment
Insurance and communicated with management about the lack of hours.
7. In November 2009 the Grievor applied for another permanent position and she
obtained accommodations during the testing process. She was successful.
8. As of January 1, 2010 the Grievor was an FPT 1500 Courtroom Clerk. As a
result of the increase in hours and a corresponding assignment to longer matters
which often, at the judge’s direction, went without breaks of lunch.
9. As a result of this increased workload the Grievor began to struggle with fatigue
and pain. This was exacerbated by being assigned court assignments that she
was unfamiliar with and had no, or limited training.
10. In the spring of 2010 the Grievor was assigned a long trial with a judge that
she did not feel comfortable disclosing her disabilities to as the judge belittled and
centred her out. She was required by management to continue to work on the trial
with the judge despite the judge requesting that she not be assigned to their court.
The Grievor became sick to her stomach as a result.
11. At one point the exhibit list was not saved in the electronic system and after a
co-worker did not provide an electronic copy as promised, the Grievor had to re-
enter it while the trial was going on and exhibits were being freshly entered.
12. The Grievor’s stress levels and fatigue increased.
13. In July 2010 the Grievor woke up and could not move the left side of her neck
but went to work as she was told it was short staffed. The Grievor was assigned to
work in a court instead of being sent home.
14. The Grievor’s doctor placed her on sick leave due to severe cervical neck
strain until after the August long weekend.
15. The Grievor returned to work and provided her manager, Ms. Sandy Kelly with
a doctor’s note about her restrictions and limitation. Ms. Kelly did not provide any
accommodation and there was no discussion about the Grievor’s restrictions and
limitations.
16. The Employer was aware that the Grievor needed to attend to physiotherapy
appointments but did not amend her court assignments to allow her to be able to
attend these appointments.
17. In September 2010 the Grievor’s physician recommended that she be placed
on a 4 day work week and that she alternate office duties with court duties. The
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Grievor was provided with a 4 day work week but her duties were not amended
and so her health continued to deteriorate.
18. When the Grievor inquired about the failure to accommodate the
recommendations that her work schedule be alternated the Team Lead who was
in charge of scheduling, Donalda, told her to “suck it up buttercup.”
19. The Grievor documented the failure to accommodate on the electronic
reporting system.
20. In 2011 Richard McAndrew became the Grievor’s reporting manager and she
raised the issue of her need to be accommodated. Mr. McAndrew put an
accommodation plan in place; however, this was not implemented by those
responsible for scheduling. The Grievor’s stress and anxiety increased as she
became increasingly sleepless over the prospect of being reinjured due to the lack
of accommodation.
21. In February 2012 the Grievor went off work sick and ultimately was approved
for LTD.
22. The Grievor was regularly harassed by Manulife for updates and to return to
work.
23. In June 2013 the Grievor was accepted into the LLB program in Leeds,
England. The Grievor decided to go because she was not being accommodated
at work and she believed that Manulife would cut her off benefits and require her
to return to work.
24. On September 22, 2013 the Grievor formally requested a leave of absence
without pay (LWOP) commencing October 1, 2013. The LWOP was approved on
October 8, 2013 retroactive to October 1, 2013 until January 3, 2014.
25. On September 30, 2013 the Grievor advised Manulife that she was moving to
England to purse her LLB but that she would be continuing her medical treatment.
26. On October 3, 2013 the Grievor was advised by Manulife that her LTD benefits
were terminated because she was pursuing her LLB.
27. On December 6, 2013 the Grievor requested the maximum amount of LWOP
time.
28. On December 12, 2013 the Grievor’s LWOP was extended until April 6, 2014.
29. The Grievor requested a further extension of her LWOP on December 13,
2013 to accommodate her exams.
30. On December 27, 2013 the Grievor spoke to her new Manager Lynn Decaire
who advised that the LWOP would not be extended and that the Grievor “would
have to make some decisions.”
31. On March 15, 2014 the Grievor again requested that her LWOP be extended
as she was not fit for her home position.
