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HomeMy WebLinkAbout2017-0471.Vangou.19-01-29 DecisionCrown 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# 2017-0471 UNION# 2015-0534-0023 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Vangou) Union - and - The Crown in Right of Ontario (Ministry of Children, Community and Social Services) Employer BEFORE Janice Johnston Arbitrator FOR THE UNION Jane Letton Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel HEARING January 23 and 25, 2019 -2- DECISION [1] The grievor in this case filed a grievance on December 18, 2015, claiming that: ...my Employer has continued to disparage me, my name, and has continued their discriminatory feelings and actions towards me, which they have transferred to staff and to each other, resulting in irreparable damage to my career, life and well-being. This is discrimination/harassment against me due to my illnesses, my union activity and that has been held against me and my sibling. [2] On June 19, 2014, the grievor had previously filed a grievance in which she claimed: I grieve that my rights were violated under the collective agreement Article 2 – unfair application of management rights, Article 3 – discrimination due to disability and family status, unfair treatment and bullying, Article 9 – health and safety and video display terminals, Article 44 – short term sickness plan, Article 46 – vacations and vacation credits, Occupational Health and Safety Act Sections 25. (i), 25. (i) (h), but not exclusive of any other articles, acts, statutes, principals, laws, policies, procedures or related legislation that may apply. [3] The grievor left the workplace on October 8, 2014, and has not returned to work since that date. She served a six-month qualifying period and has been on LTIP since April 8, 2015. The grievance before me was filed on December 18, 2015, more than a year after she left the workplace. [4] The first grievance filed by the grievor on June 19, 2014, was settled by Minutes of Settlement (“MOS”) signed on March 12, 2015. The MOS provide: GSB# 2014-2429 OPSEU# 2014-0534-0011 MEMORANDUM OF SETTLEMENT BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION (“Union”) AND EMMA VANGOU (“Grievor”) -3- AND THE CROWN IN RIGHT OF ONTARIO As represented by the Ministry of the Community and Social Services (“Employer”) WHEREAS the Grievor filed the above-noted grievance on June 19, 2014 alleging that she has been discriminated against and harassed in the workplace on the basis of disability and has alleged violations of Articles 2, 3, 9, 44, and 46; THEREFORE the Parties agree to the full and final settlement of the above- referenced grievance, without precedent and without prejudice to any other matter between the parties, on the following terms: 1. The Employer agrees to give the grievor a 5 month 29 day developmental assignment in an ODSP Caseworker position (Classification: Welfare Field Worker 2) in the Hamilton office upon her return to work, subject to the following conditions. If the Grievor is able to return to work by December 31, 2015, the developmental assignment will be available upon her return. If the Grievor returns to work after December 31, 2015, the Grievor will only be given the developmental assignment if there is the operational need to fill a Caseworker position in the Hamilton office at that time. The Employer will make this determination of operational need in good faith and without discrimination. The parties agree that following the developmental assignment, the Grievor will return to her home position if she has not secured another position elsewhere. 2. The Employer agrees that for the duration of the assignment referred to in paragraph 1, the Grievor will be placed at the highest step for the Welfare Field Worker 2 classification. 3. The parties agree that if and when the Grievor returns to her home position in the Family Responsibility Office, she will be returned to a new team. 4. The Employer agrees that if and when the Grievor returns to her home position in the Family Responsibility Office, she will be provided with training of up to a value of $1000. The parties agree that this training will be subject to the Employer’s approval based on the requirements of her performance plan and will not be unreasonably denied. 5. The parties agree that if and when the Grievor returns to her home position in the Family Responsibility Office, the Employer will facilitate, but cannot guarantee the participation in, a workplace restoration using an external facilitator between the Grievor and the individuals to be identified by the Grievance Officer and provided to counsel for the Employer within 5 days of signing this MOS. The list of individuals can be modified upon mutual agreement of the parties. The parties agree that this workplace restoration will take place within 2 months of the -4- Grievor’s return to work in her home position, subject to reasonable operational considerations. 6. The Employer confirms that managers within FRO completed their Ontario Human Rights Code related training (accommodation and discrimination/harassment) in 2014. 7. The Employer agrees that a memo will be issued within 30 days of the date of this MOS to all employees within Client Services Branch, a component of which will be a reference to appropriate behaviour with respect to the Ontario Human Rights Code and accommodation. 8. The Employer agrees to pay the Grievor $xxx in human rights damages, not subject to deduction. The Employer agrees to make best efforts to pay this amount within 60 days of the date of this MOS. 9. The Grievor agrees to indemnify and save the Employer harmless from and against all claims and demands under the Income Tax Act for and in respect of the withholding of tax on the amounts referred to in paragraph 7, and any interest or penalty relating thereto. 10. The Union and the Grievor agree that the above-noted grievance filed by the Union with respect to the Grievor is withdrawn. 11. The Parties agree that this settlement is not an admission or concession of liability or wrongdoing on the part of any of the Parties to this settlement. 12. This written Memorandum of Settlement represents the complete agreement between the Parties in relation to the above-noted grievance. The Parties agree and acknowledge that they have not made any verbal or other agreements beyond what is contained in this written Memorandum of Settlement. 