HomeMy WebLinkAbout2019-2782.Overdevest.22-12-12 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
GSB# 2019-2782; 2020-1182
UNION# 2019-0221-0004; 2019-0221-0005
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Overdevest) Union
- and -
The Crown in Right of Ontario
(Ministry of Public and Business Service Delivery) Employer
BEFORE Ken Petryshen Arbitrator
FOR THE UNION Robert Healey
Ryder Wright Holmes Bryden Nam LLP
Counsel
FOR THE EMPLOYER Joohyung Lee
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING May 6, 2022 (Esther Song)
July 13, 2022 (Robert Healey)
-2-
DECISION
[1] This decision addresses one Union motion and three Employer motions in relation
to grievances filed by Ms. K. Overdevest. Since November of 2008, Ms.
Overdevest has worked full-time for the Employer as a Customer Service
Representative (“CSR2”) at its Simcoe office. The Union filed particulars in
relation to the grievances. There are 112 paragraphs of particulars in 21 pages
that cover a period of time from January of 2016 to April of 2020.
[2] The Union motion is a request to consolidate, or hear together, a grievance dated
April 15, 2020, with two of Ms. Overdevest’s earlier grievances. The first Employer
motion is a request to dismiss a grievance dated November 28, 2019, because the
referral of the grievance was untimely by almost five months. The second
Employer motion is a request to strike paragraphs 3 to 19 of the particulars
because they were relied on by the Union in relation to two grievances filed by Ms.
Overdevest in 2017 that were resolved by the parties by Minutes of Settlement
(“the MOS”) dated August 28, 2018. The third Employer motion is a request to
strike paragraph’s 52 to 72 of the particulars because of its contention that the
circumstances covered by the paragraphs do not fall within the scope of any of the
grievances and therefore amounts to an expansion of the grievances.
[3] Counsel argued the motions primarily with reference to the particulars and the
circumstances reflected in certain documents. Ms. Overdevest testified about the
late referral of the grievance dated November 28, 2019. Rather than set out the
extensive particulars in this decision, I will provide a summary of the
circumstances that were referenced by counsel only for the purpose of addressing
the four motions.
[4] Ms. Overdevest was injured in a car accident in January of 2016 and was involved
in another car accident in July of 2016. Since these accidents she suffers from
chronic neck, shoulder and hand pain, as well as migraines. The particulars
indicated that Ms. Overdevest was off work for some time and returned to work on
-3-
December 5, 2017. In mid-December 2017, an Occupational Therapist assessed
her workplace and determined that certain chairs she used were not appropriate.
Ms. Overdevest went off work on December 19, 2017.
[5] As noted previously, Ms. Overdevest filed two grievances in 2017 that were settled
by the parties. One of them was a grievance dated November 28, 2017, alleging
that the Employer had failed to accommodate her disability. The other grievance
was dated December 20, 2017, and alleged that the Employer engaged in
discrimination and harassment as a result of her disability. It is these two
grievances that were settled by the MOS dated August 28, 2018.
[6] Ms. Overdevest returned to work on July 30, 2018. In August of 2018, the
Employer arranged for an ergonomist to assess an appropriate chair for Ms.
Overdevest. The ergonomist determined that Ms. Overdevest required a proper
chair. Paragraphs 26 to 30 and 34 to 44 of the particulars detail matters related to
finding a proper chair. Paragraphs 32 and 33 refer to circumstances of alleged
Employer criticism and harassment targeted at Ms. Overdevest.
[7] On July 10, 2019, Ms. Overdevest selected a chair to sit on at the counter. The
chair suddenly broke in half and she fell to the floor. Paragraph 48 of the
particulars notes that she “suffered serious injuries and was off work for about 3
months. This incident aggravated all of Ms. Overdevest’s neck and shoulder
issues from her car accidents, increased the frequency of her migraines, and
exacerbated her depression and anxiety.” Further to her doctor’s
recommendations, Ms. Overdevest returned to work on September 30, 2019. She
later advised the Employer about her concerns that her colleagues had taken
pictures of her when she was lying on the floor injured. Ms. Overdevest received
an appropriate ergonomic chair in June of 2021, although her desk is not at an
appropriate height.