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32. On April 3, 2014 the Grievor requested the LWOP be extended until
September 2015. She entered into an email exchange with Ms. Lynn Decaire to
extend her leave. On April 4, 2013 this request was denied as she was deemed fit
to return to work by Manulife. The Grievor was directed to return to work on April
14, 2014.
33. On April 9, 2014 the Grievor provided the Employer with a note identifying that
she was medically unfit to work.
34. The Grievor filed a grievance on April 22, 2014, stating “The Employer has
unreasonably and vexatiously denied me leave of absence contrary to my rights
under Article 24 of the CA and the Employment Standards Act and any other
Article, Statute or legislation that may apply. Furthermore, the employer’s
egregious and discriminating decision contravenes Article 3 of the CA, the OHRC,
and all other articles of the CS, Statute or Legislation that may apply.”
35. On April 30, 2014, the Grievor was advised that sufficient medical was required
to support her continued absence.
36. On May 5, 2014, the Grievor filed a grievance alleging violations of article 3
and the OHRC and that the Employer unreasonably denied her LWOP.
37. On May 8, 2014 the Employer sent the Grievor a letter advising that sufficient
medical had not been received and that if she did not return to work the Employer
would declare that she had abandoned her position.
38. On June 3, 2014 the Grievor attended a physician to obtain a medical report
identifying that she was unable to return to work due to her medical condition. This
same day the Employer terminated her employment for abandonment.
39. The Employer refused to consider the medical report which was completed on
June 6, 2014.
40. The Grievor filed her final grievance regarding the termination for
abandonment.
Conclusions:
41. By failing to properly accommodate the Grievor, the Employer breached article
3 and the OHRC. The Employer did not ensure that the Grievor’s disabilities were
properly accommodated. Furthermore, the Grievor suffered significant harm to her
dignity and self-worth.
42. The Employer did not take appropriate steps to ensure that the judiciary
understood her accommodation needs. As a result she was subject to abusive
and harassing behaviours from the judiciary.
43. Due to the Employer’s failure to properly accommodate the Grievor
exacerbated her physical disabilities and injuries and as a result she had to go on
sick leave. Had the Employer properly accommodated the Grievor she would not
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have had to go on sick leave with the attendant loss of income. The Employer was
liable for the difference in pay.
44. The Employer unreasonably denied the Grievor’s request for a LWOP as she
was medically unable to return to work in the courthouse and was reasonably
pursuing her law degree.
[10] On examination-in-chief, the Grievor testified that in March 2007, she was hired,
on a contract basis, as a Courtroom Clerk Registrar. During her training, she was
advised that the position would be on-call, as needed. She became a permanent
Courtroom Clerk Registrar in January 2010. It was her view that the Employer
failed to accommodate her throughout her work for the Ministry, which led to her
becoming ill and unable to work, starting February 11, 2012.
[11] She explained that she did not file a grievance at that time because she was
“medically overwhelmed.” She explained that she had a “relapse” in July 2010
when she was overworked. That was when she woke up and could not move her
neck, yet she went into work because she was told that the Employer was short-
staffed. She left work early but returned the next day because she was concerned
about her job. Again, she had to leave work early. Her doctor put her off work, and
she was on three pain medications. She was referred to a physical medicine
doctor, had physiotherapy and massage therapy. It was an “overwhelming
situation for me.” Between 2010 and 2011, she had three MRIs, x-rays and follow-
up tests.
[12] Some of her medical issues stemmed from a “slip and fall” accident in 2003. Some
were caused by a long-standing disability, which left her with no dexterity in her
left hand and low mobility on her left side.
[13] She also testified that after her first relapse, when she returned to work, she was
fearful she would reinjure herself if she returned to clerking without
accommodation. She had “anxiety attacks” that the Employer would force her back
into clerking.
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[14] The Grievor became ill again in February 2012, and was off work from that point
forward. After her short-term sick benefits were up, she applied for and was
accepted for long-term disability (LTD), starting on August 11, 2012.
