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HomeMy WebLinkAbout2006-2093.Faulkner.08-09-23 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2006-2093 UNION#2006-0229-0013 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Faulkner) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREVice-Chair Ken Petryshen FOR THE UNIONKirsten Agrell Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYERSuneel Bahal Counsel Ministry of Government Services HEARINGApril 28, 2008. 2 Decision In a ruling dated June 25, 2008, I concluded that a grievance filed by Ms. C. Faulkner, a Correctional Officer (?CO?), was untimely and that there were no reasonable grounds to extend the time for filing her grievance. I dismissed the grievance and indicated that reasons for the decision would follow. This decision contains the reasons for dismissing the grievance. In a grievance dated March 28, 2006, CO Faulkner alleged that the Employer failed to accommodate her by not permitting her to start work at the Ontario Correctional Institute (?OCI?) on May 16, 2005, at the completion of her training at the Bell Cairn Staff Development Centre (?Bell Cairn?). CO Faulkner requested an accommodation because she had sustained an ankle injury. The Union asserts that the Employer?s failure to provide her with modified duties, given her temporary disability, constitutes a contravention of the Collective Agreement. The Employer took the position that CO Faulkner?s grievance was untimely. The parties did not call any witnesses, agreeing that the following facts were relevant to the timeliness issue. Before the end of her training at Bell Cairn, CO Faulkner injured her ankle at home and was required to wear an air cast. At the completion of her training, the Employer advised CO Faulkner by letter dated May 13, 2005, that she would be appointed to the unclassified staff of the OCI, effective May 16, 2005. Among other things, the letter also informed her that her position was in the bargaining unit and provided her with the name and phone number of the Union. On or about May 13, 2005, CO Faulkner contacted OCI and spoke with the Staff Services Manager, Ms. Saylor. There is a dispute about what precisely was said during their discussion. For the purposes of this preliminary issue, the parties agreed that CO Faulkner told Ms. Saylor that she was calling about starting work and she referred to her need to 3 wear the ankle cast. The parties agreed that CO Faulkner asked for modified duties, but was told that she could not start work wearing an ankle cast. The Union asserts that CO Faulkner was told that inmates would perceive her wearing an ankle cast as a sign of weakness. Ms. Saylor asked CO Faulkner to let her know when she was well enough to start at OCI. In early July of 2005, CO Faulkner advised Ms. Saylor that the problem with her ankle was resolved and that she was ready to start work. She commenced working at OCI on July 11, 2005, approximately two months after her designated appointment date. She had a three-week orientation period that included a brief introduction to a steward, who was working at the time. In March of 2006, approximately ten months after she was denied modified duties, a co- worker advised her that another employee was currently working at OCI while wearing an air cast and that this employee had been doing so for some time. The co-worker suggested to CO Faulkner that she could file a grievance because the Employer had refused to provide her with modified duties when she was wearing an air cast. CO Faulkner consulted a steward about this issue and the steward made inquires of the Employer. When the issue was not resolved in her favour, CO Faulkner filed her grievance. Up until that time, CO Faulkner was aware that some employees were accommodated due to their family status, but she was not aware of any employee being accommodated for medical reasons. The Employer took the position that the time for filing a grievance in this instance started to run when Ms. Saylor advised CO Faulkner on May 13, 2005 that the Employer would not provide her with modified duties. Counsel for the Employer noted that CO Faulkner filed her grievance more than ten months after this key date, which is well beyond the time set out in the 4 Collective Agreement for filing a grievance. The Employer also argued that there were no reasonable grounds for extending the time for filing the grievance. The Union took the position that there was no delay because the time for filing a grievance did not start to run in this instance until March of 2006, when CO Faulkner became aware that the Employer had accommodated another employee with an air cast. The Union also submitted that even if the time for filing a grievance started to run from May 13, 2005, it is appropriate to extend the time for the filing of the grievance. The relevant provisions of the grievance procedure are contained in Article 22 of the Collective Agreement. I was referred to the following clauses in that Article: 22.1It is the intent of this Agreement 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, including any question as to whether a matter is arbitrable. STAGE ONE 22.2.1It is the mutual desire of the parties that complaints of employees be adjusted as quickly as possible and it is understood that if an employee has a complaint, the employee shall meet, where practical, and discuss it with the employee?s immediate supervisor within thirty (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 in order to give the immediate supervisor an opportunity of adjusting the complaint. 22.2.2If any complaint or difference is not satisfactorily settled by the supervisor within seven (7) days of the discussion and/or meeting, it may be processed within an additional ten (10) days in the following manner: STAGE TWO 22.3.1If the complaint or difference is not resolved under Stage One, the employee may file a grievance, in writing, through the Union, with the senior human resources representative in the ministry or his or her designee. ? 5 22.14GENERAL 22.14.1 Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn. ? 22.14.3Time limits contained in Article 22 may be extended by agreement of the parties in writing. ? 