13. The Parties agree to keep the terms of this settlement in the strictest confidence and agree not to disclose any of the terms and conditions of settlement, except as required by law or for the purposes of implementation of this settlement, and except to the Grievor’s immediate family, whom she will caution to maintain this strict confidentiality. 14. The Parties agree that they have discussed or otherwise canvassed any and all human rights complaints, concerns, or issues, arising out of the circumstances relating to the aforementioned grievances. The Parties agree that the Grievor is receiving consideration for settling and resolving any and all human rights complaints, concerns, or issues arising out of the grievances and the circumstances giving rise to the grievances, and the Grievor shall not have the right to make oral submissions to the Human Rights Tribunal of Ontario regarding circumstances relating in any way to the matters resolved in this Memorandum of Settlement. -5- 15. In consideration of the above paragraphs, the Grievor and the Union by executing this agreement release and forever discharge the Employer, and Employees, agents, officials and servants of the Employer, from all actions, causes of action, applications, claims, complaints, grievances and demands of every nature and kind, whether arising at common law, in equity, by statute or otherwise arising out of the grievances and the circumstances giving rise to the grievances, including but not limited to all claims arising under the Collective Agreement between the Union and the Employer, the Employer’s Workplace Discrimination and Harassment Policy, the Ontario Human Rights Code, the Occupational Health and Safety Act, the Public Service of Ontario Act, 2006, the Employment Standards Act, 2000 and the common law. 16. The Parties agree that Vice-Chair Carrier shall remain seized of any dispute between the Parties with respect to the interpretation and implementation of this settlement. Dated in Toronto this 12th day of March, 2015. ________________________________ Emma Vangou ________________________________ For the Union ________________________________ For the Employer [5] Counsel for the Ministry, by way of preliminary argument, asserts that the grievor in the proceeding before me ought not to be able to rely on any particulars or allegations that relate to events prior to the signing of the MOS on March 12, 2015. It was his submission that the MOS were intended to settle all matters that predate the grievance (June 19, 2014) as well as all matters, events, allegations that arose postdating the grievance and prior to the date that the MOS were signed (March 12, 2015). [6] In support of this position, he referred to the particulars filed by the union prior to the signing of the MOS and the specific terms of the MOS. [7] Paragraph 18 of the particulars filed by the union prior to the signing of the MOS addresses events that occurred after the grievance was filed. It reads: -6- The Grievor has been on medical leave of absence since October 2014. Despite the ongoing requirement that the manager update absences in WIN, the Grievor’s manager clearly has not properly done this, as the Grievor was first overpaid, then grossly underpaid (sometimes receiving less than 50% of her regular net income). This has continued to present. Additionally, the Employer failed to provide the Grievor with LTIP forms. Only after following up several times with the Employer has the Grievor now received the forms. It is anticipated that the Grievor’s physician will recommend LTIP. As this allegation was particularized and formed part of the matters relied on in support of the remedies sought in the grievance arbitration, when the matter was settled this post grievance allegation was also settled. This supports the view that the MOS were intended to settle all matters at issue prior to the signing of the MOS and that the parties turned their minds to post grievance facts when settling the grievance. [8] The relevant paragraphs in the MOS are paragraphs 1, 3, 5, 8, 10, 14 and 15. Paragraphs 1, 3 and 5 are remedies on a go forward basis and show that the parties turned their minds to a resolution that was intended to give the grievor a fresh start and address all concerns raised to that point in time. Paragraph 8 provided for a payment of human rights damages and the grievance was withdrawn pursuant to paragraph 10. [9] Paragraph 14 of the MOS provides in part that: ...The Parties agree that the Grievor is receiving consideration for settling and resolving any and all human rights complaints, concerns, or issues arising out of the grievances and the circumstances giving rise to the grievances ... Counsel for the Ministry argued that the two phrases “the circumstances giving rise to the grievances” and, secondly “arising out of the grievances” were intended to address and resolve events that predated the grievance as well as events between the period of the filing of the grievance and the signing of the MOS. The first phrase, “the circumstances giving rise to the grievances”, refers to the issues raised by the grievances and the second refers to events that postdate the grievance or are “arising out of the grievances”. -7- [10] A fundamental principle in collective agreement or other contract interpretation, in this case the MOS, is that words are to be given their plain or ordinary meaning. It is my role to give effect to the intentions of the parties based on the words they themselves have chosen. In doing so, I will assume that the parties chose to use the words or phrases that they did for a reason. I must determine what makes the most sense in all of the circumstances and what is a reasonable and logical interpretation. It is my job to interpret the MOS as written by the parties. In this case, two different phrases were used and I must assume that there was a reason for doing so. I agree with counsel that the intent was to settle all matters that had been raised prior to the signing of the MOS, both pre and post the filing of the grievance. [11] The same language is used by the parties in paragraph 15, which is a more general release and addresses issues other than those which could give rise to a complaint pursuant to the Human Rights Code. The same interpretation as set out above is therefore given to this language. [12] In support of his argument, counsel referred to Re OPSEU (Dale et al) and the Ministry of Health and Long-Term Care (March 11, 2002) GSB #0783/00, 1314/00, 0883/01 (Abramsky) and Re OPSEU (Kyba et al) and the Ministry of the Environment, Conservation