[15] In June 2013, she was accepted into an LLB program at Leeds. She testified that
it was her original intent to do a Masters at Leeds in 2004, then return to Canada
to obtain a law degree. She had done some undergraduate work there, and was
familiar with the city and the school. She applied for the Masters program for 2004,
but because of her accident, which occurred in 2003, she was unable to attend.
She deferred and reapplied a number of times between 2004 and 2013, including
applying for the LLB program.
[16] She explained that she reapplied to Leeds in 2013 because no one was helping
her in Toronto. She feared being cut off LTD and being forced to return to work.
She felt overwhelmed in Toronto, in part because she lived near the workplace
and if she went out she would regularly run into colleagues who wanted to know
when she was returning. In her view, things “got really bad here.” She wanted to
leave.
[17] She still did not consider filing a grievance because of her medical problems and
her anxiety attacks. She did speak to an OPSEU representative at this time.
During that meeting she “explained what happened”, why she felt she “couldn’t go
back”, that she “can’t clerk anymore” or live where she was living. She felt
“helpless” and “couldn’t sleep at night.” The whole situation was “overwhelming.”
She left, hoping to “refocus my life.”
[18] In September, 2013, after she was accepted at Leeds, she formally requested a
leave of absence without pay. Her request was granted until January 2014. She
then requested an extension which was also granted, until April 2014. She was
advised, by management, on December 27, 2013, that her LWOP would not be
extended past April, and that she would have to make some “decisions.” She did
not consider grieving then. She had come home for Christmas and was “dealing
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with other things in my life.” She felt that she had requested the leave of absence
without pay both for academic reasons and medical reasons. The Employer, in
her view, improperly rejected her medical documents and her academic reasons.
[19] The LLB program was a two-year program, which ran from October to December,
with a month off for the holidays, then February to April, with a month off to prepare
for exams, with the exams in May and June. She did not pass all of her courses,
due to illness and other stressors including, in her view, the Employer’s actions,
which she viewed as “threatening.”
[20] When the Employer denied her requests for extensions to the LWOP, the Grievor
contacted the Union again. Eric Moran spoke to her, and he advised her to file a
grievance. She had dealt with him one time before, in the Spring of 2013, when
Manulife was seeking medical information based on an old consent, and she
wanted to know her rights. She testified, on cross-examination, that in the Spring
of 2013, she provided him the whole history of her situation with the Ministry, and
although he said that it was “awful” he “didn’t say to file a grievance.”
[21] On cross-examination, the Grievor acknowledged that she was generally aware
that there could be time limits for legal actions because her lawyer for the “slip and
fall” accident advised her in 2005 that there were only five days left to file a law suit
about the incident. The Grievor was not questioned, on either examination-in-chief
or cross-examination, about her knowledge about grievance time limits.
[22] She testified that in addition to speaking to the two OPSEU Representatives, that
“whenever a situation” arose a work, she would “speak to many people” who
advised her to speak to the Manager. There was no evidence that she did so. She
testified that nothing was done.
[23] She also acknowledged, on cross-examination, that during the period 2008 to
2013, she applied, deferred and reapplied for programs at Leeds. With each
application, she had to submit her undergraduate grades, a reference and an
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application. While at work, she was able to perform her job. She was able to attend
to her doctor appointments, physiotherapy and other medical appointments, and
tests.
Reasons for Decision
1. Are the claims of failure to accommodate an improper expansion of the
grievances?
[24] The jurisprudence is clear and the legal principles are well-established. In Re
OPSEU (Jones et al.) and Ministry of Labour, GSB No. 2006-1203, the Board
addressed the issue of when a claim may be viewed as part of a grievance or
raises a new issue. After citing Re Blouin Drywall Contractors Ltd. and United
Brotherhood of Carpenters and Joiners of America, Local 2486 (1975), 8 O.R. (2d)
103 (Ont. C.A.), and Re Electrohome Ltd. and I.B.E.W., Local 2345 (1984), 16
L.A.C. (3d) 78 (Rayner), the decision states, at par. 19:
Thus, in determining whether an issue raised by a party at arbitration is properly
before a board of arbitration, the board determines whether, on a liberal reading
of the grievance, the issue in dispute may be viewed as part of or inherent in the
original grievance or is essentially a new grievance. If the issue was part of or
inherent in the original grievance, the lack of precision in the written grievance
should not be a technical bar to a board of arbitration’s jurisdiction. Conversely,
if the matter is truly a different, new issue, the board will decline jurisdiction. In
Re Greater Sudbury Hydro Plus Inc. and CUPE, Local 4705 (Armstrong
Grievance) 2003, 12 L.A.C. (4th) 193 (Dissanayake), Arbitrator Dissanayake
determined that “[t]o 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.”
