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HomeMy WebLinkAbout2022-7434.Taylor.23-12-07 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# 2022-7434; 2022-10697; 2022-12105 UNION# 2022-0290-0028; 2022-0290-0043; 2023-0290-0007 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Taylor) Union - and - The Crown in Right of Ontario (Ministry of Children, Community and Social Services) Employer BEFORE Kathleen G. O’Neil Arbitrator FOR THE UNION Ed Holmes Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER Jackson D. Lund Treasury Board Secretariat Legal Services Branch Counsel HEARING October 6, 2023 - 2 - Decision [1] This decision deals with two preliminary motions in respect of three grievances filed on behalf of Ms. Andrea Taylor, a Youth Services Officer (YSO) reassigned for health reasons to a clerk’s position. The first motion concerns the employer’s request that one of the grievances be dismissed for lack of a prima facie case, and the second is the union’s request that a grievance be consolidated with two others that have already been agreed to be consolidated. [2] The employer reserved the right to bring other motions, regarding an expansion of scope of one of the grievances or the jurisdiction of the GSB in relation to matters relating to the grievor’s case before the WSIB. Background to the dispute [3] The two grievances that the parties have agreed to consolidate relate to the grievor’s permanent reassignment from a YSO classification to that of Medical Clerk [GSB #2022-7434], and secondly, to her allegations of a breach of Article 9 of the collective agreement, regarding her contracting of Covid-19 at work [GSB #2022-10697]. This second grievance is the one which the employer seeks to have dismissed for want of a prima facie case. The union’s request is to consolidate a third grievance related to improper pay [GSB #2022-12105]. [4] Particulars were filed in respect of all of the grievances, from which I have taken the asserted facts, which are assumed to be true for the purposes of these motions, although the evidence and findings of fact at an eventual hearing might be different. [5] The parties each filed briefs of relevant case law, listed in the Appendix, all of which I have carefully reviewed, even if not specifically referred to below. There is little dispute about the legal principles at play; it is their application to the specific facts that divides the parties. - 3 - Lack of a prima facie case for the Article 9 grievance? [6] The grievance which the employer wishes dismissed relates to the grievor’s contracting Covid-19 at work. The grievance alleges that there was a breach of article 9, among others, in that the employer failed to take reasonable precautions regarding Covid safety in relation to the grievor. The union maintains that only registered nurses received PCR tests, contrary to policy, and that the grievor was not sent home as a close contact when she should have been, and that she has suffered irreversible health effects from contracting Covid at work. [7] In very brief summary, the union’s particulars include the following asserted facts, which, for the purpose of this motion, I assume to be true and provable: While working as a medical Clerk, during a Covid outbreak in a youth correctional facility, the grievor worked in close contact with nurses and other health professionals. The Deputy Administrator set out a memo on April 8, 2022, stating that the Peel Medical Office of Health recommended all staff to be Polymerase Chain Reaction (PCR) tested for Covid. On April 14, 2022, the grievor learned that a nurse with whom she had worked a few days earlier had tested positive for Covid-19. A second nurse was deemed a close contact and sent home that day. When the grievor inquired about being sent home as well, she was advised by a manager that she was fine because she was wearing a mask. The grievor decided to use her personal leave to get tested. The testing centre advised her to quarantine at home for 5 days as per Peel Public Health’s “close contact” criteria. Despite a negative result from that first test, the grievor experienced worsening symptoms, and sought medical attention on April 22, 2022. She then tested positive, and later developed long Covid. She was off work as a result from April 22 until May 9, and then from June 8 to July 21 when she returned to work on a gradual basis. She did not return to a regular work schedule until January 2023. She received WSIB benefits for contracting Covid at work. [8] There is no dispute that the applicable test is that the employer’s motion should succeed if the facts asserted in support of the grievance, if accepted as true, are incapable of establishing the elements necessary to substantiate the violation alleged, otherwise known as failure to make out a prima facie case. [9] The employer’s position is that the union’s asserted facts do not make out a prima facie case. Citing Ontario Public Service Employees Union (Press) v. - 4 - Ontario (Health and Long-Term Care), 2007 CanLII 46151 (ON GSB) (Mikus), counsel maintains that the onus is on the union to prove the degree of risk and