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HomeMy WebLinkAbout2007-0136.Kavanaugh.09-04-14 Decision Commission de Commission de Crown Employeess Grievance Settlement Grievance Settlement règlement des griefs règlement des griefs Board Board des employés de la des employés de la CouronneCouronne Suite 600 Suite 600 Bureau 600 Bureau 600 180 Dundas St. West 180 Dundas St. West 180, rue Dundas Ouest 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Tél. : (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Fax (416) 326-1396 Téléc. : (416) 326-1396 Téléc. : (416) 326-1396 GSB#2007-0136, 2007-2649 GSB#2007-0136, 2007-2649 2007-0542-0001, 2007-0580-0002 2007-0542-0001, 2007-0580-0002 UNION#UNION# IN THE MATTER OF AN ARBITRATION IN THE MATTER OF AN ARBITRATION UUnnddeerr THE CROWN EMPLOYEES COLLECTHE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT TIVE BARGAINING ACT BBeeffoorree THE GRIEVANCE SETTLEMENT BOARD THE GRIEVANCE SETTLEMENT BOARD BETWEENBETWEEN Ontario Public Service Employees Union èÏÔÎÏ (Kavanaugh) - and - The Crown in Right of Ontario (Ministry of Community and Social Services) Employer BEFOREDaniel Harris Vice-Chair FOR THE UNIONMr. John Brewin Counsel Ryder Wright Blair & Holmes LLP FOR THE EMPLOYERMr. Felix Lau Counsel Ministry of Government Services HEARING April 8, 2009. DECISION [1]Two grievances have been filed on behalf of Brendan Kavanaugh. They are dated February 26, 2007 and April 23, 2007. This decision deals with the Ministry?s preliminary objection that the first grievance is untimely. [2]The Union provided the Ministry with a Statement of Particulars dated March 24, 2009. Those particulars set out that the event that triggered the first grievance was a letter dated October 26, 2006, which the Employer sent to the grievor by registered mail. That letter requested medical documentation for the grievor?s absence due to illness. The Union concedes that on its face the grievance was filed more than thirty days after the ?triggering event?. That time-line is imposed by article 22.2.1: 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. [3]The hearing proceeded by way of the Union articulating the facts upon which it relied to extend the time for the filing of the grievance. Central to the Union?s submissions were the facts relating to the grievor?s emergency hospitalization, surgery and recovery in December 2006 and into the New Year. [4]By its initial calculation, the Union submitted that the 30 day time limit would start no th earlier than October 27, given that the letter had been mailed. Accordingly, the 30 days would - 2 - have expired on December 7, 2006. At the time that the grievor should be taken to have received the letter, he was off work waiting to be returned to work in accordance with the terms of an Order of the Board made by Vice Chair Fisher on May 2, 2006. That Order reads as follows: 1.Effective April 27, 2005, the Grievor shall be placed on a paid leave of absence, without loss of benefits or seniority, until such time as the Employer complies with paragraph 1 of the Memorandum of Settlement. 2.The Employer shall advise the Grievor and the Union of the position in which he is being placed by means of a fax to the Union (c/o Mark Barclay) and by courier and by e-mail to the Grievor at the addresses provided to the Employer by the Grievor at the hearing. 3.The notice required in paragraph 2 of this Award shall be given on three (3) clear calendar days? notice, not counting the day of service or the day that the Grievor is expected to attend at work. 4.If, during the period of time that the Grievor is on paid leave of absence pursuant to this Award, there is a strike or lockout, then the paid leave of absence will be suspe3nded for the duration of the strike or lockout. 5.I continue to retain jurisdiction with respect to any dispute arising from the administration, implementation or enforcement of both the original Memorandum of Settlement and this Award. [5]The Union submitted that the grievor returned to work on November 27, 2006 and booked off sick in or around December 1, 2006 due to an emergency medical issue. Accordingly, the grievor was in no position to file the grievance within the 30-day period, which, as is set out above, it initially said expired December 7, 2006. It said the grievance was filed as soon as the grievor had sufficiently recovered to meet with the Union. [6]The Employer disagreed with the Union?s sequencing of events. It said that the grievor was scheduled to return to work on November 27, 2006. However, his request for three days vacation was granted and he did not physically attend at work until Friday, December 1, 2006. - 3 - He worked the next full week. His last day of work was December 8, 2006. He booked off sick effective December 11, 2006, due to his emergency medical situation. [7]Given the disparity, the parties were provided with an opportunity to consult with respect to the timing of events. The grievor reconsidered his employment and medical history over that period and acceded to the Employer?s record of attendance. On that basis, the Union then said that the 30 days would run to December 11, 2006, at which point the grievor was unable to file his grievance due to illness. [8]The Employer submitted that an entirely different framework is appropriate. It says that th the clock began to run on or about October 27, with the implied receipt of the letter. The 30 day period was said to have come to a halt with the delivery of the following letter by the Union, dated November 2, 2006: Dear Mr. Trimble: Re:Brendan Kavanaugh ? Implementation of MOA (GSB#2003-0576 & 2003-0904) It has been brought to the Union?s attention that Mr. Kavanaugh?s former manager is communicating directly with him regarding participating in a pre-placement process before he can return to work. It is the Union?s position that Mr. Kavanaugh should not be involved in such a process and that any discussions prior to his assignment should occur directly with me. Ms. Gannon?s letter (attached) makes reference to accommodation of medical needs. We can discuss this matter when we speak. To this end kindly contact at your earliest convenience to discuss the available placements for Mr. Kavanaugh and the timing of his return to work. Yours truly, Mark Barclay Grievance Officer - 4 - [9]In essence, the Employer says that this letter constituted the step one meeting, triggering the time considerations inherent in reaching stage 2. On that basis, the grievance should have been filed by November 28, noting that November 13 was a holiday. [10]That submission cannot be correct for a number of reasons. First, Mr. Barclay?s letter is clearly directed at the implications of the Employer?s