[25] This analysis has been followed in other GSB decisions, cited by the Employer. In
Re OPSEU (Labanowicz) and Ministry of Transportation, GSB No. 2012-3224 et
al., Arbitrator Michael Lynk determined, at pars. 19-20, that while grievances were
to be “liberally construed” and that the “wording of grievances should not be read
in a sterile and legalistic fashion”, “even the most generous application has a
natural boundary.” He stated, at par. 20, that “[a] party is not permitted to substitute,
or tack on, a substantively different grievance to the matter(s) in dispute identified
in the original grievance.” He then quoted Arbitrator Burkett in Re Fanshawe
College and OPSEU, Local 110 (2001), 113 L.A.C. (4th) 328, at 336:
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The Union is not permitted at a later date, just prior to arbitration to completely
change horses midstream and raise issues not contemplated by the grievance
which are not consistent with the language of the grievance, which cannot
reasonably be included in the grievance and with the language of the collective
agreement wand which are entirely separate and distinct form the subject of the
original grievance.
[26] Arbitrator Lynk also provided guidance on what should be considered by an
arbitrator in assessing whether a claim forms part of a grievance, at par. 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.
[27] The same standards were applied in Re OPSEU (Lunan) and Ministry of Labour,
GSB No. 2013-0513 (Leighton) as well as Re OPSEU (Brown-Bryce et al.) and
Ministry of Community Safety and Correctional Services, GSB No. 2014-1158
(Dissanayake).
[28] The Union does not dispute these legal principles. Instead, it argues that the
Grievor’s claims about the Employer’s failure to extend her LWOP requests, and
then its determination that the Grievor abandoned her position cannot be
understood without evidence concerning the parties’ history and the Employer’s
repeated failure to accommodate the Grievor’s disability. The Union submits that
the Employer’s failure to accommodate her exacerbated her medical condition,
leading to her inability to work, and the situation that she found herself in in 2013,
when she decided to seek her LLB in Leeds. It submits that the Employer’s
discrimination factored into its unreasonable decision not to extend her LWOP and
its conclusion that she had abandoned her job. To fully understand her grievances,
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the Union submits, the context of her employment history has to be considered
and adduced in the evidence. The Union submits that the grievances include
references to Article 3 and the Ontario Human Rights Code, and include the
Employer’s failure to accommodate the Grievor.
[29] Applying the principles articulated in the jurisprudence to the specific facts of this
case, I am persuaded that the disputed particulars concerning the Employer’s
failure to accommodate the Grievor from 2008 to 2012 cannot reasonably be
considered to form part of the grievances, and constitute an improper expansion
of the grievance.
[30] Even under a liberal interpretation and reading of the three grievances, the alleged
failure to accommodate the Grievor, as set out in the particulars from paragraphs
1-20, cannot be viewed as part of or inherent in the original grievances. I cannot
conclude that the Employer reasonably should have understood, upon reading the
three grievances, that the Employer’s actions in regard to accommodation from
2008 to early 2012 were part of those grievances.
