Loading...
HomeMy WebLinkAbout2022-7867.Belgrave.23-06-01 Decision Crown 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# 2022-7867 UNION# 2022-0228-0019 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Belgrave) Union - and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE Kelly Waddingham Arbitrator FOR THE UNION Arielle Lewis Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Caroline Cohen Treasury Board Secretariat Legal Services Branch Senior Counsel Ryan Parry Articling Student Ministry of the Attorney General Treasury Board Secretariat Legal Services Branch HEARING May 2, 2023 -2 - Decision [1] This is a grievance filed by the Union on behalf of Amber Belgrave, alleging that the Employer breached the Collective Agreement between the parties, various workplace policies, and the Ontario Human Rights Code (the “Code”) following a period of disability by denying her access to Short Term Sickness Plan (“STSP”) benefits when she returned to work with an accommodation of modified hours in September 2020 until she returned to regularly scheduled full time hours in October 2022. [2] This decision addresses the Employer’s preliminary motion that the Board lacks jurisdiction because the grievance was not referred to arbitration in a timely manner. The Union contends that the grievance is timely because it is a continuing grievance. [3] I conclude that this is a continuing grievance, the reasons for my decision are set out below. BACKGROUND [4] For the purposes of the preliminary motion, the parties agreed to the following facts. [5] The Grievor began her career in the Ontario Public Service in 2009. She is currently an Assistant Trial Coordinator at the Brampton Court House, a position she has held since 2016. [6] In February 2020, the Grievor began a short-term disability leave. In September 2020, she returned to work on an Employee Accommodation Plan, working reduced hours. The Grievor returned to full time regularly scheduled hours in October 2022. [7] Article 44 of the Collective Agreement sets out the STSP benefits for full-time employees. In order to qualify for STSP benefits, an employee returning to work after receiving benefits under the Long-Term Income Protection Plan must complete twenty (20) consecutive working days of employment. The STSP provides an employee with their regular salary for the first six working days of absence, if they are unable to attend work due to sickness or injury. [8] On October 1, 2021, the Employer’s Business Support Officer for Brampton sent the Grievor the following email: I found out this week that you were off sick on September 13th and 14th. I have entered these in WIN today. This may reflect on your October 14th pay if not October 30th. Wanted to give you aheads [sic] up. [9] On October 4, 2021, the Grievor emailed the Employer: “Do I not have any sick days left for this year? I don’t think I have taken all 5”. [10] On the same day the Business Support Officer responded: -3 - You didn’t receive any sick days for this year because you need to come to work for 20 consecutive business days to be entitled to your sick days for the year. Hope this helps. [11] The Grievor replied via email: I have been back to work since October 2020. I worked consecutive days per my accommodation. I have also worked consecutive days throughout 2021. [12] On October 8, 2021 the Grievor received the following response from the Business Support Officer: I just received a response from the HR Advisor. Unfortunately you are not entitled to paid sick time yet. These days will have to go as unpaid. [13] On May 30, 2022, the Grievor emailed the Employer regarding her most recent pay period with the following request: It looks to me like I have not been paid sick/vacation time. I am unclear as to why this is and would request that it be paid out immediately as I cannot wait until the middle of June to have it added to my next cheque and be super penalized in taxes. [14] The Employer responded via email on May 30, 2022, setting out the deductions that had been made for pay periods 1213, 1211 and 1212. [15] Late in the afternoon of May 30, 2022, the Grievor sent the following reply to the Employer’s email: Thank you for your response. I am a permanent employee with full benefits and sick time. There is no reason for ANY pay to be deducted from my paycheck as I have sick days, Local time off funded by the Union and vacation days. Unfortunately I do not know what pay period 1213, 1211 or 1212 mean. I have not gone over the 6-day threshold for sick days this calendar year. I will need you to issue me the corrected deducted amount as soon as possible as nothing should have been deducted from my pay. Please advise and thank you. [16] The Grievor did not receive any STSP benefits. [17] The grievance was filed on July 15, 2022. [18] The Grievor’s STSP credits were restored sometime after she returned to the regular schedule in October 2022. -4 - THE PARTIES’ ARGUMENTS The Employer’s Argument [19] The Employer asserts that the grievance is untimely. Article 22 of the Collective Agreement requires a grievance to be filed within thirty (30) days after the circumstances giving rise to the complaint occurred or ought reasonably to have come to the attention of the employee. If