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Home My WebLink About2009-3379.Ng.10-07-06 Decision en.n EiJJpIo)II!es Grievance Settlement Board smte mo 180 IJlndas 5t WesI TCJRJrm. QBiD IofiG 1ZB Tel (4-16) 326-1388 Fax (4-16) 326-1396 Commission de riglement des griefs des~dela CoIfinJe Ibeau mo 180. rue IJlndas Ouest T CJRJrm (OnIario) M5G 1ZB Tel: (4-16) 326-1388 T~ : (4-16) 326-1396 IN THE MATIER OF AN ARBITRATION Under ~ Ontario GSB#2009-0681 UNION#2009-0528-0004 THE CROWN EMPLOYEES COlLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER BY SUBMISSIONS Before THE GRIEVANCE SETILEMENT BOARD Ontario Public Service Employees Union (Hg) - aad - The Crown in Right of Ontario (MinistIy of Government Services) LoIdta Mikus Ryan White CavaUuzzo Ha~ Shilton McIntyre & Cornish LLP Counsel Ca1hy Phan Minis1Iy of Government Services Counsel May 14,21 and 30, 2010 Umon Employer Vtre-Chair -2- Decision [1] The grievor, ROIa Ng, was an Applica:tioo. Analyst with 1he Minis1Iy of Government Services, Business Solutions and Government Services Delivery CIuster_ She was suspended 00. January 22, 2009, March 6, 2009 and April 23, 2009 for 1, 3 and 5 days respectively_ The reasons given for all three suspensions were the same, namely insubonIinatioo. for fai1ine to attend a nmnber of mandatory meetings and a:failure to cmnplete work assil? 1111r.1.ls_ On May 5, 2009 she filed 1he following grievance: I grieve 1hat M~'s w..upa, unfair, 1IIIreIISOIIab1e actions dial jeopardize my job secm:i:ty have violated 1he Collective Agreement includine but not limited to Article 2 {M~'s RigIds} aod Article 3 (no-discrimina1i), 1he Employment StaIldards Act, 2000 - 8,0, 2000, CbapU 41, Part xvm RqJrisal Section 74, aod any od1er sbdntes aod policies dial may awly. [2] It was during discussions prim to the COIIIIIleIlCeII of 1he first day ofhearing that the Employer became aware of the Unioo.'s positioo.that this grievance includes a challenge to 1hese three suspensions.. It was 1he Employer's positioo. that 1he Union was att~ll.lting to expand the grounds of 1he original grievance_ In 1he aItema1ive, it was submitted, if the Board should allow 1he Union's position, the grievances are untimely and should be dismi!i;.V'J'I [3] The parties agreed to deal with 1hese issues by written submissions and this interim decisioo. deals with the Employers motion chaIlen~ne my jurisdictioo. to hear this grievance 00. the grounds advanced by the Unioo. and its motioo. to dismiss this aspect of the grievance ber.all!i:P. it was not :filed in compliance with the time limits under the collective agreement. [4] This grievance has been coosoliilatPJi with two others conceming subsequent suspensions and a tenninatioo. and there has been oo.e prelimimllY decision 1h1ine with the Employers motioo. to dismi!i;.~ oo.e of the grievances because it was filed outside of 1he time limits under 1he collective agreement. At that previous hearing the grievor testified that she filed 1hese grievances because she felt she was being harassed :for taking a family medical leave of absence_ She also stated that she was under stress at the time ber.all!i:P. ofher mother's passing and that, at 1he time, she did not believe 1hese suspensions were disciplinary_ They were part of1he pattern of ongoing harassment she was being subjected to by the employer. -3- It was the Employer's submission 1bat the clear words of1he grievance and the grievor's own evidence contradict 1he Union's position.. [5] The Employer also relied on a later grievance filed by the grievor on December- 18,2009 in which she specifically stated 1bat she was grieving unjust discipline and n:fl:Llul to 1he 1bree additional suspension she had received. The Employer asserted 1hat 1here was no such similar Iangnage in 1he May 5th grievance 1bat reIates to the :first 1bree suspensioos. [6] WIth respect to 1he issue of1imeliness, 1he Employer pointed to Article 222.1 of1he collective agreement that states employees must file a grievance wi1hin 30 days of 1he event giving rise to 1he cmnpIaint. The grievm" is 2 months out of time :for 1he first suspension and 2 weeks out of time for the second There has been no reason given for the delays_ When she was asked if the stress she was experiencing at 1he time affected her ability to file a