HomeMy WebLinkAbout1995-1694.Monk et al.12-02-15 DecisionCrown Employees
Grievance Settlement
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GSB#1995-1694
UNION#1995-0255-0001
Additional File numbers listed in Schedules “A” and “B”
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Monk et al.)
Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services and
Ministry of Children and Youth Services)
Employer
BEFORE Owen V. Gray Vice-Chair
FOR THE UNION David Wright
Ryder Wright Blair & Holmes LLP
Barristers & Solicitors
FOR THE EMPLOYER Jennifer Richards
Ministry of Government Services
Labour Practice Group
Counsel
HEARING January 26, 2012.
DECISION
[1] The parties have agreed that the matters to be addressed in this decision
are as follows:
The Employer raised a preliminary objection to the timeliness of all
grievances in the Monk et al group which were filed after all
institutions had gone smoke free in 2001.
The Union conceded that the grievances had been filed outside the
time permitted in the collective agreement for the filing of grievances
but asserted that these were appropriate cases for the exercise of the
Board’s discretion to extend time [limits].
The parties held discussions and agreed to bring forward a single
case, that of Greg [sic] Gray (2005-2888), as a test case and presented
an agreed statement of facts as to the reasons why Mr. Gray had filed
his grievance at the time he did.
The Board issued a decision on June 28, 2010 dismissing the
grievance of Greg Gray as untimely and determining that this was
not an appropriate case for the exercise of the discretion to extend
time limits.
The Parties consulted with one another to determine whether
agreement could be reached on a process for the disposition of the
remaining timeliness objections in the other grievances before VC
Gray in these proceedings.
The Union sent a letter to every grievor captured by the Employer’s
timeliness objection forwarding a copy of the Greg Gray decision and
asking that the grievors provide the Union with answers to specific
questions about the timing of the filing of their grievances, and
asking them to provide details as to why their case should be treated
differently than Greg Gray’s. Grievors were specifically advised that
if they did not respond within a fixed time the Union would “assume
that you have no facts which distinguish your case from that of Mr.
Gray” and that the Union would then proceed on that basis.
The Union received a response from 12 grievors and has provided the
Employer with further particulars for each of those 12 grievors based
on such responses.
For the 12 grievors who responded and for whom additional
particulars have been provided, the Employer will bring a prima facie
case motion arguing that, even if the particulars provided for each of
the 12 grievors (original plus response to the letter) were proven to be
true, such particulars do not provide a sufficient basis for the Board
to exercise its discretion to extend time limits.
If the motion is granted the grievances will be dismissed.
2
If the Board rules that the Union has made out a prima facie case to
grant an extension, the Employer maintains the right to continue
with its timeliness motion and, in that continued motion, to challenge
the particulars provided and to present and rely on its own evidence,
as necessary.
For the 200+ grievors who did not provide any additional information
in response to the Union’s letter, the Employer will bring motion
asking the Board to rule that, as the Union has provided no facts to
distinguish the situation of each of those grievors from the facts and
conclusions in the Greg Gray decision, there is no prima facie case for
an exercise of the discretion to extend time limits for any of these
grievances and that therefore the grievances must be dismissed.
In arguing such motion the parties will not reference the original
particulars provided for these grievors. Instead, the Employer will
simply rely on their lack of response as evidence that
the Union cannot offer different facts to distinguish them from Greg
Gray. The Union will not dispute this assertion.
Again, if the motion is granted, the grievances will be dismissed.
Again, if the Board rules that the Union has made out a prima facie
case to grant an extension, the Employer maintains the right to
continue with the timeliness motion and, in that continued motion
challenge the particulars provided and present and rely on its own
evidence, as necessary.
I should say that the process adopted parties as described in this agreement,
including particularly the approach taken by the union in assessing the
implications for other grievances of the results in the test case, seems entirely
sensible in the circumstances.
[2] The grievances in question here are those listed in Schedule “B.” During
argument, union counsel clarified that all of those grievances concern exposure
to second hand smoke that occurred before the use of tobacco in institutions was
banned in or about 2001. Some of the grievors may have been exposed to second
hand smoke occasionally thereafter, despite the ban, but the parties have agreed
that complaints about such exposure will not be addressed in these proceedings.
[3] The union concedes that the additional information provided by N. Baxter
(2005-2982) and R. Williams (2005-3326) contains no facts that would
distinguish their circumstances from those of Gregg Gray in any material
respect. Union counsel argued vigorously that the time limit should nevertheless
be extended for those two, and for all the grievors who provided no additional
3
information, for the reasons advanced by the union in argument in the Gregg
Gray case.
[4] For the reasons given in my earlier decision concerning the Gregg Gray
grievance (hereafter, “the Gregg Gray decision”), I am not persuaded that there
is a prima facie case for extension of the time for filing the grievances in respect
of which the grounds on which the extension is sought are not materially
different from those addressed in that earlier decision.
[5] This leaves 10 grievances filed in or after 2005 concerning alleged
exposure to tobacco smoke in and before 2001, for which the union seeks multi-
year extensions of the applicable time limit on the basis of circumstances said to
be distinguishable from those addressed in the Gregg Gray decision.
General Observations
[6] Article 22 of the collective agreement in force in when these grievances
were filed provided, in part, as follows:
22.1 It is the intent of this Agreement to adjust as quickly as possible any
complaints or differences between the parties arising from the
interpretation, application, administration or alleged contravention of
this Agreement, including any question as to whether a matter is
arbitrable.
STAGE ONE
22.2.1 It is the mutual desire of the parties that complaints of employees be
adjusted as quickly as possible and it is understood that if an
employee has a complaint, the employee shall meet, where practical,
and discuss it with the employee’s immediate supervisor within thirty
(30) days after the circumstances giving rise to the complaint have
occurred or have come or ought reasonably to have come to the
attention of the employee in order to give the immediate supervisor
an opportunity of adjusting the complaint.
22.2.2 If any complaint or difference is not satisfactorily settled by the
supervisor within seven (7) days of the discussion and/or meeting, it
may be processed within an additional ten (10) days in the following
manner:
STAGE TWO
22.3.1 If the complaint or difference is not resolved under Stage One, the
employee may file a grievance, in writing, through the Union, with
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the senior human resources representative for the ministry or his or
her designee.