letter of October 26, 2006 for the prior proceedings. He is, in essence, advising Mr. Trimble that the grievor?s return to work is the subject of a Board Order. Further, he specifically defers any consideration of the subject matter of the employer?s letter. In these circumstances this letter cannot be taken to end stage one of the grievance. [11]In my view, the 30-day period set out in the collective agreement within which the grievor is afforded an opportunity to discuss his complaint about the letter expired no earlier than December 11, 2006. It is not contested that on that day he was off work due to an emergency medical situation. [12]That of course does not end the enquiry.The grievance was not filed until February 26, 2007. Seemingly, the grievor met at that time with the Union and the grievance was promptly filed. It is incumbent upon the Union and the grievor to establish that there are reasonable grounds to extend the time for filing the grievance. It has been submitted to the Board that on Sunday, December 10, 2006 the grievor became very ill and was taken to Sunnybrook Health Sciences Centre. He remained off work until March 17, 2007. Included in the diagnosis was a recommendation for surgery. ?Major surgery? did take place in January. In February the grievor was well enough to meet with the Union, which resulted in the filing of the grievance. - 5 - [13]I am not satisfied on the foregoing scant facts, as submitted, that the grievor has established that there are reasonable grounds to extend the time for filing the grievance. These facts were put in on consent. Accepting these submissions as made, there is insufficient evidence to establish that it is more likely than not that the grievor?s medical condition and/or treatment had any impact on his ability to file a grievance. He attended at the Hospital on December 10 and had surgery sometime in January. There is no evidence that he was or was not hospitalized in the interim. Although the Union submitted that the grievor had ?major surgery?, there is no indication as to its effect upon his ability to file a grievance prior to February 26, 2007. This evidentiary gap exists in the context of the grievor?s initial vagueness as to the date of the onset of these purportedly debilitating symptoms. The context also includes his presumed knowledge that Mr. Barclay had raised the Employer?s October letter in his own letter of November 2, 2006. The grievor having been copied on the letter and not having disavowed knowledge of the letter, it is more likely than not that he knew these matters had been raised. The overarching context is that the grievor holds himself out as having been a knowledgeable union official. Vice Chair Fisher?s Order is part of two grievances filed by the grievor. The Union?s particulars read as follows at paragraphs 2 and 3: 1.The Grievor has been very active in the Union, becoming a steward in June, 2000. He represented employees on a number of grievances, was a member of the Local Employee Relations Committee (LERC) and the Health and Safety committee, appointed by the Union. 2.On March 1, 2003 the Grievor filed a grievance alleging discrimination against him arising from anti-union animus and harassment in breach of Article 9. A similar grievance was filed on May 3, 2003. - 6 - [14]The grievor must be taken to have known the importance of complying with the time- lines in the collective agreement for filing grievances and the potentially fatal consequences for failing to meet them. In spite of that, he gave no adequate explanation for failing to meet those time-lines, other than vague and inconsistent information about his medical treatment over a 2 ½ month period. [15]The delay here was more than two months, which is significant. The length of the delay is to be considered against the nature of the grievance. Here the allegation is that the Employer?s letter of October 26, 2006 discriminated against him. The letter reads as follows: Dear Brendan, It is the Ministry?s policy to support employees whose injury, illness or disability is affecting their ability to do their job and to meet job-related requirements, I have been informed that you are currently not feeling well and as such you have not been able to come in for the meeting that the Toronto Region, MCSS attempted to schedule regarding a position at that office. As we are not in possession of any medical documentation regarding any health limitations and prognosis, and in order to develop a return to work plan, we require a completed Request for Employee Health Information Form. Please provide a copy of this letter to your doctor. The completed form is required by November 13, 2006.Any charges for providing this information Should be invoiced to my attention. Thank you in advance for your cooperation. Shirley Gannon, CGA Controller [16]As a result of Mr. Barclay?s prompt intervention of November 2, 2006 the request for the medical documentation was withdrawn. Nonetheless, four months after the Employer?s - 7 - letter, the grievor filed his grievance saying the letter was discriminatory and claiming the following relief: 1.That I be put on leave of absence with no loss of pay, seniority, pension, benefits and any other article that is part of my entitlement of employment until such time that I reach age 65. 2.That punitive damages be paid for the stress, loss of career opportunities, loss of potential income, loss of freedom and unequal treatment due to involvement and participation as a Union Steward. 3.That I be given the pay rate of Financial Officer 1 and that retroactive pay be given from the start date of staff hired from the competition held in the Spring of 2002 at the Family Responsibility Office. This is to be in conjunction with Part 1. [17]In my view, the seriousness of the grievance is another reason not to exercise my discretion to extend the time for its filing. [18]Finally, in the course of the parties? submissions, a factual issue arose with respect to whether the Step 1 and Step 2 meetings had been waived and any legal effect of such purported waiver. Seemingly, when the grievance was eventually filed, the parties agreed that it would be progressed without formal Step 1 and Step 2 meetings. The Union suggested, without providing any authorities on the point, that such an action should imply that the Employer had waived its right to raise this timeliness complaint. In my view the course of action here would not amount to the type of fresh step that could carry such consequences. - 8 - Decision [19]In all of the circumstances the discrimination grievance of Brendan Kavanaugh is dismissed on the basis of timeliness. Dated at Toronto this 14th day of April 2009. Daniel Harris, Vice Chair