grievance, she IqJIied "it might have". She did not rely on1bat as an expIanation fOl" her actions.. Her evidence that she did not consider 1hese suspensions to be discipline is nei1her credible or reasonable and should be rejected by the Boanl [7] In support of its position1he Employer relied on1he following cases; Re OPSEU (Blains Wanlen) mul Ministry afCorrectional Servic&Y (1989), GSB # 1151187 (Dissanayake); Re OPSEU (J01Ie3 et al) and Ministry a/Labour (2010), GSB -# 2006-1204 (R. Abnunsly); He OPSEU (St.. Jean et al) mul Ministry a/Community mul CorrectUmal Servic&Y (2004), GSB # 200111122 (Leighton); He OPSEU (Berday) mul Ministry a/Transportation (2008) GSB # 2007/3132 (R.lJevin) and Re OPSEU (Smith et al) mul Ministry of Community mul Social Servic&Y (2008), GSB # 2006/2107 (0. Gray)_ [8] The Union asserted that 1his grievance was propel" and timely. The grievance was clearly filed in relation to disciplinary action taken against 1he grievOl". It is broadly worded and can reasonably include the 1bree suspensions. In 1he grievance Ms. Ng alleged that the Employer had taken i.mp..upc1, unfair and unreasnnahle actions that jeopardized her job security. While 1he grievance does not expressly use 1he tenD "suspension", it is clear 1bat she was taking issue with 1he disciplinary sanctions she had received, namely 1he suspensions of January, MardI and April of2009. In her grievance she .efl:Llul to Article 2, which includes the -4- Employer's right to discipline, dismis.~ or suspend an employee. The suspensions in question can be described as a 1breat to her job security and as a violation of mana~' rights under Article 2_ 1he Union is not raising new isstrs but rather clarifying the events 1bat gave rise to 1he grievance. [9] 1he grievor also alleged the Employer had vioIated section 74 of the ESA which prohibits an employer :from taking any disciplinary action against employees because 1hey allMlI qlkd to enforre 1heir rights under the Act. Clearly the grievor intP.ndP.d her complaint to include evayftUng she felt constituted lJapKomIP.JIt and reprisal WIth 1he exception of the 1bree suspensions of January, March and April, 1he Employer cannot and has not mentioned any oftrer actions that the grievor could have been n:fl:uiug to in her grievance. [10] 1he 1imine of the grievance is also helpful to 1he Union's positiOlL It was:filed on May Sh, two business days after 1he grievor returned to wmk fium the April suspension.. This Board should draw 1he reasonable conclusion that 1he grievor was referring to 1hese suspensions when she filed 1he grievance. 1he Employer knew or ought to have known 1he real issue between the parties. It cannot be said that 1he Employer was confil!Oft1 by the issues raised by 1he grievance or has su.ffered any prejudice_ [11] 1he Union submitted 1bat the jurispnuIence dictates, as been approved by the Ontario Court of Appeal, that grievances shooId be constmed bmadIy to deal with the real issue between 1he parties_ AIbi1Iators have held that principle shooId be applied as long as 1he post- grievance elabom1ion of the real cmnpIaint does not create smprise which cannot be addressed by providing particulars and/or an adjonmment Ms_ Ng's allegations are sufficiently broad to encompass 1he 1bree suspensions at issue. She stated in her grievance 1bat the Employer had taken actions 1bat jeopardize her job security. She spoke in the plmal, which is consistent with 1he Union's position.. [12] WIth respect to 1he issue of timeliness, 1he Union took: the position 1bat the grievance, in so far as it pertains to 1he April suspension, was timely_ The collective agreement allows a grievor 30 days to file a grievance and the suspension was :from April 24 to 30 inclusive. The grievance is dated May 5", well wi1bin 1he time Iimits_ -5- [13] The grievance as it relates to 1he January suspension was filed 2 mon1hs after the event and 1he grievance relatine to the March suspension was :filed two weeks after the evmt. AI1hough the grievance concerning 1hose two events is untimely, the BmnI should exercise its discretion under- secbon48 of the Labour Relatio1ls Act. which is incmpmated into the Crown Employee:r Collective Bargaining Act 1993 s.o. 1993, Chapter 38, and which states as follows: Except where a collective agreement states 