[31] The April 22, 2014 and May 5, 2014 grievances are very similarly worded. The
first contests the Employer’s denial of “my leave of absence contrary to my rights
under Article 24 of the CA…” The second contests the Employer “denial [of] my
leave of absence without pay for medical reasons contrary to Article 24 …and 44
of the Collective Agreement…” Both also state: “Furthermore, the employer’s
egregious and discriminating decision contravenes Article 3 of the CA and the
Ontario Human Rights Code…” These two grievances clearly contest the
Employer’s “decision” to deny the Grievor’s request to continue her leave of
absence. Article 24 refers to “Leave Without Pay”. Article 44 refers to “Short Term
Sick Pay.” Neither grievance, on its face or liberally construed, includes any issue
concerning the Employer’s earlier actions in relation to accommodation while she
worked for the Ministry.
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[32] The third grievance asserts that the Employer “unilaterally, unjustly, arbitrarily and
without cause declar[ed] that I abandoned my position” which allegedly violated
her rights under Articles 2 (Management Rights), 3 (No
Discrimination/Employment Equity), 20 (Employment Stability), 21 (Discipline and
Dismissal), 24 (Leave without Pay), 53 (Termination Payments), and 70 (Long
Term Income Protection). The remedy requested in all three grievances is that the
Employer be ordered to grant the “leave of absence without delay…”
[33] There is no claim regarding a failure to accommodate, or that the Employer
engaged in a “pattern and practice” of discrimination. The absence of such a claim,
in these grievances, stands in contrast to the situation in Re OPSEU (Lunan),
supra. In that case, the Employer argued that the Union had expanded the scope
of the grievance through its particulars, by claiming that there had been a history
of discrimination and harassment against the grievor going back many years prior
to the first grievance. There were seven grievances, all of which claimed a violation
of Article 3, No Discrimination/Employment Equity, among other articles, policies
and statutes. The first grievance stated: “By not addressing the discriminatory/
harassing behaviour, management allowed discrimination/harassment to be
practiced against me….” A number of the subsequent grievances made similar
claims. In the Board’s view, at par. 6, it was “satisfied that the particulars of
incidents of alleged harassment and discrimination do not raise a new issue. The
Employer should have understood from the first grievance that allegations of
harassment and discrimination were issues in the case.” There are no similar
claims in the grievances here, and there is no basis to conclude that the Employer
should have understood from the grievances that allegations concerning a failure
to accommodate the Grievor were issues in the case.
[34] The absence of a claim that there was a pattern of discrimination also distinguishes
this case from a case cited by the Union, Re OPSEU (Patterson) and Ministry of
Public Safety and Security, GSB No. 2001-0925 (Leighton, Dec. 1, 2003). That
case involved the scope of the evidence that may be presented in a “pattern and
practice” case involving discrimination and sexual harassment. The grievance was
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filed on July 3, 2001, and the Board had “no difficulty” in deciding that the
“allegations relating back to 1987 through to 1996 are simply too old” to litigate. In
terms of the period between 1996 and 2000, she permitted the Union to adduce
evidence for a period of three years prior to the grievance being filed. This
represented a balance between the Employer’s and Union respective interests and
recognized the “union’s need to present evidence to support a pattern of
discrimination.” As there is no allegation here of a pattern and practice of
discrimination raised in the grievance, there is no basis to permit evidence of
allegations that were not grieved.
[35] The other case cited by the Union is Re George Brown College of Applied Arts and
Technology and OPSEU, unreported decision of Arbitrator Bendel, Feb. 23, 2016.
That case relies on the rule of audi alteram partem, to decline to limit the scope of
the evidence. This decision appears to be inconsistent with the Board’s three-year
guideline, as set out in Re OPSEU (Patterson).
[36] I find the instant case to be closer to Re OPSEU (Labanowicz), supra. In that case,
the grievance concerned the employer’s failure to offer the grievor an appropriate
redeployment position, or an accommodated position, after she had been given a
surplus notice in April 2012. The Union belatedly sought to argue that the grievor
had also been given a verbal commitment by her supervisors on two occasions in
2010 and 2011 that she would be placed in an alternate position. The Employer
argued that was a new issue that did not fall within the language of the grievance
or any reasonable reading of the documents, and was not raised in the grievance
process.