…
22.14.1 Where a grievance is not processed within the time allowed or has not
been processed by the employee or the Union within the time
prescribed it shall be deemed to have been withdrawn.
[7] The union concedes, as it did in the Gregg Gray case, that in each of the
10 cases the grievors knew or should have known in or before 2001 of the
circumstances on which their grievances are based. In each case the grievance
was filed in or after 2005. The union concedes that this was beyond the time
limit specified in Article 22.
[8] The Board has a statutory discretion to extend the time for the taking of
any step in the grievance procedure under a collective agreement, despite the
expiration of the time, where the Board “is satisfied that there are reasonable
grounds for the extension and that the opposite party will not be substantially
prejudiced by the extension.” In exercising that discretion the Board considers
the factors identified by Arbitrator Burkett in Becker Milk Co.1
and by
Arbitrator Schiff in Greater Niagara General Hospital.2
Arbitrator Burkett
identified three factors that should be considered: the reason for the delay given
by the “offending party” (that is, the party who has failed to comply with the
time limit), the length of the delay and the nature of the grievance. He explained
that
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. … The purpose
of the section is to alleviate against technical bars. If the offending party has
been negligent in its processing of the grievance but the delay has been of
short duration an arbitrator would be permitted to rely on the short period of
delay as constituting reasonable grounds for an extension. If the grievance
1
Becker Milk Company and Teamsters Union, Local 647 (1978), 19 L.A.C. (2d) 217
(Burkett).
2
Greater Niagara General Hospital and O.N.A. (1981), 1 L.A.C. (3d) 1 (Schiff).
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involves the termination of an employee, as distinct from some lesser form of
discipline, this is also an equitable consideration which must be taken into
account, in deciding if there are reasonable grounds to extend the time-limits.
the employer could reasonably have assumed the grievance had been abandoned.
[9] Those factors were considered in the Gregg Gray decision:
ions for his safety
or existed independently of, the employer conduct
he may have about whether the complaint can be the subject
e factors favour granting an extension
pite the grievor’s lack of diligence.
lays in
discharge cases in which this Board has refused to extend time limits.
even if that had been the nature of Gregg Gray’s grievance that factor would not
In Greater Niagara General Hospital, Arbitrator Schiff identified three further
factors: whether the delay occurred in initially launching the grievance or at
some later stage, whether the grievor was responsible for the delay and whether
[14] The delay here was in initiating the grievance, rather than later in the
grievance process. He did not file a grievance after he raised concerns in 1996
that he says were ignored, nor after it accommodated him in 2000, so the
employer would have had no reason to suppose that the grievor had an
ongoing complaint that it was not making reasonable provis
and health. The grievor is solely responsible for the delay.
[15] The reason given for the grievor’s delay is that until shortly before he
filed the grievance he did not know or believe that he had a right to do so. It
is not suggested that the grievor’s ignorance of his rights was due to a
disability that arose from,
alleged in the grievance.
[16] The combined effect of Article 22.14.1 and the objective test in Article
22.2.1 is that an employee must be diligent in deciding whether or not to
grieve about an adverse workplace experience, and in resolving any questions
or doubts she or
of a grievance.
[17] The grievor knew he had been exposed to second hand smoke, and that
this might have (and, indeed, had had) an adverse effect on him, at the time
of the exposure. There is no suggestion that the grievor tried to find out
whether those matters could be the subject of a grievance at any time prior to
learning that exposure to second hand smoke had led to financial awards in
legal proceedings of other sorts. Nor is it suggested that anything prevented
him from doing so. The grievor was simply not diligent. In those
circumstances, the nature of the grievance and the length of the delay must
be considered, to assess whether thos
des
…
[19] The delay itself is very lengthy, much longer even than the de
Although the nature of Gregg Gray’s grievance was not expressly addressed in
this passage, the thrust of the observation in paragraph [19] was that in
considering this factor the greatest weight is given to discharge grievances, and
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have prevailed over the length of delay factor when the unexplained delay was as
lengthy as his had been.
[10] The question posed in each of these 10 cases is whether I can conclude
that the particulars provided by the grievor, assuming them to be true, raise a
prima facie case for extension of the time for filing the grievance. It is not
suggested with anything in those particulars distinguishes any of the 10 from
the Gregg Gray case, other than the explanation offered for the delay.
[11] In some cases it is alleged that when the grievor raised concerns about
cigarette smoke, members of management did not take the concerns seriously,
“laughed off” the concerns, said no provision of the collective agreement was
being violated, or otherwise said or implied that a complaint or grievance about
exposure to tobacco smoke would have no merit. In other words, the employer
took a position with the grievor that is contrary to the one that the grievor now
seeks to advance in her or his grievance.
[12] When a grievance concerns a complaint that has been raised orally with
the employer, the next time limit that must be met by the grievor and her or his
union is the time limit for filing a written grievance if the employer fails to
resolve the compliant to the employee’s satisfaction within the time prescribed.
The fact that the employer has dismissed, disagreed with or failed to act on the
oral complaint, or denied that the collective agreement requires that it do what
the employee asks, is an inherent part of the context in which the employee is
required to act diligently if she or he wishes to pursue the complaint further. An
allegation that the employer dismissed the complaint when it was presented
orally cannot provide reasonable grounds for failure to comply with the time
limit for responding to the dismissal by filing a written grievance.
[13] In some of these cases, the circumstances said to be distinguishable
include an allegation that the employer told the grievor, or “led” her or him “to
believe,” that exposure to second hand cigarette smoke was “just a fact of life” or
a “term of employment” when working in a correctional institution. Again, the
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fact that the employer expressed an opinion about its obligation that is at odds
with the position eventually taken in the grievance is the very context in which
the collective agreement requires expedition in filing such a grievance through
the union. In the grievance process each side attempts to persuade the other of
the merit of its position. If the explanation for delay in filing a grievance is
essentially that the grievor was initially persuaded by the employer and chose
not to grieve, then changed her or his mind years later, there is no basis for
extending the time limit for filing the grievance.