1hat 1bis subsection does not apply, an mbihatw or mbihation board may extend the time :fix" taking of any step in the grievance procedure under a collective agreement. despite 1he CApllabon of1he time, where the mbihatw or mbihation board is satisfied that there are reasonable grounds :fix" the extenKinn and that 1he owosite party will not be substantially prejudiced [14] In deff"fl1l1nine whether- reasonable grounds exist for extendine a time limit, arbitIatoIs have adopted and applied the cnmments of AIbimdo:r Budett in the Becker Milk case (infia) which stands for the pmposition1hat IHJ one :factm- is detf"fl1l1native but ra1her an aIbitIato:r must coosider the reason for the delay, 1he 1eng1b. of the delay and 1he nature of the gnevance- [15] It was stated 1bat the reason for the delay was 1he fitct 1hat 1he grievor had been under stress due to 1he death ofher moftrer and was confused about the nature of1he Employer's actions_ She did IHJt coosider 1hese suspensions to be disciplinary but simply eraR1ples of the haras.QJlent she fdt at 1he time_ FOI" 1hese reasoos 1he grievOl" was not negligent in responding to the suspensions. However, it was submitted, evm if1he BmnI concludes that the reason for the delay was not reasonable, 1he jurisprudence requires it to coosider 1he remainine factoIs. [16] One of1hose factors, it was submitted, is the length of the delay_ In 1bis case 1he Board is considering a 2 month delay and a two week delay, nei:ther of which has been seen in other cases as significant eoougb. to deny a grievor 1he right to have her complaint dealt wi1IL In fact, mbi1Iators have stated 1bat in the absence of substantial prejudice, an extension is 1he proper response. In 1bis case the Employer cannot show it will suffer any disadvantage by 1he delay. Specifically, the Grievance Settlement BmnI has detennined 1bat similar delays -6- have not been fatal fOl" a grievance. In the Stone case Vice-Chair Johnston held 1bat a 2-3 month delay was not significant [17] Finally, it was stated, 1he nature of 1he grievance should peISUBde 1he Board to extend 1he time limits_ In 1bis case 1hese grievances involve employment ~ 1bat cooId have grave cooseqnences :fm-1he grievOl", particularly bef-;an!i:P.1bis Board is seized of additional grievaIllrS involving further suspensions and termination. The suspensions at issue were relied on by the Employer in issuing 1he 1ater discipline and should be heard.. [18] In support of its position 1he Union relied on 1he following cases: He lIyJro Ottawa LimiIetJ v. International Brotherhood of Electrical Worlcen. Local 636 (2007), 161 LAC. (4" 161, 85 01 (3d) 727 (Ontario Coort of AppeaI); He Blouin Drywall Contract0T3 LId 11'_ United Brotherhood ofCmperllers mul Joiners of America, Local 2486 (1975), 57 D_ L. R.. (3d) (Ontario Court of Appeal); Re CanaJa Post Corp mul CUP_ w: (Hiclanott) 28 CLA.S. 387 (Adell); He Tenaquip LId and Teamsters CanaJa. Local 419 (YandervenJe) (2002,), 112 LAC_ (4~ 60 (E- Newman); He Fenunti Pac/uuJ Transformer.s LId and us.. W A, Local 5788 (1993), 36 LAC. (4" 307 (Haefline); He.. Saint-Gobain Technical Fabrics LId and UNJ..TE (2005), 83 CLAS_ 181 (p. Chapman); He LCBO mul OPSEU (Aleong) (1997), GSB # 1318196; He Ontario Clean Water Agency and OPSEU, (2001), GSB #1111199; Re Becker Milk Company Ltd_ mul Teamsters, Local 647 (1978), 19 LAC_ (2d) 217 (Bmkett)- REASONS FOR DECISION [19] The first issue for me to decide is whe1her 1he Union's position in respect of 1he suspensions of January, March and April of2009 is an expansion of 1he grounds of the original grievance. 1bat grievance reads as follows: I grieve 1hat M~'s w..upa, unfair, 1IIIreIISOIIab1e actions that jeopardize my job secm:i:ty have violated the Collective Agreement includine but not limited to Article 2 {M~'s Rigbts} aod Article 3 (no-discrimina1i), the Employment StaIldards Act, 2000 - 8,0, 2000, CbapU 41, Part xvm RqJrisal Section 74, aod any od1er statutes aod policies that may awly. -7- [20] In 1he case of OPSEU (Jones et al) (supra) AIbimdor AImunsky did a compIdrensive and helpful review of the jurispmdence on 1he expansioo. of grounds. In that case nine Employment Standard Officers (ESO's) filed a group grievance alleging 1bat a newIy imposed quota of a minimum of20 :files a week constituted an <<unfair wmlload" and ams JH) basis for justification as a palUuuauce measure and cannot be sustained over a prolonged period of time"_ No specific provisions of the collective agreement were cited and 1he remedy sought was <<no qoota"_ When 1he Union provided particulars in prepandioo. for hearing, it claimed a violation of article 9 - HeaI1h and Safety- and 1he Occupational Health and Scifety Act.. The employer objected and 1he award deals with 1bat issue.. [21] AIbi1mtol:" AImunsky began her analysis with 1he Blouin Drywall case (supra) and the often quoted passage by the Ontario Court of Appeal which, on page 108, states as follows: No doubt it is the pracIice that grievances be snhnrittm in writing and that the dispute be cleady stated, but 1hese cases should not be won 01" lost on the -rer:bnicality of fonn. ndher than on the merits as provided in the conlmct and so 1he dispute may be :fi.nally and fairly resolved with simplicity and di,.mr.h_... Certainly, this Board is bound by 1he grievance before it but the grievance should be IibenIly constructed so that the real complaint is dealt with and the iiI}IlD-U}Aiate remedy provided to give effect to the agreement provisions.._ [22] That principle was elaborated on in the He Electrohome LId and LB..E. W, Local 2345 (1984), 16 LAC_ (3d 78 (RaynOl) at p_ 82: If the issue raised at the mb.ibation hearing is in:fact part of the miefflal grievaDce, a board of mb.ibidion shoold not deny itself jm::isdiction based on a teclmica1 objection to 1he scope of the original grievance. To do so would deny the value of:llcxJb.ility and would be to compel the parties to dmft 1heir grievances with the nicety of pleadinr,g. On the o1heI-lIand, if the issue raised by ooe of the parties is not inherent in 1he original grievaDce, foe 1he board to pennit the party to raise that issue as part of the original grievance would be to deny 1he parties the benefit of the grievance procedure in an atkuJpt to resolve the issue between 1hemse1ves. In fact. it would be to pennit one party to substitute a new grievance for the original. grievance. [23] AIbi1mtol:" AImunsky referred to AIbimdor Dissanayake cnmments inRe Greater Sudbury lIyJro Plus Inc.. and CUP ..E., Local 4705 (Armstrong Grievance) (2003), 121 LAC_ (4-, 193 as a helpful aid in detennining whether an issue has been added to an original grievance. He stated 1bat "to include an issue "through a h"bernl ~ I must be able to conclude that 1he employer reasnnahly should have understood upon ~ 1he grievance 1hat 1he issue in question was part of the grievance"_ -8- [24] She stated that, in detenninine 1he issue before it, the Board must detennine whedrer, on a h"bernl readine of the grievance, 1he issue in dispute is part of 01" inherent in 1he original grievance or whe1her it is an entirely new grievance. She stated 1bat her jurisdiction began wi1h the written grievance, which detennines the scope of the grievance and 1bat, in the case before her, there was no n:faaJCe to article 9 or the OHSA.. AI1hough references to health and safety issues had arisen during 1he infonnal discussions at Stage 1 of 1he grievance pmcedure, 1hey were not raised at 1he fonnal Stage 2 meeting. [25] She also considered other GSB aases OPSEU (Houghton) mul Ministry of Correctional Services, (1989), GSB # 0771/88 (Knopf) andRe OPSEU (Fung/AnanJ) mul Ministry oJ Revenue (1991), GSB # 1798/89 (Stewart). In the :former 1he Board di!mli~U"J'I a grievance where the oriemal grievance challenero 1he pmctice of assigning a maintenance mechanic to Correctiooal Officer duties.. The employer took: the position1bat 1he Board Iach:d jurisdiction to review managerial assif?ll1lel11s- The union argued 1bat the assienment of duties involved a health and safety issue bef-;an!i:P.1he grievor had not been tIained to perfonn 1hose duties, speci:fically strip-searches on inmates_ The Board ddMl..lined that 1he health and safety issues had not been raised mrtilthe hearing and 1bat it had not been D IIl1r...llIIated when the original grievance was filed [26] In contmst, in the Fung/AnanJ grievance, (supm), the Board allowed 1he inclusion of a claim of discrimination where 1he grievOl" had challenero 1he results of a job competition.. The union had pressed a claim 1bat the employer's emphasis on 1he interview