a grievance is not processed within that period, it is deemed to be withdrawn. [20] In its October 4, 2021 email the Employer set out its interpretation of Article 44 of the Collective Agreement, that the Grievor did not qualify for STSP benefits inter alia sick days. The Grievor waited 9 months before she filed a grievance on July 15, 2022. The Employer asserts that it was reasonable to assume that given the time limits in the Collective Agreement for filing a grievance, and the lengthy passage of time that its denial of STSP benefits to the Grievor would remain unchallenged. [21] The Employer acknowledges that although the time limits under this Collective Agreement are mandatory, I am authorized by subsection 48(16) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (the “LRA” or the “Act”), to relieve against the Union’s failure to comply with the time limits, if I find that there are “reasonable grounds” for an extension” and the Employer will not be “substantially prejudiced as a result of the extension”. [22] The Employer contends that there are no reasonable grounds for me to exercise my discretion under subsection 48(16) to extend the time limit for this grievance. It points out that the timely resolution of disputes is an important principle in labour relations. The Employer maintains that the grievance does not pose significant concerns regarding job security, or health and safety. It asserts that the Grievor is a sophisticated member of the bargaining unit (having served on the Executive of the Local) and is aware of her rights under the Collective Agreement and the grievance process. The Employer contends that the Grievor failed to demonstrate due diligence after receiving the Employer's email on October 4, 2021. The Grievor delayed 9 months before the grievance was filed on July 15, 2022. The Employer maintains than neither the Union nor the Grievor provided any reasons for the delay in filing the grievance. The Employer submits that the serious prejudice it will suffer if the time limit is extended will come into sharper focus if this matter is litigated. [23] In sum, the Employer submits there is no basis for the exercise of discretion under the LRA to extend the time limit for filing a grievance. The Collective Agreement time limits, the Employer insists, are clear and unambiguous, and should be enforced. [24] In support of its position on the preliminary objection, the Employer referred to the following cases: OPSEU (Alexander) v. The Crown in Right of Ontario (Ministry of Transportation), GSB #2231/97 (Gray); The Becker Milk Company Limited v. Teamsters Local Union No. 647, 1978 CarswellOnt 885 (Burkett); Re Greater Niagara General Hospital and Ontario Nurses' Association, 1981 CanLII 44 (ON LA); OPSEU (Robbins) v. Liquor Control Board of Ontario (2015), GSB#2013-0526 et al. -5 - (Lynk); Ontario Public Service Employees Union (Poblete) v. Ontario (Government and Consumer Services), 2019 CanLII 21745 (ON GSB); Ontario Public Service Employees Union (Bremner) v. Ontario (Attorney General), 2020 CanLII 14807 (ON GSB); Ontario Public Service Employees Union (Flannery) v. Crown in Right of Ontario, 2013 CanLII 74172 (ON GSB); Ontario Public Service Employees Union (Finn) v. Ontario (Agriculture, Food and Rural Affairs), 2019 CanLII 35308 (ON GSB); Ontario Public Service Employees Union (Lachance) v. Ontario (Community Safety and Correctional Services), 2017 CanLII 30326 (ON GSB); Ontario Public Service Employees Union (Barker) v. Ontario (Solicitor General), 2020 CanLII 20374 (ON GSB); Ontario Public Service Employees Union v. Ontario (Government Services), 2010 CanLII 7279 (ON GSB); OPSEU (Faulkner) v. Ministry of Community Safety and Correctional Services (2008), GSB#2006-2093 (Petryshen); Ontario Public Service Employees Union (Hoyer) v. Ontario (Attorney General), 2021 CanLII 127110 (ON GSB); OPSEU (Smith et al.) v. Ministry of Community and Social Services (2008), GSB #2006-2107 et al. (Gray); OPSEU (Kavanaugh) v. Ministry of Community and Social Services (2009), GSB #2007-0136 et al. (Harris); Ontario Public Service Employees Union v. Ontario (Transportation), 2008 CanLII 70540 (ON GSB); Ontario Public Service Employees Union (Liantzakis) v. Ontario (Community Safety and Correctional Services), 2011 CanLII 83716 (ON GSB); Ontario Public Service Employees Union (Narine-Singh) v. The Crown in Right of Ontario (Ministry of Education and Training, GSB #0035/98 (Leighton); and OLBEU (Gamble) v. The Crown in Right of Ontario (Liquor Control Board of Ontario), GSB#1635/96 (Gray). The Union’s Argument [25] The Union insists that the Employer’s timeliness objection is without merit. The Union asserts that the Employer’s failure to restore the Grievor’s STSP benefits in September 2020 when she returned to work on an accommodated plan until October 2022 when she returned to regularly scheduled hours constitutes a continuous and repeated violation of the Employer’s obligation under the Collective Agreement. The grievance is not based on a single event, but is, rather, a continuing grievance. According to the Union, the issue of the appropriate scope or retroactivity of a remedy is separate from – and has no impact on – the issue of this Board’s jurisdiction to adjudicate the