[14] Union counsel referred in argument to the award in Re Health Employer’s
Association of British Columbia and British Columbia Nurses’ Union 2008, 180
L.A.C. (4th
) 266 (Taylor), which he characterized as a case in which an arbitrator
had extended the time for grieving by 8 years, albeit one in which the employer
had contributed to the delay. The grievance in that case arose out of an
employer’s failure to provide the grievor with information that, as the arbitrator
found, the employer had been under a legal obligation to provide to her. When
the grievor became aware of the information several years later she grieved. The
arbitrator concluded (at page 277) that “the Grievor did not become aware (in the
sense of discovering the material facts) of the matter giving rise to the difference,
until shortly before filing the grievance.” On that basis he concluded that the
grievance was timely. He then added “In the alternative, I would exercise my
discretionary jurisdiction … to relieve against the breaches of the time limits,
there being a satisfactory explanation and no evidence of prejudice to the
Employer.” He did not go on describe the alternate view of the facts on which it
could be said there was a breach of the time limits for which there was
nevertheless a satisfactory explanation for the delay.
[15] In any event, it is not alleged in any of these cases that some material
circumstance giving rise to any of the grievance was not known to the grievor
until shortly before the grievance was filed. Nor do the material circumstances
on which any of these grievances are based include an alleged failure of the
employer to provide the grievor with information that it was legally obliged to
8
provide. Again, the union concedes that these grievors knew or should have
known in or before 2001 of the circumstances on which their grievances are
based.
[16] In some of these cases it is alleged that members of management not only
said that exposure to smoke was a “fact of life” or “term of employment” in
correctional institutions, but added that if the employee did not like that she or
he should find different work. This can be interpreted in more than one way. It
may be nothing more than a rhetorical device: identifying a logical consequence
of the supposed “fact of life” or “term of employment” and the grievor’s apparent
dissatisfaction with it. On that view, the statement is no different from the
examples already mentioned of the employer’s having disagreed with the
grievor’s oral complaint.
[17] On the other hand, such a statement might be interpreted as a veiled
threat that any grievance about exposure to smoke would result in the
employee’s having to find work elsewhere, regardless of the merits or outcome of
the grievance. If the employee interprets it that way, as a threat of reprisal, and
there is an objective basis for that interpretation, would that provide reasonable
grounds for extension?
[18] I pause to observe that although some of the grievors refer vaguely to
their having been threatened by management, it is not apparent to me from
union counsel’s submissions that the union is prepared to characterize those
allegations in quite the stark terms used in the previous paragraph. I will
address the stark hypothetical, however, in case I have misunderstood the
union’s position in this regard.
[19] Put more generally, then, the question is whether an allegation that the
employer threatened reprisal if the grievor filed a grievance would, if true,
provide reasonable grounds for an extension of the time for filing that grievance.
Answering the question involves expanding the delay analysis to include the
delay in raising the explanatory allegation of employer misconduct.
9
[20] An allegation that the employer threatened or intimidated an employee
into not filing a grievance could itself be raised as a grievance (discrimination on
the basis of union activity contrary to Article 3.2), which would be subject to the
very time limits in issue here. Extending the time for filing a grievance because
of such employer misconduct is analogous to providing a remedy for that
misconduct. Should a request for a remedy for employer misconduct be
entertained despite the delay in complaining of it? That question has to be
addressed in accordance with the considerations already described. It cannot be
said that an explanation for a grievor’s multi-year delay in complaining of such
gross employer misconduct is self evident, not when it would be well known to
the grievor that her or his trade union stands ready, willing and able to
challenge any perceived threat to its members’ rights. While an allegation that
the employer threatened reprisal if a grievance was filed might, if true, afford
reasonable grounds for some modest extension of the time for filing the
grievance, it must be otherwise when years unexplainedly pass before the
complaint about alleged threats of reprisal is raised.
File #2006-0466 – Steven A. Bailie
[21] Union counsel argues that the following allegations distinguish this
grievor’s request for an extension of time limits from the request considered in
the Gregg Gray case:
1. The Grievor raised concerns about exposure to second hand smoke with
managers [names omitted] and other managers in [the workplace] on
many occasions starting in the early 1990’s.
2. The Grievor’s concerns were never taken seriously and were laughed off.
He was led to believe that exposure to smoke was a term of employment
and that no provision of the collective agreement was being violated.
It is not clear what “concerns” were allegedly raised with the employer and
“never taken seriously” and “laughed off.” The particulars originally delivered
with respect to this grievance alleged that the grievor had never raised concerns
with the employer about second hand smoke. But the focus here is not on the
merits of the grievance – it is on whether the time limit for filing a grievance
10
with respect to these alleged concerns should be extended if these allegations are
true, bearing in mind that the circumstances on which the grievance is based
became known to the grievor in and before 2001. I assume for these purposes
that the concerns raised were about exposure to second hand smoke, and that it
was the employer’s response to expression of those concerns that allegedly led
the grievor to believe that exposure to smoke was a term of employment.
[22] For reasons provided earlier in this decision, these facts do not provide a
reasonable explanation for the multi-year delay in filing a written grievance
through the union with respect to a complaint that arose in or before 2001. As
the other pertinent considerations are not materially different from those
addressed in the Gregg Gray decision, I conclude that there is no prima facie
case for extending the time limit for filing this grievance.
File # 2005-2752 – Lois Dickson
[23] The facts said to distinguish the request for extension of the time for filing
this grievance from the request in the Gregg Gray case are these:
1. The Grievor was one of only five women working at the Guelph
Correctional Centre when she was hired in 1975. Smoking was accepted
as normal behaviour through the 1990’s for CO’s, managers and inmates
and inmates were encouraged to smoke. Cigarettes were used as a “tool”
to pay inmates for doing extra jobs.
2. The Grievor, as a women [sic] in a male dominated workplace, felt very
intimidated by management and felt like if she raised concerns about
smoking within the institution that she would lose her job.