[37] The arbitrator found, at par. 23, that the alleged verbal commitments to be a new
issue, “fundamentally different from the grievance filed” even reading the grievance
on “the requisite broad and liberal fashion.” He determined, at par. 24, that the new
claim “clearly belongs to a separate and distinct time period that arose before the
period of time specifically referred to in the grievance.”
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[38] The arbitrator also “carefully considered the Union’s argument that the underlying
thrust of the grievances goes to [the Grievor’s] quest for job security and her desire
to maintain her employment within the OPS” and therefore was “sufficiently
connected in purpose and remedial outcome to the September 2012 grievances
such that it can be safely folded into these grievances, and litigated in these
hearings…” The arbitrator held, at par. 26, that although the Union’s argument
“has an initial appeal, …the facts ultimately point us to a different conclusion than
the Union has urged.” Although both arguments could fit under the “broad rubric of
job security”, he found that they were directed at different time periods and the
alleged verbal commitments could not be considered part of her grievance.
[39] In this case, the particulars concern the Employer’s alleged actions in regard to the
Grievor’s accommodation while she worked as a Courtroom Clerk Registrar, which
significantly preceded her grievances concerning the LWOP and alleged
abandonment of her position.
[40] The Union argues, however, that to understand fully her claim of discrimination in
regard to those matters, the history concerning the Employer’s alleged failure to
accommodate her must be considered, and that the Union raised Article 3 and the
Ontario Human Rights Code in each of the grievances.
[41] Although the three grievances allege a violation of Article 3 and the Ontario Human
Rights Code, those claims relate to the decision to deny her request for a further
leave of absence without pay, and to the Employer’s determination that the Grievor
abandoned her position. The reference to Article 3 and the Ontario Human Rights
Code cannot, solely by its inclusion in the grievance, enable the Grievor to assert
new issues into the grievance. There is no evidence that any of the
accommodation issues identified in the particulars was raised during the grievance
process, or were raised prior to the arbitration and the Union’s provision of
particulars. As in Re OPSEU (Labanowicz), supra, I conclude that while the
Union’s argument has an initial appeal, the facts point to a different conclusion.
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[42] I also do not agree that precluding the Union from raising the specific allegations
concerning the Grievor’s accommodation from 2008 to 2012, when she went off
work on sick leave, undermines her ability to pursue her grievance contesting the
Employer’s decision to deny her requests for a further leave of absence – whether
to complete her semester for the LLB, or for medical reasons – or the alleged
abandonment grievance.
[43] Accordingly, I am persuaded that the particulars concerning the Grievor’s
accommodation – paragraphs 1-20, 22, the second sentence of paragraph 23, and
conclusions 41 to 43 are an improper expansion of the grievances before the
Board, and may not be pursued in this proceeding as the Board lacks jurisdiction
over those claims.
2. The Timeliness Issue
[44] The Employer also argues that the allegations concerning the Grievor’s
accommodation, as well as her claim that the Employer improperly denied her
request for an extension of her LWOP to pursue her LLB are out of time.
a. Particulars regarding Accommodation.
[45] This issue only needs to be addressed if I am wrong that the particulars raise new
issues not reasonably encompassed in the original three grievances. If so, I
nonetheless determine that they are out of time.