[8] On July 12, 2019, two days after she fell from the broken chair, Ms. Overdevest
filed a grievance in which she wrote as follows: “I grieve that the employer has
-4-
violated my rights, including but not limited to Article 2 and 9 of the Collective
Agreement. The employer has further violated my rights under the Human Rights
Code by neglecting their duty to accommodate. The Union reserves the right to
rely upon any other applicable Article or legislation.” As part of her desired
settlement Ms. Overdevest requested that the Employer “Provide the grievor with
all resources needed to select a new, safe, workplace chair of their choosing and
full ergonomic assessment.” At a Formal Resolution Stage (“FRS”) meeting, the
grievance was extended to cover Article 3 of the Collective Agreement based on
the allegation that a colleague took pictures of Ms. Overdevest during her
workplace accident on July 10, 2019. This grievance is properly before me.
[9] The remaining circumstances in the particulars and the documentary material
primarily cover a period from Ms. Overdevest’s return to work on September 30,
2019, until she filed the grievance dated April 15, 2020. The particulars address a
number of subjects in this six month period. One matter addressed is the
Employer’s efforts to develop a return to work and an accommodation plan for Ms.
Overdevest. Ms. Overdevest’s perspective on these matters is referenced in
paragraph’s 52 to 72 of the Union’s particulars. Paragraph 71 suggests that an
appropriate accommodation plan was developed and agreed to by Ms.
Overdevest, the Employer and the Union, in the presence of a WSIB
representative, at a meeting on October 31, 2019. Ms. Overdevest contends that
the Employer failed to properly accommodate her earlier and thereby prevented
her from returning to work earlier. A further matter addressed is a pay issue
referenced in paragraphs 73 to 81 of the particulars. Sometime in November
2019, Ms. Overdevest became aware that the WSIB had denied her claim for the
time she was off work between July to September 2019. Since the WSIB clawed
back the amount it had previously paid her for this period, she had numerous
conversations with the Employer about being compensated for her lost pay. Ms.
Overdevest’s request to be paid short term sick pay (“STSP”) for the relevant
period was refused by the Employer. During a somewhat contentious and tense
discussion on November 22, 2019, Ms. Overdevest was advised that she had
-5-
been overpaid and that she could not use STSP credits if WSIB loss of earnings
were denied.
[10] Another subject referenced in the particulars is the disciplinary process and the
eventual issuing of suspensions to Ms. Overdevest. The reference to the
disciplinary process begins at paragraph 82 of the particulars. There was
allegation meetings held during which the Employer wanted Ms. Overdevest to
respond to numerous allegations relating to inappropriate conduct, primarily having
to do with her difficulties working cooperatively with others. The first allegation
meeting took place on November 28, 2019.
[11] On November 28, 2019, the day of the first allegation meeting, Ms. Overdevest
filed two grievances. The statement of grievance in one of them reads as follows:
“I grieve that the Employer has denied me access to the short term sickness plan,
which is in violation of article 41 - Workplace Safety and Insurance, article 44 -
Short term Sickness Plan, specifically but not exclusively of the Collective
Agreement and any other Employment related statute that may apply.” The
primary remedy she requests on the face of the grievance is “To access my Short
Term Sickness Plan for the period(s) in question.” I will refer to this grievance as
the STSP grievance. In paragraph 87 of the particulars, the Union notes that
further to the STSP grievance, “Ms. Overdevest seeks lost wages from July 2019
to November 2019 as well as damages for the Employer’s breach of her human
rights and her pain and suffering of enduring such breaches.” It is this grievance
which the Employer seeks to have dismissed because of its untimely referral.
[12] The statement in her other grievance dated November 28, 2019 is as follows: “I
grieve that the Employer failed to provide me with a proper accommodation,
thereby impeding my ability to return to work earlier, which is in violation article 3 -
No Discrimination/Employment Equity, article 9 - Health and Safety and Video
Display Terminals, article 41 - Workplace Safety and Insurance, article 44 - Short
Term Sickness Plan, specifically but not exclusively of the Collective Agreement
and any other Employment related statute that may apply.” The primary remedy
-6-
she requests on the face of this grievance is “To be compensated for the period
when I was cleared to return to work.” I will refer to this grievance as the
November 28, 2019 accommodation grievance. This grievance was addressed at
a FRS meeting, but was not referred to the GSB.
[13] Continuing with the disciplinary process, a second follow up allegation meeting
took place on January 20, 2020. Ms. Overdevest’s disciplinary meeting took place
on March 27, 2020. At that time, she was disciplined as follows: a 1-day
suspension for notes she made about her coworkers; a 1-day suspension for
behaving in an intimidating, condescending and disrespectful manner towards her
coworkers; and, a 2-day suspension for making inappropriate comments and
rolling her eyes in her interaction with management.