a causal link between the risk and the harm to the individual grievor. Even when the union has established a degree of risk, the employer emphasizes that its obligation is not to protect against every risk, but to maintain an appropriate balance between safety of employees and the care and custody of inmates. [10] Further, the employer maintains that it is not enough to show that other precautions would have improved safety; the onus is to show that the employer failed to take reasonable precautions. Employer counsel argues that the union has failed to establish even the first necessary element - an elevated degree of risk - for three reasons, i.e.: - There was no increased health and safety risk when the manager did not permit the grievor to leave, in that there is no nexus to the grievor’s being more likely or not to get Covid from the failure to send her home; - There is no assertion that the employer failed to take precautions prior to the call in which the grievor learned that her colleague had tested positive, no allegations about failure to provide Personal Protective Equipment or take other precautions. - As the particulars show, the grievor tested negative prior to returning to work such that the particulars are silent about an unreasonable risk. [11] In the employer’s view, a careful review of the particulars shows they are not capable of supporting the union’s theory of the case. I am urged to find that the particulars submitted by the union do not establish a failure on the employer’s part to prevent her contracting Covid, or that anything in the employer’s actions or inactions exposed the grievor to unnecessary risk. [12] Further, the employer argues that neither a quarantine or test is a preventative measure; in the employer’s view, the union would need to have particularized a failure on the employer’s part that happened before she was advised that her colleague had tested positive on April 14. The employer sees nothing in the particulars about failing to take preventative measures, or provide PPE, the - 5 - employer argues that the grievance should therefore be dismissed as lacking the necessary elements for a viable case, i.e. any assertion of what the employer failed to do. [13] Citing Ontario Public Service Employees Union (Laderoute) v Ontario (Community Safety and Correctional Services), 2018 CanLII 55847 (ON GSB) (Gee) the employer argues that it would be unreasonable to infer that failing to let the grievor off with pay created an unreasonable risk. Further, it is the specific workplace, rather than a public health advisory which should be in issue here. In the employer’s view, any allegations of what others were told is not relevant since this is an individual rather than a group or policy grievance. [14] By contrast, counsel for the union argues that the grievance should not be dismissed. Citing Ontario Public Service Employees Union (Martin et al) v Ontario (Community and Social Services), 2015 CanLII 60449 (ON GSB) (Anderson) the union is of the view that if the facts could reasonably lead to the conclusion that there had been a breach, in light of the totality of the facts pleaded, rather than any specific one in isolation, the matter should proceed to a hearing. [15] Further, union counsel relies on the oft-cited findings in Blouin Drywall and United Brotherhood of Carpenters and Joiners, (1975) 8 O.R. (2d) 103 (Ont. C.A.), 1975 CanLII 707 (ON CA), 57 DLR (3d) 199, to the effect that arbitration cases should be addressed on the merits, and not dismissed for technicalities. In this light, it is the union’s view that the grievance should not be dismissed unless the finding is that its case is so weak as to warrant dismissal at this early stage of proceedings. In the union’s view, if it is possible that there is a breach, then the grievance moves on to hearing. This is not the appropriate time to weigh the evidence, credibility or the strength of the employer’s case. [16] Counsel also refers to Ontario Public Service Employees Union (Martin) v Ontario (Transportation), 2022 CanLII 35398 (ON GSB) (Dissanayake) for an example of the fact that the GSB can take judicial notice of the dangerous and - 6 - contagious nature of Covid-19, as well as of public precautions such as vaccination, masking, social distancing and limiting numbers taken to lessen potential exposure. Here, the public health advice was that If employees thought they had exposure, they should remove themselves from the workplace and get tested. In counsel’s submission, a reasonable precaution for an employer would be ensuring equal access to those precautions for the grievor. [17] Union counsel emphasizes the fact that the grievor was exposed to nurses while working five days a week, and that the local Medical Officer of Health had recommended PCR testing for all staff. That advice is employer policy as it was issued in an employer memo, in the union’s view. Union counsel frames the issue as whether the employer followed its own policy concerning precautions to this particular grievor. [18] Further, another nurse who had close contact with the nurse who had tested positive was sent home