3. The Grievor raised concerns about exposure to second hand smoke with
several supervisors, including the then Superintendant of Metro West
Detention Centre, [R. B.]. [R. B.] did not treat the Grievor’s concerns
seriously and he indicated to the Grievor that exposure to smoke in the
workplace was not a concern to the Ministry.
[24] The union does not allege that there is any objective basis for the fear
alleged in paragraph 2. Even if it had, for the reasons given earlier these facts
would not have been sufficient to establish a prima facie case for a multi-year
extension of the time for filing the grievance through the union.
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File # 2005-2836 – Irene Gowan
[25] The facts said to distinguish the request for extension of the time for filing
this grievance from the request in the Gregg Gray case are these:
1. The Grievor was one of very few women working at the Guelph Detention
Centre when she was hired in 1980. The Grievor felt intimidated by
management and felt that if she made waves by filing a grievance she
would lose her job. There was no protection for human rights in the
collective agreement during the early years of the Grievor’s employment.
2. In 1986, the Grievor was hospitalized due to serious difficulties
breathing. Following discharge from a week in the hospital, the Grievor
was on sick leave and was unable to return to work for twenty-two
months. She was prescribed Prednisone which had several side effects.
3. During her leave from work, the Grievor was examined by Dr. House, a
doctor employed by the Ministry. Dr. House sent a letter to the Grievor’s
employer at the Wellington Detention Centre which stated that the
Grievor was to stay as far away from cigarette smoke as possible.
4. When the Grievor returned to work, Dr. House’s instruction was not
honoured by the employer and the Grievor was consistently placed in
areas where she was exposed to second hand smoke.
5. Management was aware that many others in the workplace suffered from
second hand smoke but took no steps to remedy this. Many managers
were smokers as well.
[26] An earlier grievance by this grievor, filed under the name Irene England,
is one of the grievances listed in Schedule “A” that are not affected by this
preliminary objection. That grievance, which was filed in February 1992, alleged
that the employer had breached Article 18.1 (now 9.1) by exposing workers to
second hand cigarette smoke. Neither counsel made any submission about
whether the matters referred to in paragraphs 2, 3 and 4 fall within the scope of
the 1992 grievance. Paragraph 4 seems to suggest that the employer conduct
complained of in that grievance continued, or similar conduct occurred, after it
was filed. It is not apparent whether the 2005 grievance is concerned with
anything other than conduct that is the same as or similar to the conduct
complained of in the earlier grievance.
[27] It is often the case that the conduct complained of in a grievance
continues, or similar conduct occurs, after the grievance is filed. It may or may
not be understood that such post-filing conduct will be addressed in the
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arbitration of the grievance if the underlying issue is not settled in the
meantime. There may or may not be a debate about the scope of the grievance,
including debates about what post-filing conduct, if any, can be remedied when
the dispute is later arbitrated.
[28] The parties agree, however, that I should determine whether there is a
prima facie case for extending the time for filing this grievance without first
determining the scope of the earlier one or addressing any of the sorts of issues
that might arise concerning whether conduct that occurred after the earlier
grievance was filed can be dealt with in the arbitration of that earlier grievance.
They agree that no outcome of this preliminary issue can affect the scope of the
earlier grievance, whatever that scope may be.
[29] Assuming, without deciding, that this grievance raises claims that are not
within the scope of the earlier grievance, the question is whether there are
reasonable grounds to extend to November 2005 (when this grievance was filed)
the time limit for initiating a grievance with respect to those claims, when the
circumstances giving rise to them occurred and were known the grievor years
earlier, in and before 2001.
[30] As in the Dickson case, the union is not prepared to allege that there is
any objective basis, in employer conduct or otherwise, for the alleged fear that if
the grievor filed a grievance about smoking in the workplace she would lose her
job. In any event, if there were a basis in the employer’s conduct for fear of
retribution, for the reasons set out earlier that conduct cannot provide
reasonable grounds for a multi-year delay without a reasonable explanation for
the delay in complaining about the conduct. Accordingly, if and to the extent that
this grievance raises claims that are not or will not be within the scope of the
earlier grievance, there is no reasonable explanation for the delay and no prima
facie case for extension of the time for filing this grievance.
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2005-2679 – John Heathcote
[31] The facts said to distinguish the request for extension of the time for filing
this grievance from the request in the Gregg Gray case are these:
1. In addition to the grievance filed by the Grievor on October 31, 2005,
which is the subject matter of the timeliness objection raised by the
Ministry, the Grievor had also filed 2 grievances on July 3, 1996
respecting the issue of smoking in the workplace.
2. As noted in the earlier particulars filed on behalf of the Grievor, the
Grievor had been extremely active in raising the issue of smoking in the
workplace, and the harm he was suffering as a result, from 1988 until the
time of filing his grievances. The Grievor continued to raise issues
respecting smoking in the workplace through to May 2000.
3. The Grievor was transferred within the Ministry to the Burtch
Correctional Centre when the Wellington Detention Centre closed in July
2001 and was not harassed or experience other problems respecting
smoking in the workplace while at Burtch.
…
5. When co-workers began to file grievances respecting concerns about the
effects of smoking in the workplace in 2005, the Grievor also filed a
grievance as he had been fighting this issue for so many years and did not
want management to feel he was no longer concerned with the issue.
[32] As in the Gowan case, this grievor filed earlier grievances with respect to
exposure to cigarette smoke. The particulars originally filed with respect to this
2005 grievance refer to events that occurred both before and after the filing of
the grievor’s earlier 1996 grievances, including exposure to smoke that occurred
after the earlier grievances were filed. Neither counsel made any submission
about whether the allegations in those particulars fall within the scope of those
earlier grievances. The observations I made in paragraphs [27] and [28] apply
equally here.
[33] Assuming, without deciding, that this grievance raises claims that are not
within the scope of the earlier grievances, the question is whether there are
reasonable grounds to extend to October 2005 (when this grievance was filed) the
time limit for initiating a grievance with respect to such claims, when the
circumstances giving rise to the claims occurred and were know to the grievor in
and before 2001.
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[34] If and to the extent that this grievance raises claims that are not within
the scope of the earlier grievances, there is no reasonable explanation for the
delay in filing it, and no prima facie case for extension of the time for doing so.