grievances. [26] The Union submits, further, that the Employer failed to interpret and apply Article 44 of the Collective Agreement in a manner that complies with the Human Rights Code, at the time the grievance was filed and for a period of time thereafter. [27] The Union disputes the Employer’s assertion that the situation in Bremner, supra, is similar to the present grievance. The primary issue in that case, the Union says, was whether a grievance regarding the denial of STSP benefits was timely. Arbitrator Misra granted the Employer’s preliminary motion and dismissed the grievance on the basis of timeliness. The Union argues that Bremner can be distinguished on two bases. First, it says, the Grievor in Bremner had not been at work for two years when the grievance was filed, whereas the Grievor in the instant -6 - case was at work when the grievance was filed. Second, OPSEU points out, the Union in Bremner did not argue the doctrine of a “continuing grievance”. [28] In support of its position on the preliminary objection, the Union referred to the following cases: Ontario (Ministry of the Attorney General) and O.P.S.E.U. (Re), 2003 CanLII 89571; Toronto Parking Authority v. C.U.P.E., Local 43 1974 CarswellOnt 1372 (Adell); and OPSEU (Redmond) v Ministry of Health (1989), GSB No 0928/88 (Roberts); and OPSEU (Hunt et al.) v Ministry of the Attorney General (2003) GSB#0534/01 (Abramsky). Employer’s Reply [29] The Employer disagrees with the Union’s position that this is a continuing grievance. The Employer asserts that the grievance arises from the discrete determination by the Employer as to the Grievor’s entitlement to STSP benefits, communicated in its October 4, 2021 email to the Grievor. The Employer maintains that if there was a breach of the Collective Agreement, it was a single, discrete breach occurring in October 2021. Any accrued losses, it insists, are the result of the breach alleged to have occurred in October 2021. [30] The Employer referred to the following cases: Toronto District School Board and CUPE, Local 4400 (2013-D-3222), Re, 2017 CarswellOnt 9087 (Sheehan); U.G.C.W., Local 246 v. Dominion Glass Co., 1973 CarswellOnt 893 (ON CA); ATU, Local 113 and Toronto Transit Commission (00181752), Re, 2021 CarswellOnt 15025 (Howe); Ontario Public Service Employees Union (Monk et al.) v. The Crown in Right of Ontario (Safety and Correctional Services and Ministry of Children and Youth Services), 2012 CanLII 17215 (ON GSB); MUNFA and Memorial University of Newfoundland (Beck), Re, 2018 CarswellNfld 190 (Outhouse); South Bruce Grey Health Centre and OPSEU (Netzke), Re, 2020 CarswellOnt 14919 (Hayes); and Calgary Health Region and AUPE (Clarke), Re, 2005 CarswellAlta 2797 (Smith). ANALYSIS [31] The preliminary issue to be determined is whether or not the grievance is timely. The Employer asserts the grievance arose out of its October 4, 2021 determination that the Grievor did not qualify for STSP benefits. The Grievor delayed 9 months before filing the grievance, and there is no reasonable basis to extend the time limits for filing the grievance under the Collective Agreement. The Employer denies that this is a “continuing grievance”. The alleged breach arises from the Employer’s October 4, 2021 communication of its interpretation of the Collective Agreement and the Employer says that, while there may have ongoing consequences flowing from that interpretation, these facts do not constitute a “continuing grievance”. [32] The Union asserts that this a continuing grievance. It claims that the failure by the Employer to comply with its obligation under the Collective Agreement to restore the Grievor’s STSP benefits after she returned to work on modified hours in September 2020 until she returned to full time regularly scheduled hours of work in October 2022 on an ongoing basis constitutes a continuing grievance. -7 - [33] Arbitrator Misra’s decision in Bremner, supra, is factually distinct from the present grievance. In Bremner, the Grievor filed a grievance in 2017 when she was no longer in the workplace, alleging that she had been denied STSP benefits in 2014. The Union did not argue the doctrine of a continuing grievance. Arbitrator Misra dismissed the grievance on the basis of a delay. In the present case, the grievance was filed in July 2022 because the Grievor has been denied STSP benefits while she is on an accommodated work schedule. The Union here takes the position that there is an ongoing breach, and relies upon the doctrine of continuing grievance and alleged violation of Article 44 as a defence to the Employer’s timeliness argument. That position was not asserted by the Union in Bremner. [34] In OPSEU (Hunt et al.), supra, Arbitrator Abramsky considered the employer’s preliminary objection to the arbitrability of the grievance on grounds of timeliness. The grievance was filed following a change in the employer’s practice several years earlier impacting the payment of an overtime premium. Arbitrator Abramsky undertook a thorough review of the arbitral jurisprudence, and considered a definition of a “continuing grievance” drawn from the 1981 edition of Evidence and Procedure in Canadian Labour Arbitration (p. 35), as set out in Re British Columbia and B.C.N.U., 1982 CanLII 