to self-isolate. The grievor asked to go home but was treated differently, and was not provided access to the same reasonable precaution aimed at the prevention of developing Covid; she had to use her own credits to go off. As well, even though her first test was negative, she continued to have symptoms, which significantly worsened, so that she had to be hospitalized overnight, by which time she had tested positive. The union submits that it should be assumed that the employer has a higher duty of care in this type of health care setting during a Covid outbreak because employees are potentially exposed to the virus on a regular basis. [19] Union counsel compares the situation to the Board’s decision in Laderoute, cited above, where a prima facie case was found to have been established on the basis that access to standing orders was necessary to the safe performance of correctional officer jobs and that the alleged facts could support a finding that access to the standing orders was extremely difficult. In the union’s view, the grievor’s difficulty in accessing PCR testing and being sent home from the workplace as a close contact in the same manner as the nurses in the same - 7 - workplace is an analogous set of facts. In the union’s submission, the employer’s policy and actions had already identified the risk of transmission and the reasonable precautions of PCR testing and being sent home if a close contact. [20] In response to the employer’s submissions about reference to other employees not being appropriate in an individual grievance, union counsel emphasized that the claim in the grievance is specific to the grievor and her own rights, and the application of policy to her, rather than a claim of a group or policy nature. [21] The employer disagrees, replying that the issue of any differential application of employer policy to the other nurses is outside of the scope of an individual article 9 grievance, and has no bearing on the issue of how the grievor was put at an elevated risk. *** [22] In considering the above asserted facts in light of the parties’ submissions, it is essential to emphasize that it is the viability of the union’s theory of the case that is to be evaluated, as opposed to the potential availability of a strong defense on the employer’s part. In that light, I find the union’s particulars sufficient to allow the matter to proceed to a hearing. The union’s summary of the theory of its case included the background circumstances of a Covid outbreak, and the issuance of an employer memo, stating that the public health recommendation was that all staff be PCR tested. At this preliminary stage, without having seen the whole memo, I accept that the union’s assertion that this was employer policy may be considered a reasonable inference from the asserted facts. The particulars further state that only registered nurses received PCR tests, and were sent home if considered a close contact, while the grievor was not. The union’s argument is that this differential treatment is capable of establishing a failure to take reasonable precautions for the grievor’s safety. Union counsel notes that, had there been preventative PCR testing, positive cases would have been reported. I infer from this that those reports might have reached the grievor - 8 - earlier than her colleague’s report to her that she had tested positive. This allows for the viability of the union’s theory that if the grievor had been regularly PCR tested, and treated in the same manner as her nurse colleagues, she may not have developed Covid or the long-lasting health effects she has suffered. [23] At the same time, I acknowledge the employer’s concerns about the sequence of events being that the grievor initially tested negative, after she took personal leave to get tested, and other reservations about the union’s case, discussed above. In my view, these will be part of the employer’s defense, the weight of which will be assessed at the end of the day, if the parties are unable to settle the matter. Part of the assessment will be to discern what to make of the fact that the grievor is asserted to have had symptoms throughout, despite the negative test. [24] As for the employer’s argument about an individual grievance needing to focus on the grievor, rather than other employees, it is my view, at this preliminary stage, that evidence of the employer’s actions toward others appears arguably relevant to the issue of the reasonableness of the employer’s actions towards the grievor. As I understand the union’s theory of the case in its simplest form, it is that, if it was reasonable to apply the public health advice to provide PCR testing to nurses, and to exclude nurses who were close contacts from the workplace, it was unreasonable not to apply the same to a clerk who was exposed to the same outbreak conditions. [25] As to the employer’s view that a PCR test is not preventative, in one sense I can accept that to be true, as its purpose is to test what has already occurred. On the other hand, in the sense of its part to play in an ensemble of preventative measures in the workplace in general, proactive PCR