File #2005-2751 – Steve Measham
[35] The facts said to distinguish the request for extension of the time for filing
this grievance from the request in the Gregg Gray case are these:
1. The Grievor raised concerns with several supervisors about smoking in
the workplace. He complained to [names omitted].
2. Long before 2001, the Grievor had a meeting with [manager names
omitted]. The employer listened to the Grievor’s concerns and undertook
to enforce no smoking in unauthorized areas. Following the meeting,
however, this promise was never honoured.
3. The Grievor was threatened by management after filing his complaint
with the employer. One manager called the Grievor “a rat” and suggested
that he leave corrections to find a new job.
4. The Grievor was lead to believe that smoking was part of the corrections
“culture” and that if he did not like it, he should get out.
5. The Grievor did not file a grievance before 2001 because of the continual
effort of the union to address the concern of smoking in provincial
Correctional Institutions and the promise from the employer to address
the issue.
[36] The allegation that the grievor was threatened is vague, but troubling.
For reasons given earlier, however, it cannot provide a reasonable explanation
for a multi-year delay in filing this grievance, in the absence of a reasonable
explanation for the delay in complaining about the threats. Nor can the other
allegations. I find that there is no reasonable explanation for the delay and no
prima facie case for extension of the time for filing this grievance.
File # 2007-0581 – Anthony Nelli
[37] The facts said to distinguish the request for extension of the time for filing
this grievance from the request in the Gregg Gray case are these:
1. In the early 1990s, the Grievor raised concerns with the employer about
smoking in the workplace. At this time, the Grievor spearheaded an
initiative for a smoke-free workplace with his fellow employees at Sault
Ste. Marie Jail.
15
2. The Grievor filed a grievance in the 1990s about exposure to second hand
smoke. The grievance was never settled. He chose to file a second
grievance to keep the issue alive.
3. The Grievor filed a complaint under the Ontario Health and Safety Act in
the early 1990s. The result of this complaint led to Sault Ste. Marie Jail
being the first non-smoking institution in Ontario.
[38] I note that the particulars provided with respect to the merits of the
grievance allege that the Sault Ste. Marie Jail was ordered to go “smoke free” in
1997. They also allege that
9. The Grievor raised concerns with his Superintendent … about the poor
air quality and having to work in a “blue haze.” The only response from
[the Superintendent], who smokes was, “its part of your job.”
The particulars do not indicate when this conversation allegedly took place.
[39] Notwithstanding what the grievor says in paragraph 2, union counsel was
not aware of any previous grievance under the collective agreement by this
grievor. There is no suggestion that any such grievance remains outstanding.
[40] I note again the union’s position that, like the others, this grievance is
concerned with exposure to smoke prior to the grievor’s workplace becoming
“smoke free” in (or perhaps in this case, before) 2001. The allegations relied upon
do not provide a reasonable explanation for the delay from that time to April
2007, when the grievance was filed. I find that there is no prima facie case for
extension of the time for filing this grievance.
File # 2007-0423 – Richard Prestage
[41] The facts said to distinguish the request for extension of the time for filing
this grievance from the request in the Gregg Gray case are these:
1. In 2006, the Grievor was the worker chair of the Joint Occupational
Health and Safety Committee [JOH&SC].
2. Prior to filing the present grievance, the JOH&SC made a
recommendation to the employer to enforce nonsmoking at the institution
by charging offending inmates under the city’s smoke-free by-laws. The
employer refused to act on this recommendation.
3. As a result of the employer refusing to take the issue seriously, the
Grievor filed his grievance.
16
4. Despite the removal of tobacco from the institution in 2002, there
continues to be a problem of inmates smuggling tobacco and smoking in
non designated areas at Elgin Middlesex Detention Centre.
Again, the union has made it clear that the grievances before me, including this
one, are concerned with exposure to second hand smoke in correctional
institutions prior to the institutions’ going smoke free in or around 2001, and not
with occasional (by comparison) exposure thereafter to smoke from, for example,
contraband tobacco. The particulars that the union originally provided with
respect to the merits of this grievance alleged that the grievor was exposed to
second hand smoke between July 1985 and “2002 when tobacco was removed
from the institutions.”
[42] The grievance was filed April 2006 with respect to events that occurred
and were know to the grievor in and before 2002. The allegations relied upon in
support of an extension to the time limit do not provide a reasonable explanation
for the delay. I find that there is no prima facie case for extension of the time for
filing this grievance.
File #2006-3116 – Frank Renda
[43] The facts said to distinguish the request for extension of the time for filing
this grievance from the request in the Gregg Gray case are these:
1. The Grievor continually raised concerns with Deputy Superintendant
[name omitted] about second hand smoke. The employer’s response was
that smoking was an inherent part of the job and that if employees are
not satisfied, they should look for another job.
2. The Grievor complained to his supervisors about smoking in the
workplace. One supervisor’s response was, “you don’t have a leg to stand
on and [your complaint] will never be heard”.
In essence, these are allegations that the employer expressly or impliedly denied
that it had any obligation to protect the grievor from exposure to second hand
smoke and told the grievor that a complaint to that effect would be without
merit. Union counsel says the union does not characterize the statement
attributed to the supervisor as a threat that the employer would interfere with
the grievor’s right to grieve or engage in retribution if he exercised it. This is
17
simply a case in which the grievor’s complaint was dismissed by the employer at
stage one.
[44] The allegations relied upon in support of an extension to the time limit for
moving to stage two by filing a written grievance do not provide a reasonable
explanation for the delay in doing so. I find that there is no prima facie case for
extension of the time for filing this grievance.
File # 2005-3332 – Marilynn Schrader
[45] The facts said to distinguish the request for extension of the time for filing
this grievance from the request in the Gregg Gray case are these:
1. The Grievor felt intimidated by the employer and felt that if she raised
concerns about second hand smoke she would face a reprisal and would
be encouraged to find work elsewhere.
2. The Grievor was led to believe that second hand smoke was “just a fact of
life” when working in a jail.
3. When the Grievor heard about a group of employees grieving the issue
she felt safe to raise her complaints and felt that as part of a group her
concerns were more likely to be heard.
