Ontario Public Service Employees Union (Ruth Reeve) v. The Crown in Right of Ontario (Ministry of Community and Social Services), 2000 CanLII 20471

GSB # 0863/96

OPSEU # 96F413

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Ruth Reeve)

Grievor

• and -

The Crown in Right of Ontario

(Ministry of Community and Social Services)

Employer

BEFORE Mr. Joseph D. Carrier Vice Chair

FOR THE Michael Klug

GRIEVOR Tolpuddle Labour Co-operative

FOR THE Mary Pat Moore

EMPLOYER Counsel, Legal Services Branch

Ministry of Community and Social Services

HEARING February 9, 10, 15, 16 and March 22, 2000 A W A R D

INTRODUCTION

On May 23, 1996 Ms. Ruth Reeve, a Food Services Helper, then employed at the Southwestern Regional Centre, grieved that she had been improperly surplussed. The Grievor had returned to work from sick leave to perform modified duties on January 4, 1996. Her return to work was approximately 21 days before both her Short Term Disability benefit expired and her Long Term Income Protection (L.T.I.P.) benefit might have triggered, that is, January 25, 1996. On the first day of her return to work, members of the employer met with her and her union representative to advise that her position as Helper, Food Service was being declared surplus effective 6 months from January 4^th and to discuss with her the available redeployment and retraining options. In effect, the Grievor was brought back to work and provided with almost simultaneous notice of lay-off on January 4, 1996.

There were a number of preliminary issues which the parties wished disposed of before they addressed the merits of this grievance. The first issue to be dealt with was raised by the Employer and that concerned an objection to a hearing on the merits of the case since the grievance had been filed in an untimely fashion. The other two preliminary matters were raised by the Union. In the event that the matter was not dismissed as being untimely, it was the Union’s position that it should be adjourned pending a decision by another tribunal, the Joint Insurance Benefits Committee, that is, JIBROC, to which there had been referred a matter related to the merits of the grievance before me. Additionally, the Union sought an order from me that the issue or subject matter of the case here be consolidated with that before JIBROC and the entirety referred to that tribunal for final disposition. I propose to deal, as did the parties, with the Employer’s motion before addressing the Union’s.

THE TIMELINESS ISSUE

Counsel were agreed that the appropriate collective agreement provisions were those embodied in the publication with respect to working conditions etc. having a green cover and stating on its face to expire December 31, 1993. The relevant provisions of that agreement with respect to the timeliness issue appear at page 52 and include Articles 27.1 through 27.3.1 as follows:

“27.1 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.

27.2.1 An employee who believes he has a complaint or a difference shall first discuss the complaint or difference with his supervisor within twenty (20) days of first becoming aware of the complaint or difference.

27.2.2 If any complaint or difference is not satisfactorily settled by the supervisor within seven (7) days of the discussion, it may be processed within an additional ten (10) days in the following manner:

STAGE ONE

27.3.1 The employee may file a grievance in writing with his supervisor. The supervisor shall give the grievor his decision in writing within seven (7) days of the submission of the grievance.”

Simply put, it was the Employer’s position that the grievance was not filed until May 23, 1996 whereas the incident arose on January 4, 1996 when the Grievor was provided with her notice of surplus or layoff. It was the Union’s position that, although Ms. Reeve was aware on January 4, 1996 that she was being surplussed, she did not then realize that there might have been something improper or ineffective in the Employer’s action towards her. She was not alerted to the possible impropriety until sometime after April 8, 1996 at which time she received a copy of a letter of that same date from Manulife Financial to her Employer. It was that letter which triggered her concern and which led to the filing of the grievance. Accordingly, time limits should be measured in relationship to the Grievor’s receipt of that letter rather than in relationship to January 4, 1996. This is in keeping with Article 27 of the collective agreement which describes an entirely subjective trigger to the initiation of a grievance. It was the Grievor’s awareness that she had a complaint rather than the existence of the facts constituting a violation of the collective agreement from which subsequent time limits must be measured. Additionally, it was the Union’s position that I had jurisdiction under Section 48 of The Labour Relations Act to relieve against the consequences of the time limits set out in the collective agreement. In this case, the delay, if any, was insignificant in terms of the importance of the subject matter of the dispute. That is, the Grievor’s layoff. Absent significant prejudice to the Employer which was not apparent, my jurisdiction should be exercised.