adveIsely impacted on1he applicants whose :first lane-law and cultme were not F.neJish 1he Board f01Dld 1bat 1bat allegation could rea....nnahly fall within the genernllanguage of the grievance bef-;anfi;f~ it had been raised at 1he first stage of 1he grievance pmcedure and the union had advised the employer of its position in advance of the hearing. [27] In 1he case before her, AIbitmtor Abnunsky fomul1bat even 1hougb.1here had been cnmmen1s at 1he Stage 1 meeting aboot stress and o1her health concerns, those claims were never included in 1he written grievance that was subsequent:Iy filed There had been no mention of stress or health concerns 1bat could have rea....nnahly been constmed to be included or would -9- have put the employer on notice that was the true nature of1he grievance. Having dismissed 1he allegations of a violation of1he OHSA and Article 9 of the collective agreement, the Board fomul it did not have jurisdiction to review manageIlED.t's decision regarding the as..~iPJllllent of duties and disnri~ 1he grievance. [28] In 1he instant case I am faced wi1h a grievance 1bat alleges the Employer has engaged in actions 1bat were unfair, unreasonable and a threat to the grievor's job security. The cmtent and intent of the grievance is to be fomul in the events that were occurring at the time she filed 1he grievance_ [29] AccoIding to the letter of discipline, the Employer had been att~II".tiug to discuss pefionnance issues with 1he grievor and her alleged failure to cooperate was cause :fm- varioos responses ran~ne fiom counselling, 1etteIs of warning and three suspensions for esca1a1ine periods of time.. The suspensions were given, she was told, because she did not attend manilatnry meetings, she did not complete wotk as.<rienmen1s and was insubonIinate. None of 1hese letters of counselling and waminp;;: priOl" to the :first suspension were grieved She did send an e-mail to her supervisDI" requesting she be reimbursed fOl" 1hose lost days but 1bat ~ .efl:Llul to 1he two leave days she had taken under the ESA She stated that she did not grieve because she was 1Iying to be coopem1ive but 1bat the suspensions were getting longer and longer_ She filed 1he grievance because she fdt all of1he Employer's actions were harassment. [30] When one considels 1hese events, it is reasonable to conclude she was referring to the Employer's att~. .Ilb to manaee her perfOllll8llCe, including 1hese suspensions, when she :filed 1he grievance. She felt she was being harassed because she had taken time off and 1hese suspensions were part of that harassment I was not told of other actions that could explain 1he grievOl"'S use of WOlds like "lrnp.uper' "unfair' and "unreasonable>>_ More te1Iing is her reference to 1he jeopardy 1hese employer actions had on her job security. I am of 1he view 1bat those wOlds were intenilP.d to apply to the suspensions of January, MaIclt and April of 2009. When the grievance was filed the Employer knew 01" ought to have known 1he real issue between them. -10- [31] The suspensions of January, March and April are not sqJ8I31e ~ but rather an extension ofher allegations ofharassment The grievance was filed wi1bin days ofher return to wOIk: following the April suspensioo. and fall wi1bin the nature and ambit of1he grievance_ To 1bat extent, the Employer's motioo. to dismis.<ii. 1he grievance as it ~ to the suspensions of January, March and April, 2009, is dismis.ooed [32] The Employer has also raised an objectioo. to my hearing 1he aspects of the grievance relafine to these suspensions 00. the basis of timelinP.s.... The :first suspensioo. took place two mon1hs before 1he date on 1he grievance, the second two weeks before the grievance_ However, givm my ruling 00. 1he inclusion of 1hese grievances 00. 1he grounds of the allega:tioo. of harassment 1hey are not proceeding as discrete incidents but ra1her as part of 1he haras.......ent 1he grievOl" felt she was being subjected to at 1he time_ As such, the ongoing nature of 1he allegations brings 1hem wi1bin the ambit of the original grievance and are, 1herefore, timely. [33] FOI" 1bat reason the Employer's motions are dismissed The hearings will proceed on the dates agreed to by the parties. Dated at Toronto 1bis (/a day of July 2010_ ~ 1J ~ d"", /~ Loretta Mikus, Vice-Chair