5128 (BC LA), 5 L.A.C. (3d) 404 (Getz), at page 415: “The appropriate rule for deciding the isolated or continuing nature of the grievance is the rule developed in contract law. The recurrence of damage will not make a grievance a continuing grievance. It is necessary that the part in breach violate a recurring duty. When a duty arises at intervals, and is breached each time, a “continuing” violation occurs, and the agreement’s limitation period does not run until the final breach. When no regular duty exists and the harm merely continues or increases, without any further breach, the grievance is isolated, and the period runs from the breach, irrespective of damage.” [35] Among the cases reviewed by Arbitrator Abramsky is Re Port Colborne General Hospital and O.N.A., in which Arbitrator Burkett defines a continuing grievance as follows: It is clear from a reading of the cases that the question that must be asked is whether or not the conduct that is complained of gives rise to a series of separately identifiable breaches, each one capable of supporting its own cause of action. Allegations concerning the unjust imposition of discipline, the improper awarding of a promotion or the failure to provide any premium or payment required under the collective agreement on a single occasion, while they may have ongoing consequences, constitute allegations of discrete non-continuing violations of the collective agreement. In contrast, an allegation of an ongoing failure to pay the wage rate or any benefit under the collective agreement or an ongoing concerted work stoppage constitute allegations of continuing breaches of the collective agreement. In these cases the party against whom the grievance is filed takes a series of fresh steps each one giving rise to a separate breach. In this latter type of case the time-limits for the filing of a grievance, apart altogether from -8 - any question as to when damages commence to run, must be found to be triggered by the breach closest in time to the filing of the grievance. (Emphasis added.) [36] Vice Chair Abramsky found that the alleged ongoing failure to comply with the overtime requirements set out in the collective agreement constituted a continuing grievance. Arbitrator Abramsky concluded, at page 27: …that the grievance involves an alleged ongoing failure to comply with the overtime requirements set forth in the collective agreement. The grievance alleges that by changing the practice, ‘we have been forced to perform authorized duties on overtime hours without overtime pay, contrary to…the collective agreement.’ It is not the change in practice, per se, that is being grieved. It is the alleged consequence of that change in practice – the alleged breach of the overtime provisions – and that alleged breach is ongoing. [37] I concur with the reasoning of Arbitrators Burkett and Abramsky. The Employer argues that its determination that the Grievor did not qualify for STSP benefits was made on October 4, 2021 and communicated to the Grievor. However, in determining whether a grievance is a “continuing” one, the focus is not on the nature of the employer’s decision (that is, whether the decision is recurring) or on when the Grievor first became aware of the employer’s decision. Rather, the focus is on whether or not the employer has an ongoing obligation under the Collective Agreement (that it is allegedly in breach of). [38] The provision of STSP inter alia sick days is an ongoing and specified benefit under the Collective Agreement. The Employer has a recurring duty under the Collective Agreement to provide STSP benefits in accordance with Article 44. The Grievor, when she was on an accommodated work plan attempted to access her STSP benefits. The Employer responded with a denial of STSP benefits, claiming she was ineligible to receive them. The Grievor’s STSP benefits were not restored until after she returned to her regular work schedule in October 2022. This denial amounts to an alleged violation of Article 44 of the Collective Agreement and the Employer’s ongoing obligation under the Collective Agreement. The Employer’s denial of STSP benefits to the Grievor in October 2021 and again on May 30, 2022 can be assessed on its own for compliance with the Collective Agreement on this basis. [39] When as here, the duty is ongoing but arises at intervals, and it is allegedly breached each time, a “continuing violation” occurs and the Collective Agreement’s limitation period for filing a grievance does not run until the final breach occurs. At the time the grievance was filed on July 15, 2022, the Grievor continued to be denied STSP credits. The Grievor’s STSP credits were not restored until sometime after October 2022, when she returned to regularly scheduled hours. I find this to be a continuing grievance to be determined on its merits. The issue of remedy is separate from the timeliness issue and may be dealt with at a later date. -9 - CONCLUSION [40] For all of these reasons, I dismiss the Employer’s preliminary motion to dismiss the grievance on the basis of timeliness. The matter shall resume for a hearing of its merits, on a date convenient to the parties. Dated at Toronto, Ontario this 31st day of May 2023. “Kelly Waddingham” Kelly Waddingham, Arbitrator