In response, it was the Employer’s position that the Grievor had been alerted to the possibility of an impropriety with respect to her layoff on January 4, 1996 by her own steward, Mr. Randy Dauphin. This occurred during the course of a meeting between the Grievor and members of the Company and the Union to discuss her surplus and redeployment options. Accordingly, time limits should be counted from that earlier date which was almost four months prior to the filing of the grievance. Since there was no good reason for the delay, the grievance ought to be dismissed. Additionally, the Employer took the position that I ought not to exercise my discretion to relieve against the time limits in the collective agreement in this case. The Grievor was aware of the existence of an alleged impropriety on January 4, 1996. In the circumstances, there was no good reason for her delay and the Employer had suffered prejudice as a result of the delay. At least one witness who had originally been involved in the surplus decision in 1995 and early 1996 was no longer available.

While there was viva voce evidence given concerning the nature and substance of the meeting of January 4, 1996, as well as subsequent events leading to the Grievor’s claim, I do not propose to review those facts in detail but only to set out my observations and findings as follows:

1. I was somewhat concerned that the Grievor was not entirely candid in her testimony; in particular, she appeared to have a rather convenient memory. For instance, she could not recall with any clarity comments made by her Union steward and/or gestures or comments made by herself to him during the January 4, 1996 meeting. On the other hand, she appeared to recall events involving her ex-supervisor Mr. Brown which he was quite certain did not occur. If credibility were central to this decision, I would have had difficulty relying upon the Grievor’s testimony in certain areas.

2. The issue raised by Mr. Dauphin, the Steward, in the meeting related to his belief that the Employer could not layoff an employee who was under medical restrictions and was not working a regular full schedule.

3. At the onset of the meeting Ms. Colleen Wilson for the Employer expressed her understanding that:

a) The Grievor, would not be qualifying for long term disability in any event;

b) That her short term disability was running out;

c) That the only alternative for the Grievor in the near future would be employment insurance, that is, if she did not return to work. By returning to work as she had done, the Grievor would now be in a position to consider redeployment and retraining opportunities.

4. I am satisfied that, at the time of that meeting the Grievor believed the advice provided by the Employer to be correct, that is:

a) her medical restrictions were such that she would not be eligible for L.T.I.P.;

b) because of that, even had she remained off work to the end of her qualifying period, January 25, 1996, she still would not have qualified for L.T.I.P.;

c) her short term disability benefit was about to expire;

d) her only viable options were to return to the “modified duties” offered or to apply for employment insurance;

e) regardless of her steward’s challenge to her surplus notice, the Grievor believed she had no viable alternative but to return to work and that her consequent designation as “surplus” was inevitable. Her attention was focussed, instead on her redeployment and retraining options.

5. A letter from Manulife to the Employer, dated April 8, 1996 and copied to the Grievor, changed her views. The letter of April 8, 1996 led the Grievor to believe, rightly or wrongly, that she might well have qualified for long term disability coverage had she not returned to work when she did. The qualifying period before long term protection could be activated was six (6) months which period would have expired on or about January 25, 1996. Therefore, although the Employer, in particular, Ms. Wilson had expressed the view that the Grievor would not qualify for long term protection for medical reasons, the Grievor now believed that Ms. Wilson had been mistaken in that view and the Grievor had become the victim of that misinformation. Accordingly, but for the Employer’s advice to the contrary, the Grievor now believed that she might well have remained off work on disability so that she would have ultimately qualified for long term disability. In that event, her layoff or notice of surplus would have been inappropriate. In brief, but for the Employer’s misinformation the Grievor would not have been surplussed on January 4, 1996 and might well have qualified for long term disability shortly thereafter.

While counsel for the Union implied that there had been some deliberate misrepresentation by the Employer with respect to the Grievor’s entitlement to long term disability, Ms. Wilson who addressed that issue in the January 4^th meeting was not in any way cross-examined on the matter as to the source of her information and its legitimacy. Indeed, there was no evidence led to suggest that Ms. Wilson misrepresented in any way the understanding she had at the time with respect to the Grievor’s entitlement. While it might later be argued that the April 8^th letter itself and subsequent correspondence from the insurer indicate that Ms. Wilson’s information was mistaken, there was no evidence as at January 4, 1996 that Ms. Wilson had erred in any way. Lest this decision might otherwise leave a contrary impression, I have added this comment so as to clarify that there was no evidence whatsoever to impugn Ms. Wilson’s integrity with respect to that issue

6. Regardless of whether or not the position and views of the Grievor and her counsel expressed in the foregoing outline are correct or incorrect, I am satisfied that it was the letter of April 8, 1996 which triggered the Grievor’s concern that she had been victimized whether deliberately or inadvertently. It was then that the penny dropped for the Grievor and she sought out the assistance of her steward and redress through the grievance procedure.