[14] The grievance filed by Ms. Overdevest dated April 15, 2020, is very broad. It
challenges the validity of the suspensions and alleges that the Employer engaged
in conduct against her that constitutes harassment, bullying and discrimination.
The Statement of grievance reads as follows: “I grieve the Employer has breached
and violated my rights including but not limited to Article 2 - Management Rights,
Article 3 - No Discrimination, Article 9 - Health and Safety of the Collective
Agreement, the Ontario Human Rights Code, the Respectful Workplace Policy,
and the Occupational Health and Safety Act; and any and all applicable Articles,
Legislation, Policies, and Acts by failing to provide a workplace free from
harassment and by causing an abusive and bullying relationship to exist; and
further discriminating against me by engaging in differential treatment and
expectations thereby causing me undue stress and mental anguish which is
injurious to my dignity.” There are many particulars provided by the Union which
reference the alleged different, discriminatory and harassing treatment by the
Employer against Ms. Overdevest. As noted previously, it is this grievance that
the Union wants to consolidate or hear together with the July 12, 2019 grievance
and the STSP grievance.
-7-
[15] The FRS meeting for the grievance dated July 12, 2019, the STSP grievance and
the November 28, 2019 accommodation grievance was held on February 4, 2020.
The Employer’s decision to deny these grievances was communicated to Ms.
Overdevest by letter dated February 11, 2020. The mandatory time limit in the
Collective Agreement for the Union to refer a grievance to the GSB is 15 days from
the date a grievor received the decision denying the grievance. In this instance,
the Union was obliged to refer the grievances to arbitration by no later than March
4, 2020. The referral to arbitration was made on July 27, 2020.
[16] Ms. Overdevest became the Local Union President in April of 2019. Her
experience in sending off grievances to the OPSEU Grievance Department for
referral was limited to sending only three of her previous grievances. Since her
OPSEU Staff Representative was on a leave in mid-February 2020, Ms.
Overdevest took it upon herself to send the relevant grievances to OPSEU for
referral so that the time limits would be met. She was well aware of the 15-day
time limit for referring grievances to the GSB. At 7:39 a.m., on February 13, 2020,
two days after her grievances had been denied, Ms. Overdevest sent an email to
OPSEU with three grievances attached. She intended to attach the three
grievances that were discussed at the FRS meeting on February 4, 2020, and
subsequently denied by the Employer. She did attach the July 12, 2019 grievance
to her email. However, instead of attaching the two grievances dated November
28, 2019, including the STSP grievance, Ms. Overdevest made an innocent error
and attached her two 2017 grievances that had been settled approximately five
months earlier. Ms. Overdevest explained the error in part by stating that she was
rushing to send the grievances to OPSEU before starting work. She also indicated
that she was “spread thin” at the time and dealing with the illness of a family
member.
[17] Ms. Overdevest did not become aware of her error and that her STSP grievance
had not been referred to the GSB until late July 2020. OPSEU has a practice of
sending a copy of the referral letter to the grievor. Ms. Overdevest did not notice
that she had not received a copy of the referral letter relating to her STSP
-8-
grievance. She indicated that “She had a lot going on at the time”. Near the end
of July of 2020, the Union and Employer were in communication about a list of
grievances that would be scheduled at an upcoming Joint File Review meeting.
Ms. Overdevest’s July 12, 2009 grievance was on the list, but not the two
November 28, 2019 grievances that she had intended to forward to OPSEU. The
Employer’s ERA brought to the Union’s attention that these grievances were not
on the list and the Union advised the ERA that it would contact Ms. Overdevest
about the two 2019 grievances. The ERA had also communicated to the Union
the objections the Employer would make if the Union intended to pursue them. An
OPSEU clerk emailed Ms. Overdevest about the issue on Friday, July 24, 2020.
Early on Monday, July 24, 2020, Ms. Overdevest asked the clerk to send her a
copy of the two 2017 grievances at issue. When she received them later that day,
she then realized her error. She immediately sent OPSEU the STSP grievance
and the November 28, 2019 accommodation grievance for referral. No one from
OPSEU was called to explain why Ms. Overdevest’s error was not discovered
sooner in order to avoid the late referral.
[18] Ms. Overdevest testified that the lost income flowing from the chair breaking and
her further medical issues were very significant for her. She also stated that the
circumstance of this grievance tied into her earlier and later experiences from the
Employer that gave rise to her other two grievances.
[19] I will now address to four motions in the order that they were argued. In
determining the motions, I have considered the factual context and the
submissions of counsel, including the decisions they referred me to. I will address
each motion concisely, without a detailed reference to the submissions or to the
decisions relied on by counsel. There was no dispute over the principles to apply
to the relevant circumstances.