testing may be inferred to play a preventative role by catching infections, particularly asymptomatic ones, earlier, together with quarantining of the infected employees and their close contacts, in order to minimize the chance that colleagues would be infected. [26] For the above reasons, the grievance related to contracting Covid at work may proceed to a hearing. Whether or not the grievance ultimately succeeds will - 9 - depend on the strength of the union’s evidence, assessed in light of the evidence presented by the employer, and both parties’ submissions. Consolidate the improper pay grievance? [27] The third grievance, which the union would like to have consolidated with the other two, alleges a contravention of Article 7 of the collective agreement, relating to pay administration, as well as a violation of the Employment Standards Act for improper deduction and withholding of wages. [28] The standard to be applied, found in the Board’s Rule 3, gives the discretion to consolidate grievances when there is a question or law or fact in common. There is also the option of hearing them together, or one after another. [29] The union argues that the facts and relief claimed overlap, justifying consolidation. Counsel for the union notes that the facts asserted in the particulars include that it was the employer’s practice to pay YSO’s the same salary when performing duties as a records clerk, and that the WSIB confirmed that job as a good placement. When she was reassigned to a medical clerk position, the employer unilaterally changed her classification from YSO to support staff, in the medical clerk’s job, which had a lower rate of pay than would have been approved by the WSIB. The employer did not advise the WSIB of the change in position until November 2022, several months after the reclassification. When the 6 months wage protection provided by the collective agreement expired, the grievor’s pay dropped sharply, given the lower wages and fewer hours in the new position. Given that the employer had not advised the WSIB of the change in a timely manner, they did not adjust her partial loss of earnings benefits, and the grievor was underpaid as a result. The problem was not rectified for months, causing financial strain and resulting stress for the grievor. [30] In the union’s view, the wage mix-up is directly related to the assignment and failure to accommodate complained of in the first grievance. There are common facts, and overlap in respect of the remedies. Further, the union argues that - 10 - consolidation will be more efficient, avoiding multiple proceedings and the related costs. Counsel observes that there has been no indication of any prejudice or procedural complications that would arise if the matters were consolidated. [31] Union counsel relies on the Ontario Public Service Employees Union (Overdevest) v Ontario (Public and Business Service Delivery), 2022 CanLII 124194 (ON GSB) (Petryshen) decision, as close to this case as it dealt with issues of accommodation as well as pay, in which the GSB found a sufficient factual and legal link to make it practical to hear the matters together. [32] By contrast, the employer opposes the consolidation of the grievance related to wages. Counsel for the employer argues that the issue of underpayment from the WSIB will require a different stream of analysis than the accommodation grievance. The wages grievance, in the employer’s view, is essentially a negligence claim, in that the employer failed to notify the WSIB. In the employer’s view, this is an entirely different and discrete issue, separate from the grievance about the reassignment of the grievor to the medical clerk position. [33] The employer invites a conclusion that none of the circumstances laid out in the Board’s rule are sufficiently present to warrant consolidation. Employer counsel summarized the employer’s position as follows: - there is no common legal issue between the allegation of failure to accommodate and the wage grievance; the two grievances are only tangentially related. - the two grievances do not arise out of the same transaction; the decision to place the grievor in the medical records position is its own incident, with a separate timeline from the allegations in the wage grievance. - consolidation could potentially preclude the employer from bringing a successful motion concerning the expansion of the scope of the grievance. - the wages grievance can be heard as its own separate grievance. - 11 - - Although counsel acknowledges some inefficiency in briefing other counsel, he submits that the same counsel could be retained to minimize that result. [34] In reply, union counsel indicated that it had already been agreed, that if all three grievances were consolidated, it was without prejudice to the employer’s potential expansion argument. *** [35] Rule 3 provides as follows: Where two or more proceedings are pending before the GSB and it appears to the GSB that, a. They have a question of law or fact in common; b. The relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; c. For any other reason an order ought to be made under this rule, the