7. In all of the circumstances, I find that the earliest date at which the collective agreement provisions operated was April 8, 1996, that is, the date of the letter which triggered the Grievor’s awareness that she might have a claim pursuant to the collective agreement. The Grievor was unable to specify when she received that letter but expressed the view that she thought it was sometime near mid or late April. Although I have some misgivings about her recollection in this regard, it is unnecessary for me to determine the specific date of receipt. The trigger at the earliest was the date of the letter, that is, April 8, 1996. The grievance was filed May 23^rd. That was not much beyond the thirty-seven (37) days which would be entailed in the first verbal stage of the Grievance Procedure including extra days for weekends and holidays. Accordingly, the extension required to legitimize this grievance with respect to the provisions of this particular collective agreement would be barely one week in duration. If one takes the April 8^th date and adds thirty-seven (37) days, the time frame would otherwise have expired at or about May 15^th. The grievance was dated May 23^rd which, taking into consideration an intervening weekend, would have been approximately one week beyond the time frame for initial filing specified in the collective agreement. In view of the nature of the grievance and its impact on the Grievor’s employment status, an extension of that duration would not, in my view, be unreasonable. That the elements exist in this case for the exercise of my jurisdiction does not require a lengthy examination of the extensive jurisprudence on the issue. Rather, a cursory review of the principles set out in the leading Becker Milk case should suffice.

In Re Becker Milk Co. Ltd. and Teamster Union, Local 647 (1978), 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217 (Burkett), Arbitrator Burkett at page 220 identified three factors relevant to arbitral discretion to extend time limits as follows:

“…(i) the reason for the delay given by the offending party; (ii) the length of the delay; (iii) the nature of the grievance 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.”

In the case at hand, although I have some concern regarding the Grievor’s assertion that she did not receive the letter until mid to late April, I am prepared to give her the benefit of the doubt in this instance. A delay of one week between the date of a letter and its receipt by the addressee is not uncommon. That in itself could account for the delay in the filing of the grievance. In any event, the delay was very brief and as noted earlier, the nature of the grievance is of sufficient import to justify the exercise of my discretion. As to the issue of prejudice, Employer counsel argued that the four year delay between the incident and this proceeding was significant. Although that assertion was correct, counsel was focussing on the wrong time frame. The issue here relates to the delay which the Grievor caused and could control. She could not be held responsible for the delay between the time she filed the grievance and the proceeding before me. Accordingly, I find that there are reasonable grounds to extend the time limit in this case. Therefore, it is my decision that the time limit to file the grievance is extended and that the matter is properly before me.

ADJOURNMENT AND CONSOLIDATION

In addition to the grievance before me, Ms. Reeve is seeking to confirm her right and entitlement to long term disability or, as the parties refer to it within their collective agreement, Long Term Income Protection (L.T.I.P.). Her claim to that benefit had previously been denied by the insurer, Manulife; however, the Grievor has sought to overturn or appeal that decision pursuant to specific provisions in the collective agreement designed for that very purpose. The panel and the process for such appeals is loosely referred to by the parties by the acronym “JIBROC” which stands for the Joint Insurance Benefits Review Committee.

It is the Union’s position presented by Mr. Klug that issues before JIBROC will be the same or similar to one or more of the issues before me. More particularly, Mr. Klug suggested that the Grievor’s entitlement to L.T.I.P. will be specifically before JIBROC. Additionally, he argued that the grievance before me also entails a determination as to whether or not the Grievor was or might have been entitled to L.T.I.P. at the time she received her notice of surplus, that is, January 4, 1996. Since there is that similarity between the cases and since JIBROC has been specifically created and designed by the parties to deal with insurance entitlement, I should defer to the jurisdiction of that body. Furthermore, not only should I defer to the jurisdiction of that tribunal I should order that this grievance be consolidated with the matter pending before JIBROC and allow that tribunal to deal with these inter-related issues. On the other hand, Mr. Klug was quite specific in advising that he was not requesting that the matters be consolidated and heard together before me. Rather, it was the Union’s position, supported by the Employer, that I ought not to consolidate the matters and assume jurisdiction myself over the appeal currently pending at JIBROC. Upon being questioned by the arbitrator to clarify the Union’s position respecting the nature and scope of the issues at hand, Mr. Klug responded that it was unnecessary for me to determine the scope of the grievance at this time. Frankly, in preparing this Award, I have had great difficulty in accepting or adopting that view.

Ms. Moore, on behalf of the Employer, opposed both the adjournment of the immediate case and the Union’s motion to consolidate this matter with that before JIBROC. It was her view and submission that the issues were unrelated and there was no purpose or need to be served in either consolidation or adjournment of the instant case.

In order to clarify his position Mr. Klug attempted to characterize the issue before me in the following manner:

1. The Employer’s action in providing the Grievor with notice of surplus or notice of layoff was improper since she qualified for L.T.I.P. pursuant to Article 42 of the collective agreement as at January 4, 1996. In effect, she would have qualified for L.T.I.P. but for the Employer’s actions.