[46] Union counsel says the union does not allege that there is any objective
basis for the alleged fear that if the grievor raised concerns about second hand
smoke she would face a reprisal by management or that she would otherwise be
unsafe if she had complained before others did.
[47] Assuming that it was a member of management who made the remark
quoted in paragraph 2, the fact that management took a position contrary to the
one that the grievor now takes in her grievance does not satisfactorily explain
the delay until December 2005 in initiating a grievance with respect to things
that occurred in and before 2001.
[48] The allegations relied upon in support of an extension to the time limit do
not provide a reasonable explanation for the delay in filing. I find that there is no
prima facie case for extension of the time for filing this grievance.
18
File # 2007-0013 – David Sproat
[49] The facts said to distinguish the request for extension of the time for filing
this grievance from the request in the Gregg Gray case are these:
1. The Grievor raised concerns about exposure to second hand smoke with
Superintendant [name omitted] and Shift Supervisor [name omitted],
both of whom were smokers and who had distributed free tobacco to
inmates many times.
2. The Grievor also requested that the employer increase ventilation within
the institution.
3. The employer’s response was that inmates had the right to smoke and
that exposure to second hand smoke was an inherent part of the job. The
employer also threatened the Grievor and told him that if he did not like
it, he should consider another occupation.
[50] My assessment here is the same as in Mr. Measham’s case. While the
allegation that the grievor was threatened in some manner at some time in or
before 2001 is troubling, for reasons given earlier it cannot, without more,
provide a reasonable explanation for a multi-year delay in filing the grievance.
[51] The allegations relied upon in support of an extension to the time limit,
assuming them to be true, do not provide a reasonable explanation for the delay
in filing. I find that there is no prima facie case for extension of the time for
filing this grievance.
Conclusion
[52] In the result, all of the grievances listed in Schedule “B” are dismissed as
untimely. In the cases of Ms. Gowan (formerly England) and Mr. Heathcote, this
is entirely without prejudice to any issue that may arise concerning the scope of
their earlier grievances.
Dated this 15th day of February, 2012.
Owen V. Gray, Vice-Chair
Schedule “A”
GSB Number Grievor Name OPSEU # Old OPSEU #
1990‐2758 Balazic, Mathias 1991‐0301‐0001 91B272
1992‐0731 England, Irene 1992‐0255‐0003 92D187
1992‐0731 Marcotte, Robert 1992‐0255‐0001 92D190
1992‐0731 Moreau, Paul 1992‐0255‐0004 92D188
1992‐0731 Mutter, Blaine 1992‐0255‐0002 92D189
1994‐1436 Arnold, Ross 1994‐0608‐0020 94E455
1994‐1436 Gulli, Rina 1994‐0608‐0022 94E457
1994‐1436 Maccarone, Katherine 1994‐0608‐0017 94E451
1994‐1436 Pandzic, Jerry 1994‐0608‐0013 94E452
1994‐1436 Reid, Randy J. 1994‐0608‐0019 94E458
1994‐1436 Sullivan, Robert 1994‐0608‐0018 94E453
1994‐1436 Wysynski, Stephen 1994‐0608‐0014 94E454
1995‐0233 Fraser, Dan 1995‐0521‐0026 95A546
1995‐0267 Cook, Thomas 1995‐0521‐0023 95A556
1995‐1556 Hosegrove, John 1995‐0252‐0002 95F313
1995‐1694 Monk, Randall 1995‐0255‐0001 95F376
1996‐1143 Heathcote, John 1996‐0255‐0001 96A052
1996‐1191 Gordon, Lorne 1996‐0255‐0008 96A085
1996‐1814 Monk, Randall 1996‐0255‐0005 96A469
1996‐1814 Monk, Randall 1996‐0255‐0006 96A470
1996‐1814 Monk, Randall 1996‐0255‐0007 96A471
2000‐0416 Whissell, Alain 1999‐0411‐0031 00E252
Schedule “B”
GSB Number Grievor Name OPSEU #
2004‐1443 Gordon, Lorne 2004‐0234‐0393
2005‐2428 Howell, John 2005‐0234‐0278
2005‐2430 Gordon, Lorne 2005‐0234‐0280
2005‐2433 Cassidy, Brian 2005‐0234‐0283
2005‐2441 Liddie, Justin 2005‐0234‐0291
2005‐2676 Lantz, Sharon 2005‐0234‐0356
2005‐2677 Dickson, Steve 2005‐0234‐0357
2005‐2678 Black, William 2005‐0234‐0358
2005‐2679 Heathcote, John 2005‐0234‐0359