[46] The grievance procedure in the parties’ collective agreement establishes that “the
intent of this Agreement [is] to adjust as quickly as possible any complaints or
differences between the parties arising from the interpretation, application,
administration or alleged contravention of this Agreement…” It sets a thirty (30)
day time limit “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”
for an employee to file a grievance, in writing. These two provisions clearly
demonstrate a mutual intent by the parties to address issues that arise in the
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workplace quickly. As stated by the Board in Re OPSEU (Berday) and Ministry of
Transportation, GSB No. 2007-3132 (Devins), at par. 15: “Effective labour relations
should encourage employees to raise their concerns as soon as practicable and
seek the assistance of their Union at the earliest opportunity.” The arbitrator
continued at par. 28:
The timely resolution of grievances serves a number of valuable labour relations
objectives. Included among them is the desire to ensure that aggrieved
individuals are restored to their entitlements as quickly as possible and to permit
management to conduct its business in an orderly manner. Knowing what
grievances are outstanding then having the opportunity to resolve them with a
minimum of spill over in the workplace is central to this premise. …
[47] The disputed particulars here concern incidents and actions that took place in
2008, 2009, 2010 and 2011 – years before the first grievance was filed on April 22,
2014. The GSB has held that a delay of months is “significant.” Re OPSEU (Ng)
and Ministry of Government Services, GSB No. 2009-3379 (Mikus)(2, 4 and 6
months); Re OPSEU (Berday), supra (8 months); Re OPSEU (Kavanaugh) and
Ministry of Community and Social Services, GSB No. 2007-0136 (Harris)(over 2
months); Re OPSEU (Smith) and Ministry of Community and Social Services, GSB
No. 2006-2107(Gray)(3 months). The multi-year delay in raising the issues
outlined in the particulars can only be characterized as “extreme” or “extraordinarily
long”. Re OPSEU (Liantzakis) and Ministry of Community Safety and Correctional
Services, GSB No. 2012-3997 et al. (Tims), at par. 68
[48] That conclusion, however, does not end the inquiry. Under Section 48(16) of the
Labour Relations Act, which is incorporated in the Crown Employees’ Collective
Bargaining Act, an arbitrator has the equitable discretion to relieve against the strict
application of the time limits set out in a collective agreement. Section 48(16)
provides as follows:
Except where a collective agreement states that this subsection does not apply,
an arbitrator or arbitration board may extend the time for the taking of any step
in the grievance procedure under a collective agreement, despite the expiration
of the time, where the arbitrator or arbitration board is satisfied that there are
reasonable grounds for that extension and that the opposite party will not be
substantially prejudiced by the extension.
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[49] The jurisprudence interpreting this provision is well-settled. As set out in Re
OPSEU (Smith), supra at par. 14, the relevant factors are set out in Re Becker Milk
Co. Ltd. and Teamsters Union, Local 647 (1978), 19 L.A.C. (2d) 217 (Burkett) as
follows:
(i) the reason for the delay given by the offending party;
(ii) the length of the delay;
(iii) the nature of the grievance.
[50] This list was later expanded by Arbitrator Schiff in Re Greater Niagara General
Hospital and ONA (1981), 1 L.A.C. (3d) 1, as follows:
1. The nature of the grievance
2. Whether the delay occurred in initially launching the grievance or at
some later stage.
3. Whether the grievor was responsible for the delay.
4. The reasons for the delay.
5. The length of the delay.
6. Whether the employer could reasonably have assumed the grievance
had been abandoned.
[51] Consideration must also be given to the issue of prejudice to the opposite party,
caused by the delay.
[52] Here, no evidence was presented that any of the issues raised in the particulars
were ever grieved or discussed with management. In her testimony on
examination-in-chief, the Grievor explained that she did not file a grievance earlier
because she was “medically overwhelmed” in early 2012, when she went off sick,
as well as in the summer of 2010, when she had her first relapse. Accepting that
contention, there was no evidence of her inability to file a grievance in 2008, 2009
or after her return to work in 2010, or 2011. She was able to attend work and handle
the job of Courtroom Clerk Registrar, which is a demanding position. She was able
to attend her physical therapy and other medical appointments. Significantly, as
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set out in particular #19, “[t]he Grievor documented the failure to accommodate on
the electronic reporting system.” Clearly, if she was able to do that, she was able
to file a grievance.
[53] In Re OPSEU (Kavanaugh), supra, the Board did not accept the Union’s assertion
that the Grievor was unable to file a timely grievance even though it was
undisputed that he attended the hospital on December 10 – the day before the 30-
day time limit expired - and had “major surgery” in January and was recuperating
until he was able to meet with the Union in early February and file the grievance
on February 26. The Board stated at par. 13 that although he attended the Hospital
on December 10 and had surgery in January, “ [t]here is no evidence that he was
or was not hospitalized in the interim”, and although he had “major surgery” there
was “no indication as to its effect upon his ability to file a grievance prior to
February 26, 2007.”