-9-
CONSOLIDATION MOTION
[20] Rule 3 of the GSB’s Rules of Procedure deals with the power of the GSB to
consolidate or to hear grievances together. In essence, it provides that an
Arbitrator can exercise this power if it appears that the grievances have a question
of law or fact in common and/or the relief claimed arises out of a series of
transactions or occurrences. Union counsel submitted that the application of the
relevant considerations to the circumstances of the instant case justified
consolidation of or the hearing of the April 15, 2020 grievance with the two other
grievances before me. Employer counsel thoroughly reviewed each grievance and
argued that they are distinct grievances and that there was nothing in the nature of
the April 15, 2020 grievance to warrant consolidation or to have it heard with the
other two grievances.
[21] In support of this motion, Union counsel relied on the following decisions: OPSEU
(Pozderka) and Ministry of Transportation, 2019 CanLII 97258 (ON GSB
Leighton); and, OPSEU (Auguste) and Ministry of Government and Consumer
Services, (2019) GSB File Nos. 2017-2268 et al. (Dissanayake). In arguing
against the motion, Employer counsel referred to the following decisions: OPSEU
(Samsone) and Ministry of Community Safety and Correctional Services, (2006)
GSB File Nos. 2004-2855 et al. (Harris); OPSEU (McClelland/Ward) and Ministry
of Community Safety and Correctional Services, (2013) GSB File Nos. 2006-2584
et al. (Briggs); OPSEU (Upson) and Ministry of Community Safety and
Correctional Services, (2013) GSB File Nos. 2009-0405 et al. (Harris); and,
OPSEU (Frater) and Ministry of the Solicitor General, (2021) GSB File Nos. 2019-
2628 et al. (Wacyk).
[22] In addition to challenging her suspensions, the April 15, 2020 grievance makes
reference to the Ontario Human Rights Code and it alleges that the Employer
discriminated and harassed Ms. Overdevest contrary to the Collective Agreement.
The Union asserts that the circumstances that led to the filing of the July 12, 2019
accommodation grievance and the Employer’s subsequent efforts to
-10-
accommodate her, the manner in which it handled her STSP request and the
suspensions it imposed on her are part of a pattern of harassing and
discriminatory treatment against Ms. Overdevest. In effect, the Union claims that it
is necessary to hear about the earlier events in order to obtain a complete picture
of those matters which are specifically covered by the April 15, 2020 grievance.
Although Employer counsel made thorough and thoughtful submissions to
convince me otherwise, I have determined that the Union has established that
there is a sufficient factual and legal issues link between the three grievances to
warrant hearing the April 15, 2020 grievance and the other two grievances
together. In my view, practical considerations justify this approach. Rather than
consolidating the grievances, I find it appropriate to direct that the April 15, 2020
grievance be heard together with the July 12, 2019 grievance and the STSP
grievance, subject to the outcome of the Employer’s untimely referral motion. How
the grievances will be heard together is a question that will have to be determined
when the hearing resumes.
MOTION TO DISMISS BASED ON AN UNTIMELY RFERRAL
[23] As noted previously, the STSP grievance was referred late to the GSB by almost
five months. As is usually the case in this type of motion, counsel focused their
submissions on whether I should exercise my discretion under section 48(16) of
the Ontario Labour Relation Act to extend the time for the referral of the grievance.
Each counsel referred to the relevant factors for consideration in light of the
circumstances to support their position on the motion.
[24] In support of the Employer’s position, Employer counsel relied on the following
decisions: OPSEU (Bremner) and Ministry of the Attorney General, (2020) GSB
File Nos. 2017-2936 et al. (Misra); OPSEU (Nedai) and Ministry of the Attorney
General, (2016) GSB File Nos. 2015-2063 et al. (Briggs); OPSEU (Berday) and
Ministry of Transportation, (2008) GSB File No. 2007-3132 (Devins); OPSEU
(Smith et al.) and Ministry of Community and Social Services, GSB File Nos. 2006-
2107 (Gray); OPSEU (Kavanaugh) and Ministry of Community and Social
-11-
Services, (2009) GSB File Nos. 2007-0136 et al. (Harris); and, OPSEU (Chu) and
Ministry of Community and Social Services, GSB File No. 2015-2559 (Petryshen).