2005‐2750 King, Lawrence 2005‐0234‐0482
2005‐2751 Measham, Steve 2005‐0234‐0483
2005‐2752 Dickson, Lois 2005‐0234‐0484
2005‐2767 Adams, Ian 2005‐0234‐0490
2005‐2819 Allan, Renetta 2005‐0234‐0492
2005‐2820 Barbora, Diana 2005‐0234‐0494
2005‐2821 Bartnicki, Andrew 2005‐0234‐0495
2005‐2822 Bithell, Robert 2005‐0234‐0496
2005‐2823 Campbell, Wayne 2005‐0234‐0497
2005‐2824 Clarke, Andrea 2005‐0234‐0498
2005‐2825 Curran, Tammy 2005‐0234‐0499
2005‐2826 Archdekin, Shari 2005‐0234‐0500
2005‐2827 Coker, David 2005‐0234‐0501
2005‐2828 Denbak, David 2005‐0234‐0502
2005‐2829 Dooley, Irene 2005‐0234‐0503
2005‐2830 Duff, John 2005‐0234‐0504
2005‐2831 Dusome, Eva 2005‐0234‐0505
2005‐2832 Gerber‐Johnston,
Karen 2005‐0234‐0506
2005‐2833 Giancola, Elizabeth 2005‐0234‐0507
2005‐2834 Good, Brian 2005‐0234‐0508
2005‐2835 Goodhew, John 2005‐0234‐0509
2005‐2836 Gowan, Irene 2005‐0234‐0510
2005‐2837 Hagen, Paula 2005‐0234‐0511
2005‐2838 Hannigan, Ann 2005‐0234‐0512
2005‐2839 Hart, Nancy 2005‐0234‐0513
2005‐2840 Holwell, Pauline 2005‐0234‐0514
2005‐2841 Hulley, Don 2005‐0234‐0515
2005‐2842 Keenan, David John 2005‐0234‐0516
- 2 -
2005‐2843 Klacik, Don 2005‐0234‐0517
2005‐2844 Kurczak, Robert 2005‐0234‐0518
2005‐2845 Leonard, Blake 2005‐0234‐0519
2005‐2846 Blanda, Josie 2005‐0234‐0520
2005‐2847 Lovell, Pamela G 2005‐0234‐0521
2005‐2848 Lowry, Anisia 2005‐0234‐0522
2005‐2849 Marshall, Debbie 2005‐0234‐0523
2005‐2850 Martin, Dawn 2005‐0234‐0524
2005‐2852 Misurka, Michael 2005‐0234‐0526
2005‐2853 Niemann, Michael 2005‐0234‐0527
2005‐2854 Noble, John 2005‐0234‐0528
2005‐2855 Poole, Joyce 2005‐0234‐0529
2005‐2856 Psenicka, Paula 2005‐0234‐0530
2005‐2857 Raffin, Tony 2005‐0234‐0531
2005‐2858 Raffin, Gloria 2005‐0234‐0532
2005‐2859 Rucko, Mark 2005‐0234‐0533
2005‐2860 Rudden, Lee 2005‐0234‐0534
2005‐2861 Selkirk, Russell 2005‐0234‐0535
2005‐2862 Simpson, John 2005‐0234‐0536
2005‐2863 Sinclair, Bob 2005‐0234‐0537
2005‐2864 Smith, Margaret 2005‐0234‐0538
2005‐2865 Smith, Philip 2005‐0234‐0539
2005‐2866 Solomon, Nancy 2005‐0234‐0540
2005‐2867 Tobis, Nancy 2005‐0234‐0541
2005‐2868 Tyrrell, Lynda 2005‐0234‐0542
2005‐2869 Vanderyt, William 2005‐0234‐0543
2005‐2870 Williams, Susan 2005‐0234‐0544
2005‐2871 Wilson, Angela 2005‐0234‐0545
2005‐2947 Marcotte, Robert 2005‐0234‐0563
2005‐2948 Kerr, Mike 2005‐0234‐0564
2005‐2949 Campbell, Rob 2005‐0234‐0565
2005‐2950 Favaro, Joe 2005‐0234‐0566
2005‐2951 Mutter, Blaine 2005‐0234‐0567
2005‐2982 Baxter, Neil 2005‐0234‐0584
2005‐2983 Kappler, Wayne 2005‐0234‐0585
2005‐2984 Ranck, Kelly 2005‐0234‐0586
2005‐2985 Reis, Carlos 2005‐0234‐0587
2005‐2986 George, Alexander 2005‐0234‐0588
2005‐3024 Clark, Pearl 2005‐0234‐0596
2005‐3025 Lowe, Michael 2005‐0234‐0597
2005‐3026 Toiviainen, Mervi 2005‐0234‐0598
2005‐3229 Cameron, Mark 2005‐0234‐0667
- 3 -
2005‐3234 McQueen, Mark 2005‐0234‐0672
2005‐3309 Miller, Linda 2005‐0234‐0680
2005‐3310 Mcculloch, Jeff 2005‐0234‐0681
2005‐3311 Essery, Earl 2005‐0234‐0682
2005‐3312 Chisholm, Susan 2005‐0234‐0683
2005‐3313 Dwyer, Sean 2005‐0234‐0684
2005‐3314 Millet, Everett 2005‐0234‐0685
2005‐3315 Degan, Peter 2005‐0234‐0686
2005‐3316 Moco, Denis 2005‐0234‐0687
2005‐3317 Bell, Graeme 2005‐0234‐0688
2005‐3318 Fairley, Gregory 2005‐0234‐0689
2005‐3319 Robertson, Colin 2005‐0234‐0690
2005‐3320 Robertson, Michelle 2005‐0234‐0691
2005‐3321 Berg, Dennis 2005‐0234‐0692
2005‐3322 Smith, Stephen 2005‐0234‐0693
2005‐3323 Kurpieweit, Vic 2005‐0234‐0694
2005‐3324 Young, David 2005‐0234‐0695
2005‐3325 Wyse, Robert 2005‐0234‐0696
2005‐3326 Williams, Ron 2005‐0234‐0697
2005‐3327 McArthur, Doug 2005‐0234‐0698
2005‐3328 Hugo, Peter 2005‐0234‐0699
2005‐3329 Suka, Jovan 2005‐0234‐0700
2005‐3330 Faler, Danny 2005‐0234‐0701
2005‐3331 Whelan, Grant 2005‐0234‐0702
2005‐3332 Schrader, Marilynn 2005‐0234‐0703
2005‐3333 Cartwright, Robert 2005‐0234‐0704
2005‐3334 Gendron, Clarence 2005‐0234‐0705
2005‐3335 Moreau, Paul 2005‐0234‐0706
2005‐3336 Linck, Micah 2005‐0234‐0707
2005‐3337 Gallagher, Joanna 2005‐0234‐0708
2005‐3338 Haines, Don 2005‐0234‐0709