GSB, on such terms as it considers advisable, may abridge the time for placing a grievance on the hearing list, and may order that: d. The proceedings be consolidated, or heard at the same time or one immediately after the other; and or e. Any of the proceedings be stayed until after the determination of any other of them. [36] I have carefully considered all of the asserted facts, in light of the parties’ submissions and the provisions of the rule. [37] Although the accommodation grievance and the pay grievance ask for different remedies, and cover different periods of time, I am persuaded that the remedies claimed arise out of the same series of incidents. They are related in that the sequence of events complained of in the accommodation grievance enabled the situation complained of in the pay grievance to occur. The interplay between the WSIB approved return to work, and the subsequent employer actions in reclassifying the grievor, complained of in the accommodation grievance, was a - 12 - precondition to the effect on the grievor’s pay that is complained of in the third grievance. I endorse the idea that it makes more sense from an efficiency point of view to hear them together, rather than separating them and running the risk that two different arbitrators would be hearing the cases arising out of the same sequence of events, and potentially face different evidence on overlapping facts, leading to different findings. [38] Employer counsel expressed the view that consolidating the grievances would muddy the waters as to which grievance was which. Although that is not a necessary result of consolidation, the equally available option of hearing them together addresses that concern, and keeps the identity of the two grievances separate. [39] I therefore am of the view that there is sufficient reason to hear the pay grievance together with the other two grievances. *** [40] For the above-noted reasons, the employer’s motion to dismiss the grievance related to the grievor’s contracting Covid-19 at work for want of a prima facie case is dismissed, and the union’s motion to consolidate the pay grievance with the other two is allowed to the extent that the pay grievance will be heard together with the other two. [41] Dates will be set to continue the above matters as soon as possible. Dated at Toronto, Ontario this 7th day of December, 2023. “Kathleen G. O’Neil” _______________________ Kathleen G. O’Neil, Arbitrator - 13 - Appendix Authorities cited by the Parties By the Employer 1. Ontario Public Service Employees Union (Press) v. Ontario (Health and Long-Term Care), 2007 CanLII 46151 (ON GSB) (Mikus); 2. OPSEU (Taylor-Baptiste) and Ministry of Correctional Services, GSB # 1988-469, (April 15, 1992), (Dissanayake); 3. Ontario Public Service Employees Union (Martin) v Ontario (Transportation), 2022 CanLII 35398 (ON GSB) (Dissanayake); 4. OPSEU (Brown-Bryce) v. Ministry of Community Safety and Correctional Services (2016), GSB No. 2014-1158 (Dissanayake) 2016 CanLII 41675 (ON GSB) 5. Ontario Public Service Employees Union (Martin et al) v Ontario (Community and Social Services), 2015 CanLII 60449 (ON GSB) (Anderson) 6. Ontario Public Service Employees Union (Laderoute) v Ontario (Community Safety and Correctional Services), 2018 CanLII 55847 (ON GSB) (Gee) 7. Ontario Public Service Employees Union (Samsone) v. Ontario (Ministry of Community Safety and Correctional Services), 2006 CanLII 31467 (ON GSB) (Harris) 8. Ontario Public Service Employees Union (Ferraro) v. Ontario (Ministry of Community, Family and Children's Services), 2002 CanLII 45779 (ON GSB) (Mikus) 9. Ontario Public Service Employees Union (McClelland) v Ontario (Community Safety and Correctional Services), 2013 CanLII 73996 (ON GSB) (Briggs) 10. Ontario Public Service Employees Union (Upson) v Ontario (Community Safety and Correctional Services), 2013 CanLII 56967 (ON GSB) (Harris) By the Union 1. Ontario Public Service Employees Union (Kennett) v Ontario (Ministry of Community Safety and Correctional Services), 2014 CanLII 64819 (ON GSB) (Misra) - 14 - 2. Ontario Public Service Employees Union (Cartier) v. Ontario (Ministry of Health and Long-Term Care), 2006 CanLII 17525 (ON GSB) (Stephens) 3. Ontario Public Service Employees Union (Pozderka) v Ontario (Transportation), 2019 CanLII 97258 (ON GSB) (Leighton) 4. Ontario Public Ontario Public Service Employees Union (Overdevest) v Ontario (Public and Business Service Delivery), 2022 CanLII 124194 (ON GSB) 5. Ontario Public Service Employees Union (Martin et al) v Ontario (Community and Social Services), 2015 CanLII 60449 (ON GSB) (Anderson) 6. Association of Management, Administrative and Professional Crown Employees of Ontario (McCallum) v Ontario (Attorney General), 2021 CanLII 26597 (ON GSB) (Anderson) 7. Ontario (Ministry of Finance) and OPSEU (Greenbank), 2005 CarswellOnt 11325, 83 C.L.A.S. 155 (GSB Mikus) 8. Blouin Drywall and United Brotherhood of Carpenters and Joiners (1975) 8 O.R. (2d) 103 (Ont. C.A.) 1975 CanLII 707 (ON CA), 57 DLR (3d) 199 9. Ontario Public Service Employees Union (Martin) v Ontario (Transportation), 2022 CanLII 35398 (ON GSB) (Dissanayake)