[54] Here, I find there is no evidence to conclude that the Grievor was unable to file a
grievance concerning the allegations contained in her particulars at a much earlier
point in time.
[55] There was no evidence, either way, about the Grievor’s knowledge concerning
grievance time limits. She was not asked about this either on examination-in-chief,
or cross-examination. Nevertheless, she was aware of time limits in regard to her
lawsuit in the slip and fall injury. She testified that her lawyer in that case called
her just before the statute of limitations was about to expire, explaining that she
had five days left in which to file a claim. It is reasonable to conclude that she
would be aware that grievances also have time limits, even if she did not know that
there was a 30-day time limit. On the evidence presented, she never tried to raise
these issues with management until they were raised in the particulars in this
arbitration.
[56] The evidence also establishes that the Grievor did talk to the Union, on several
occasions, prior to April 2014. In those conversations, she explained the whole
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history of her situation with the Ministry, but no grievances were filed until the denial
of her request to extend her LWOP. She testified that one of the Union
Representatives thought her situation was “awful” but he “did not advise [her] to
file a grievance.”
[57] The Grievor also testified that she talked to “many people” in the workplace about
what was occurring and they advised her to speak to the Manager. It is not clear
who these “many people” were, or whether they were connected to the Union or
not. Nor is there any evidence that she followed their advice to talk to the Manager.
[58] Consequently, on the facts presented, I am not persuaded that there was a
reasonable explanation for the Grievor’s delay in raising her accommodation
issues. The delay occurred at the start of the grievance process, so the Employer
was unaware that accommodation issues might be challenged. I also find that the
delay was extreme – from three to six years. Although the nature of the issues –
her accommodation and alleged discrimination due to disability – is very important,
it does not overcome the extreme delay that occurred here, or the lack of a
reasonable explanation for that delay.
[59] In addition, given the passage of so many years, the Board has held, albeit in dicta,
that prejudice to the responding party may be presumed. Re OPSEU (Liantzakis),
supra at par. 77. As a result, I am not persuaded that this is a situation in which I
should exercise my equitable authority to extend the time limits of the collective
agreement.
b. The April 22, 2014 and May 5, 2014 Grievances
[60] The Employer asserts that these grievances are also untimely. It submits that
because the Grievor learned on December 27, 2013 that the Employer would not
be extending her leave of absence beyond April 6, 2014, her thirty day period to
submit a grievance started then.
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[61] The particulars show that the Grievor, despite that advisement, continued to ask
for additional extensions of the LWOP – on March 15 and April 3, and engaged in
an “email exchange” with her manager about her leave of absence. The particulars
state that “[o]n April 4, 2013 this request was denied as she was deemed fit to
return to work by Manulife. The Grievor was directed to return to work on April 14,
2014.” The grievance was filed on April 22, 2016, and a second one on May 4,
2014.
[62] Under these circumstances, it is not clear that the “final” word on the LWOP
extension was made on December 27, 2013. It appears that the Grievor was still
trying to get management to reach a different decision. It appears, therefore, that
the triggering event could be construed to be April 4, when the Grievor was directed
to return to work by April 14, 2014. Accordingly, the April 22, 2014 and May 5,
2014 grievances were timely filed.
Conclusions
1. The Employer’s motion to dismiss Particulars 1-20, 22, the second sentence of 23,
and conclusions 41-43 is granted. These particulars raise new issues that
improperly expand the scope of the grievances before the Board, and the Board
has no jurisdiction to hear those claims.
2. If I am wrong about that, the allegations concerning the Employer’s failure to
accommodate the Grievor in 2008, 2009, 2010 and 2011 are untimely, and there
is no basis to exercise my discretion to waive the time limits under Section 48(16)
of the Ontario Labour Relations Act.
3. The April 22, 2014 and May 4, 2014 grievances were timely filed.
[63] This matter will continue on the dates previously scheduled for the hearing.
Dated at Toronto, Ontario this 20th day of February 2018.
“Randi H. Abramsky”
_______________________
Randi H. Abramsky, Arbitrator