2005‐3339 Drew, Stephen 2006‐0234‐0012
2005‐3340 Baxter, Robert 2006‐0234‐0013
2005‐3341 Lyons, David 2006‐0234‐0014
2005‐3342 Villeneuve, Dennis 2006‐0234‐0015
2005‐3343 Longstreet, Fred 2006‐0234‐0016
2005‐3344 Sheppard, Ken 2006‐0234‐0017
2005‐3345 Oosterwyk, John 2006‐0234‐0018
2005‐3346 Marcotte, Robert 2006‐0234‐0019
2005‐3371 Given, Alice 2006‐0234‐0001
2005‐3372 D’Angelo, Tony 2006‐0234‐0002
2005‐3373 Guillou, Martine 2006‐0234‐0003
- 4 -
2005‐3395 Holton, Greg 2006‐0234‐0004
2005‐3396 Jamieson, Dennis 2006‐0234‐0005
2005‐3397 Knott, Cathy 2006‐0234‐0007
2005‐3398 Oswald, Vicki 2006‐0234‐0008
2005‐3399 Reinhart, Jim 2006‐0234‐0009
2005‐3400 Smith, Scott 2006‐0234‐0010
2005‐3481 Ranck, Kelly 2006‐0234‐0023
2005‐3482 Swan, Mike 2006‐0234‐0024
2005‐3483 Brookfield, Kimberly 2006‐0234‐0025
2005‐3484 Dakroub, Mike 2006‐0234‐0026
2005‐3485 Picard, David 2006‐0234‐0027
2005‐3486 Terrey, Paul 2006‐0234‐0028
2005‐3487 Matthews, Mike 2006‐0234‐0029
2005‐3488 Penson, Colin 2006‐0234‐0030
2005‐3489 Hope, Leighton 2006‐0234‐0031
2005‐3490 White, Cathy 2006‐0234‐0032
2005‐3491 Harnden, David 2006‐0234‐0034
2005‐3539 Swan, Colleen 2006‐0234‐0046
2005‐3702 Brown, Linda 2005‐0234‐0713
2005‐3703 Hunter, Michael 2006‐0234‐0040
2005‐3730 Krzywonos, John 2006‐0234‐0053
2006‐0005 McMillan, Wayne 2006‐0234‐0086
2006‐0009 Ormond, Richard 2006‐0234‐0096
2006‐0010 Abbott, Chris 2006‐0234‐0097
2006‐0031 Quinn, Robert 2006‐0234‐0093
2006‐0139 Wint‐Inglis, Carmen 2006‐0234‐0104
2006‐0249 Reinhardt, Glenn 2006‐0234‐0107
2006‐0465 Highley, David 2006‐0234‐0134
2006‐0466 Bailie, Steven 2006‐0234‐0135
2006‐0467 Davidson, Raymond 2006‐0234‐0136
2006‐0468 Dennique, Robert 2006‐0234‐0137
2006‐0469 Chroust, John 2006‐0234‐0138
2006‐0866 Lehman, Gary 2006‐0234‐0186
2006‐0867 Bartlett, Wendy 2006‐0234‐0187
2006‐0868 Patterson, Paul 2006‐0234‐0188
2006‐0874 Chmurzynski, Paul 2006‐0234‐0194
2006‐0951 Stoker, Michael 2006‐0234‐0220
2006‐0995 Koster, Mike 2006‐0119‐0013
2006‐0996 Boer, Richard 2006‐0119‐0014
2006‐0997 Lavereau, Raymond 2006‐0119‐0015
2006‐0998 Snow, Laurie 2006‐0119‐0016
2006‐0999 Langille, Linda 2006‐0119‐0017
- 5 -
2006‐1000 Tilley, Raymond 2006‐0119‐0018
2006‐1001 Gobin, Tim 2006‐0119‐0019
2006‐1002 Graham, Robert 2006‐0119‐0020
2006‐1003 Gilham, Sheila 2006‐0119‐0021
2006‐1004 Snider, Todd 2006‐0119‐0022
2006‐1005 Pierce, Don 2006‐0119‐0023
2006‐1006 Hyde, Mary Lou 2006‐0119‐0024
2006‐1051 Oates, James 2006‐0234‐0233
2006‐1132 Power, Thomas 2006‐0119‐0029
2006‐1166 Power, Thomas 2006‐0119‐0031
2006‐1391 Briese, Robert 2006‐0234‐0280
2006‐1393 Perusello, Rick 2006‐0234‐0282
2006‐1394 Mandar, Howard 2006‐0234‐0283
2006‐1395 Courville, Barry 2006‐0234‐0284
2006‐1431 Janes, Rob 2006‐0229‐0011
2006‐1629 Marshall, Paul 2006‐0234‐0292
2006‐1637 Bridge, David 2006‐0234‐0300
2006‐1638 Martinoni, Gord 2006‐0234‐0301
2006‐1639 Holmberg, David 2006‐0234‐0302
2006‐1640 Fusco, Tom 2006‐0234‐0303
2006‐1641 Anderson, Michael 2006‐0234‐0304
2006‐1642 Yole, William 2006‐0234‐0305
2006‐1679 Harris, Daniel 2006‐0234‐0314
2006‐1712 Koster, Hans 2006‐0234‐0315
2006‐2689 Fisher, John 2006‐0234‐0349
2006‐2691 Carberry, Peter 2006‐0234‐0351
2006‐2692 Hall, John 2006‐0234‐0352
2006‐2693 Bozzelli, Dominic 2006‐0234‐0353
2006‐2694 Vandal, Dave 2006‐0234‐0354
2006‐2695 Szymanski, Stephen 2006‐0234‐0355
2006‐2927 Branch, Susan 2006‐0234‐0457
2006‐3116 Renda, Frank 2006‐0234‐0458
2006‐3124 Cowan, Brenda 2007‐0234‐0003
2006‐3125 Atkinson, LeeAnne 2007‐0234‐0004
2007‐0013 Sproat, Dave 2006‐0234‐0459
2007‐0020 Cordeiro, Emanuel 2007‐0234‐0006
2007‐0021 Drummond, Carole 2007‐0234‐0007
2007‐0268 Armour, Stewart 2007‐0234‐0045
2007‐0423 Prestage, Richard 2006‐0108‐0077
2007‐0577 Reville, Joanne 2007‐0678‐0005
2007‐0578 Tomchak, Frank 2007‐0678‐0006
2007‐0579 McCorriston, Ian 2007‐0678‐0007
- 6 -
2007‐0580 DiRenzo, Angela 2007‐0678‐0008
2007‐0581 Nelli, Anthony 2007‐0678‐0009
2007‐0582 Thibodeau, Maria 2007‐0678‐0010
2007‐0583 Boulet, Vance 2007‐0678‐0011
2008‐1928 Tooke, Grace 2008‐0218‐0001