Union counsel referred to the following decision: OPSEU (Clarke et al.) and
Ministry of Natural Resources and Forestry, 2018 CanLII 119575 (ON GSB
Dissanayake); Howard Johnson East and UNITE HERE Ontario Council (Nickolls),
2006 CarswellOnt 10581 (Albertyn); Re Royal Crest Lifecare Group and S.E.I.U.,
Local204 (2000), 91 L.A.C. (4th) 389 (Craven); and, OPSEU (Stone)and Ontario
Clean Water Agency, 2001 CanLII 25773 (ON GSB Johnston).
[25] In paragraphs 10-12 in OPSEU (Chu) and Ministry of Community and Social
Services, supra, I described the effect of section 48(16) and the relevant factors to
consider as set out in two well known decisions as follows:
[10] 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. The
relevant factors for consideration when determining whether to exercise the
discretion to extend time limits were canvassed in Becker Milk Company and
Teamsters Union, Local 647 (1978), 19 L.A.C. (2nd) 217 (Burkett) and
Greater Niagara General Hospital and O.N.A. (1981), 1 L.A.C. (3rd) 1
(Schiff). 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.
[11] Arbitrator Schiff referred the following factors:
1. The nature of the grievance.
-12-
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.
[12] The above decisions contain examples of how these factors are applied
in different factual contexts and suggest that the various factors are not
considered in isolation. In essence, the decisions illustrate that the extent of
the delay and the reason for the delay will be considered in light of the
seriousness of the subject matter grieved.
[26] In determining whether there are reasonable grounds for the extension of the
referral time limit requested by the Union, I have had regard to the following
considerations. The delay of almost five months in referring the STSP grievance
to arbitration is a significant delay which does not favour an extension of the time
limit. However, the length of the delay by itself is not determinative. There are
several factors in the instant case that favour an extension. The grievance is
about whether Ms. Overdevest was entitled to use sick credits for a number of
months. A compensation issue of this sort is not an insignificant matter and it is
obviously important to Ms. Overdevest. The delay did not occur in the filing of the
grievance. The Employer was well aware of the claim being made by Ms.
Overdevest since the STSP grievance had been discussed at the FRS meeting on
February 4, 2020. While I am somewhat troubled by the failure of OPSEU to
provide an explanation for any role it played that may have contributed to the late
referral, the primary reason for the delay was the error made by Ms. Overdevest
when she sent two wrong grievances to OPSEU for referral instead of the STSP
grievance. Her intention was to send the STSP grievance to OPSEU so that it
could be referred in a timely manner, but did not do so as a result an innocent
mistake. She attempted to act with due diligence. This is not a case where Ms.
Overdevest had a disregard for the relevant time limit and she was not acting in
bad faith. In the circumstances, given her personal situation at the time, Ms.
Overdevest cannot be faulted for not noticing that she had not received a copy of
-13-
the STSP referral from OPSEU and for not taking steps to ensure that her
grievances had been referred in a timely manner. Given her consistent efforts to
pursue her claim for STSP credits, it is not necessarily the case that it would have
been reasonable for the Employer to assume that she had abandoned the STSP
grievance.
[27] After considering the relevant factors and in balancing the interests at stake, I am
satisfied that reasonable grounds exist for the extension of the time limit for the
referral of the STSP grievance. The Employer did not take the position that it
would be prejudiced by such an extension. Accordingly, the Employer’s motion
concerning the untimely referral of the STSP grievance is hereby dismissed. The
STSP grievance shall be heard with the other two grievances.
MOTION TO STRIKE PARTICULARS 3-19
[28] The Employer has established that the particulars in paragraphs 3 to 19 are
essentially identical to the particulars filed by the Union for Ms. Overdevest’s 2017
grievances and that those grievances were resolved by an MOS dated August 28,
2018. It was on this basis that Employer counsel requested that I exercise my
discretion to exclude the calling of evidence relating to these particulars by striking
the particulars from this proceeding. Noting that the Union was not relying on
these particulars for remedy purposes, and only intended to rely on them for
context to buttress its position that there has been a pattern of improper Employer
conduct directed at Ms. Overdevest, Union counsel submitted that the MOS should
not preclude the Union from calling the relevant evidence relating to these
paragraphs in the particulars.