2. The Employer’s action in recalling the Grievor to modified work while simultaneously designating her a surplus employee was designed to frustrate her rights to long term income protection.

3. In the circumstances, the core of the Grievor’s claim that she was improperly designated surplus, hinges upon her rights to L.T.I.P. pursuant to Article 42 of the collective agreement. Since that determination involves the application of Article 42 concerning which JIBROC has exclusive jurisdiction, this arbitrator should defer to a decision there by adjourning the instant matter pending confirmation of the Grievor’s L.T.I.P. rights.

While Mr. Klug’s argument is intriguing, it is premised on the notion that the instant grievance must entail a definitive determination of the Grievor’s L.T.I.P. rights, a function reserved to JIBROC. At the same time, as indicated earlier, he suggested that I need not determine the scope of this arbitration. That position cannot be correct. If the current matter is to be adjourned, I must be satisfied that there is some common ground between the instant matter and that before JIBROC. While Mr. Klug suggested that I need not determine the scope of the current grievance, he proceeded to explain his views as to the operation of Article 42 and its impact on the Grievor’s employment status. It is my view that before he can advance that argument, it must be determined that the current grievance extended to a consideration of the very merits of the Grievor’s L.T.I.P. claim. To suggest otherwise is to put the cart before the horse. Accordingly, the scope of the grievance before me must be determined in order to assess common or inter-related matters with those which might come before JIBROC.

The grievance here alleged that “I have been improperly surplussed”. It did not allege that “I have been improperly denied L.T.I.P. benefits”. The grievance from its inception did not directly concern or allege that the Grievor had a valid L.T.I.P. claim. There was no evidence that the parties addressed the ultimate validity of the Grievor’s claim or medical qualifications for the L.T.I.P. benefits during the course of the grievance procedure in relationship to the matter.

It was my understanding from the inception of this matter before me, that the grievance related to that state of affairs which existed as at January 4, 1996. At that date, the Grievor would not and could not have qualified for L.T.I.P. because she had not completed the six month qualifying period and would not have done so until on or about January 25, 1996. That was common ground between the parties. Accordingly, any conflict between the Grievor’s status as an employee on L.T.I.P. and her having been provided with notice of layoff could have arisen at the earliest on January 25, 1996. Rather, the issue at January 4, 1996 was whether the parties including the Grievor and the Employer, acted under a misapprehension and/or misinformation as to the Grievor’s ultimate ability to qualify for L.T.I.P. If so, the Grievor was recalled to work and, indeed, returned to work under that misapprehension thereby exposing herself and her position to being designated surplus. In those circumstances, was it inappropriate for the Employer to make the determination that the Grievor’s position was surplus since that determination might have impacted upon the possibility of her imminent qualification for L.T.I.P. To put it another way, this case as originally framed was about the validity of the Grievor’s having been declared surplus. It was not and is not about the validity of her L.T.I.P. claim. Accordingly, it is my view that it is unnecessary for the purposes of these proceedings to determine with finality whether or not the Grievor would have had a valid L.T.I.P. claim but for her return to work on January 4, 1996. Rather, it is sufficient for the purposes here to postulate that the Grievor might have had a valid claim to L.T.I.P. as early as January 25, 1996 but for the Employer’s actions. The issue here is whether or not there was any impropriety in the Employer’s actions directed at frustrating the Grievor’s L.T.I.P. rights or at least resulting in the frustrating of those rights, if any. It is the propriety of the Employer’s actions which is the subject matter of this dispute not the validity of the Grievor’s claim to L.T.I.P. benefits.

In the circumstances, I conclude that the issues which might reasonably arise within the proceedings before me are not similar or the same as those which might come before JIBROC. Furthermore, the determination here does not rest upon the validity of the Grievor’s claim to L.T.I.P. Therefore, there is no need for the adjournment of the instant proceedings pending the results of the Grievor’s appeal before JIBROC nor is this a case in which, as arbitrator, I should exercise the Grievance Settlement Board’s powers to consolidate issues before one tribunal. Having considered the representations of the Parties and the authorities submitted, I conclude that it would be inappropriate for me to adjourn the instant matter or to consolidate this grievance with the appeal before JIBROC.

To summarize my decision:

1. The Employer’s motion to dismiss the matter on the basis that the grievance was filed in an untimely fashion is dismissed.

2. The Union’s motion to adjourn this matter pending the results of the JIBROC appeal and/or to consolidate this matter with that appeal is also dismissed.

Dated at Toronto, this 11^th day of August, 2000.