22.14.6The GSB shall have no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreements. In his submissions, counsel for the Employer relied on the following decisions: Alexander, 2231/97 (Gray); Re Ontario Public Service Employees Union v. Ontario (Ontario Reality Corp.), [2001] O.G.S.B.A. No. 15 (Herlich); Re Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services), [2004] O.G.S.B.A. No. 185 (Leighton); Re Ontario Public Service Employees Union v. Ontario (Ministry of Northern Development and Mines), [2005] O.G.S.B.A. No. 42 (Mikus); and, Rondeau, 2171/97 (Leighton). Counsel for the Union referred me to the following decisions: Re Breakaway Satellite th Opiate Addiction Services and U.F.C.W., Locs. 175 & 633 (2004), 128 L.A.C. (4) 205 th (Carrier);Re Lakehead Motors Ltd. and I.A.M., Lodge 1120 (2002), 106 L.A.C. (4) 346 th (Baum); Re Metropolitan Licensing Commission and C.U.P.E., Loc. 79 (1995), 47 L.A.C. (4) th 182 (Springate); and, Re Donwood Institute and O.P.S.E.U., Loc. 541 (1997), 60 L.A.C. (4) 367 (Brandt). The first issue to decide is whether there was a delay in the filing of the grievance. The time for filing a grievance under the Collective Agreement begins to run when an employee knows or ought reasonably to have known about certain circumstances, 6 not when an employee recognizes or elects to make a claim based on those circumstances. The grievance alleges that the Employer failed to accommodate CO Faulkner?s temporary disability when it did not provide her with modified duties in May of 2005. In my view, the time for filing a grievance started to run on or about May 13, 2005, when Ms. Saylor advised CO Faulkner that the Employer would not accommodate her disability. The fact that CO Faulkner discovered many months later that the Employer was accommodating an employee with an air cast does not mean that it was then that her dispute arose about a failure to accommodate her own disability. By that time, she had been working for many months and the subsequent information only provided her and the Union with some evidence that the Employer might have been able to accommodate her in May of 2005. CO Faulkner knew in May of 2005 that the Employer would not provide her with modified duties so that she could start working at OCI on May 16, 2005. It was then that the circumstances of her dispute with the Employer arose, as well as when the time for the filing of a grievance began to run. Accordingly, there was a lengthy delay of approximately ten and a half months in the filing of the grievance dated March 28, 2006. The basis for exercising a discretion to extend the time limits in the Collective Agreement is set out in Article 48 of the Labour Relations Act. Subsection 16 of that provision provides as follows: 48(16) 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 the collective agreement, despite the expiration of the time, where the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension. The effect of this provision is that a time limit can be extended if the arbitrator is satisfied that there are reasonable grounds for the extension and that such an extension will not substantially prejudice the opposite party. Both conditions must be satisfied. 7 The arbitrators in Becker Milk Company and Teamsters Union, Local 647 (1978), 19 L.A.C. ndrd (2) 217 (Burkett) and Greater Niagara General Hospital and O.N.A. (1981), 1 L.A.C. (3) 1 (Schiff) have identified the relevant factors for consideration when determining whether to exercise the discretion to extend time limits. Arbitrator Burkett identified the following factors: 1.The reason for the delay given by the offending party. 2.The length of the delay. 3.The nature of the grievance. After identifying these factors, the arbitrator went on to state: If the offending party satisfies an arbitrator, notwithstanding the delay, that it acted with due diligence, then if there has been no prejudice the arbitrator should exercise his discretion in favour of extending the time limits. If, however, the offending party has been negligent or is otherwise to blame for the delay, either in whole or in part, the arbitrator must nevertheless consider the second and third factors referred to above in deciding if reasonable grounds exist for an extension of the time limits. Arbitrator Schiff referred the following factors: 1.The nature of the grievance. 2.Whether the delay occurred in launching the grievance or at a 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. Of course, the various factors are not considered in isolation. The extent of the delay and for the reason for it will be considered in light of the seriousness of the subject matter grieved. It is evident from the facts that in May of 2005 CO Faulkner accepted the Employer?s position that it could not offer her modified duties and that she could not start work at OCI until the issue with her ankle was resolved. 8 The thought of challenging the Employer?s position only arose when she learned many months later that the Employer was accommodating another employee who wore an air cast. There was no suggestion that Ms. Saylor misled CO Faulkner when they had their discussion in May of 2005. The delay here occurred in the launching of the grievance. Given the passage of many months, the Employer could reasonably have assumed that its decision not to provide CO Faulkner with modified duties was not going to be challenged. There is no indication that anyone other than CO Faulkner was responsible for the delay. Although the Union suggested that some consideration should be given to the fact that CO Faulkner was a new employee, all employees are presumed to be aware of their rights and obligations under the Collective Agreement. CO Faulkner could have consulted with the Union if she had any concerns about what Ms. Saylor had told her. The Union emphasized that the grievance raised a serious human rights issue since it concerned the accommodation of CO Faulkner?s disability. I agree with the Union that the nature of the grievance does favour extending the time limits. However, I am not convinced that the circumstances in this case are as weighty as the Union suggests. After all, we are dealing with a temporary disability that resulted in only a delay in CO Faulkner?s start date. There is no ongoing issue about the condition of her ankle and the wearing of an air cast. No substantive reason was provided to account for the delay in the filing of the grievance. As noted previously, rather than contest or raise an issue about the Employer?s decision not to provide her with modified duties in May of 2005, CO Faulkner simply accepted the Employer?s decision and the rationale for it. In doing so, CO Faulkner did not act with due diligence. 9 The length of the delay is considerable and militates against extending the time limits. The grievance was filed over ten months after Ms. Saylor advised CO Faulkner that she would not be provided with modified duties. By this time, CO Faulkner had been working at OCI for about eight months. Although the grievance does raise a significant issue, the other relevant factors compel the conclusion that reasonable grounds for the extension of the time limits are absent in this case. In my view, CO Faulkner cannot accept the Employer?s decision not to provide her with modified duties and over ten months later file a grievance when she becomes aware of circumstances which convince her that there might be some basis for contesting that decision. The delay is extreme here and such delay is not outweighed by the nature of the grievance. It is unnecessary to determine whether the Employer would be substantially prejudiced by an extension. It is for the foregoing reasons that I dismissed CO Faulkner?s grievance dated March 28, 2006. I determined that there was a significant delay in the filing of the grievance and that there were no reasonable grounds for extending the time for filing the grievance. rd Dated at Toronto, this 23 day of September, 2008. Ken Petryshen, Vice-Chair