[29] In support of the Employer’s position on this motion, counsel referred me to the
following decisions: OPSEU (Hawkes) and Ministry of Community Safety and
Correctional Services, (2009) GSB File Nos. 2007-2388 et al. (Leighton); OPSEU
(Kyba et al.) and Ministry of the Environment, Conservation and Parks, (2018)
GSB File No. 2016-2013 (Dissanayake); and, OPSEU (Malik) and Ministry of
-14-
Labour, (2012) GSB File No. 2010-2912 (Herlich). Union counsel referred to the
following decisions during his submissions: OPSEU (Richard) and Ontario Clean
Water Agency, (2005) GSB File No. 2000-1220 (Abramsky); and, OPSEU
(Waraich) and Ministry of Labour, (2005) GSB File No. 2003-0187 (Watters).
[30] In addressing this type of issue, the GSB has recognized the importance of
enforcing settlements. It has expressed the sentiment that the parties should
expect that the circumstances that gave rise to a settled grievance generally
cannot be revived to support subsequent grievances unless there are special
circumstances for doing so. In my view, there are no special circumstances in the
instant case which justify departing from the GSB’s usual approach. This
Employer motion is allowed. In the exercise of my discretion, the particulars in
paragraphs 3-19 are hereby struck from this proceeding. It follows that the Union
will not be permitted to call evidence in relation to the matters described in
paragraphs 3-19 of the particulars.
MOTION TO STRIKE PARTICULARS 52-72
[31] As noted in paragraph 9 of this decision, paragraphs 52-72 of the particulars
essentially deal with efforts to develop an accommodation plan for Ms. Overdevest
during September and October 2019. Although it appears that a successful result
was achieved on October 31, 2019, the Union contends that Ms. Overdevest
should have been accommodated earlier and that the Employer was responsible
for the delay. In requesting to have these particulars struck, the Employer takes
the position that they are beyond the scope of all three of Ms. Overdevest’s
grievances. The Union disagrees. It argued that these particulars are within the
scope of the April 15, 2020 grievance as well as the July 12, 2019 grievance. As I
understand its position, the Union also relies on these particulars to further
establish a pattern of improper treatment by the Employer against Ms. Overdevest.
[32] On this motion, Employer counsel relied on the following decisions: OPSEU
(Boudarga) and Ministry of Government and Consumers Services, (2019) GSB
-15-
File No. 2018-1811 (McLean); and, OPSEU (St. Hilaire) and Ministry of
Community and Social Services, (2016) GSB File No. 2014-0572 (Dissanayake).
Union counsel referred to the following decisions: OPSEU (Sin) and Liquor Control
Board of Ontario, 2008 CanLII 32798 (ON GSB Dissanayake); Spruce Falls Inc.
and IWA-Canada, Local 2995 (Trudel), a decision dated April 5, 2002 (Knopf);
and, Waterloo Region District School Board and Custodial and Maintenance
Association, a decision dated April 26, 2010 (Monteith).
[33] The Employer’s position that the matters described in these particulars are beyond
the scope of the April 15, 2020 grievance may have merit. I agree with Employer
counsel that the wording of the November 28, 2019 accommodation grievance
was designed to address the circumstances described in the particulars in
paragraphs 52-72. When she filed the April 2020 grievance, Ms. Overdevest
would have believed that the November 28, 2019 accommodation grievance was
still a live grievance and it is unlikely that she would have grieved the same
accommodation issue in the later grievance. More importantly, the April 15, 2020
grievance does not explicitly complain about accommodation. Some of her other
grievances indicate that if she wants to grieve about the Employer’s failure to
properly accommodate her, Ms. Overdevest knows how to clearly express that
intent in a grievance. If the April 15, 2020 grievance is not about accommodation
and since the November 28, 2019 accommodation grievance was not referred to
the GSB, and therefore not before me, the Union may be precluded from seeking a
remedy for the Employer’s alleged contravention the Collective Agreement in
relation to the events described in paragraphs 52-72. However, I find it
unnecessary to make a determination on this issue at this stage of the
proceedings. I find that the Union is entitled to call evidence on the matters
covered by paragraphs 52-72 to support its position that the events described
therein are part of a pattern of conduct by the Employer and perhaps to support its
position on the July 12, 2019 grievance. It is on this basis that I find it
inappropriate to strike paragraphs 52-72 from the Union’s particulars.
-16-
[34] To summarize, the Union’s motion to hear the April 15, 2020 grievance with the
other two grievances and the Employer’s motion to strike paragraphs 3-19 in the
Union’s particulars are allowed. The Employer motion to dismiss the STSP
grievance due to its untimely referral and its motion to strike paragraphs 52-72 of
the Union’s particulars are hereby dismissed. The hearing will continue as
scheduled.
Dated at Toronto, Ontario this 12th day of December 2022.
“Ken Petryshen”
______________________
Ken Petryshen - Arbitrator