and Parks (November 26, 2018) GSB #2016- 2013 (Dissanayake). I completely agree with those cases and the principles set out with regard to the critical importance and sanctity of settlements and their enforcement. [13] In the particulars filed by the union in support of the grievance before me, the union alleges generally that the conduct of the employer interfered with and delayed her application for LTIP. It is alleged that the employer “took deliberate steps to influence Manulife to deny her claim at the outset of their contact regarding the Grievor’s case” and that “the Employer took a hard line approach and influenced the insurance company to continue to deny the Grievor benefits. -8- This was done not based on medical documentation, which clearly supported the Grievor’s disability, but rather a stigmatized view of the Grievor’s illnesses.” [14] The collective agreement provides as follows: 22.9.1 An allegation that the Employer has not provided an insured benefit that has been contracted for in this Agreement shall be pursued as a Union grievance filed under Article 22.13 (Union Grievance). 22.9.2 Any other complaint or difference shall be referred to the Claims Review Subcommittee of Joint Insurance Benefits Review Committee (JIBRC), established under Appendix 4 (Joint Insurance Benefits Review Committee), for resolution. This language is very clear and includes the use of the word “shall”. It provides for an alternative process for the handling of LTIP claims by the claims review subcommittee of JIBRC. There was no dispute between the parties that JIBRC has exclusive jurisdiction over LTIP appeals. In addition, it was agreed that the GSB does not sit as some sort of appeal body over JIBRC decisions. [15] The grievor’s claim for LTIP was approved. This approval may have taken too long in the view of the grievor, but the process leading up to the approval is part of the JIBRC process and one over which I have no jurisdiction. In Re OPSEU (Dales) and the Ministry of Correctional Services (January 15, 2002) GSB #1280/00, 1420/00 (Mikus), Vice-Chair Mikus stated: The question being asked is whether Article 22.9 confers exclusive jurisdiction on JIBRC to deal with all questions concerning 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 Grievance Procedure itself. That signifies, in my opinion, that the parties put their minds to the processing of these unique 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 arise under this provision. They envisioned general complaints about the provision of benefits to the bargaining unit as a whole and decided that it would be the Union who would carry the burden of asserting and defending those claims. They also knew that individual complaints would arise about eligibility for benefits and decided that all of those other complaints would be dealt with by JIBRC. To further signify the parties’ view on the uniqueness of these claims, the parties set up, within JIBRC, a Claims Review Subcommittee to deal with the issue of individual entitlement. Finally, to further emphasise their intentions, the parties adopted language that would clearly show their intentions. They stated -9- that all general complaints shall be pursued as Union grievances 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 arising out of the provision of insured benefits to its members and that the alternative resolution process is mandatory. .... Finally is the important question of the application of Article 3 or the Ontario Human Rights Code to these grievances. There has been a clear allegation that the Employer’s actions in denying the grievor LTIP benefits or in refusing to pay the premiums on her LTIP benefits is contrary to both. It was said that these acts discriminate against the grievor 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 grievances and are more related to the merits of the grievances rather than the preliminary matter of jurisdiction. It seems to me that these issues are inextricably tied to the issue of eligibility. If the grievor was denied benefits because of the terms of the insurance plan negotiated by the parties, and there was a finding that was discrimination 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 significant 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 22.9. Allegations of such a serious nature cannot be constrained by the procedural limitations of the parties. On that basis I have concluded that I do have jurisdiction as a Vice-Chair of the Grievance Settlement Board to hear the grievances before me so far as they relate to allegations of an infringement of the grievor’s right to be free from discrimination on the basis of handicap. However, the JIBRC and the Claims Review Subcommittee have similar and concurrent jurisdiction to determine these issue during a hearing 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 discrimination in the provision and/or denial 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. [16] I agree with the conclusions reached by Vice-Chair Mikus and set out above. The grievor seeks to raise allegations of harassment and discrimination before me. Any issues that relate to and pertain to the process leading up to her application for LTIP are within the jurisdiction of the JBRIC and should have been dealt with in that process. It is not appropriate for me to reopen this process to address allegations that may have been raised and dealt with previously pursuant to the -10- alternative process provided by Article 22.9.1 and 22.9.2 of the collective agreement. [17] The employer has requested that I direct the grievor to provide a fully particularized will say statement detailing any matters that deal with allegations of conduct of the employer post March, 2015, that do not relate to the LTIP process. The use of will say statements has become increasingly more common in cases such as this one before me. I therefore direct the union to prepare a will say statement that shall constitute the evidence in chief of the grievor. This statement is to be fully particularized and include answers to “who, what, when and where” in terms of allegations of misconduct on the part of the employer. It is to be provided to counsel for the Ministry on or before February 15, 2019, which is three weeks prior to the next date of hearing scheduled in this case. [18] This matter will continue on March 7, 2019. Dated at Toronto, Ontario this 29th day of January, 2019. “Janice Johnston” ______________________ Janice Johnston, Arbitrator