GSB #2171/97

OPSEU #98A165

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Rondeau)

Grievor

• and -

The Crown in Right of Ontario

(Ministry of the Solicitor General and Correctional Services)

Employer

BEFORE D.J.D. Leighton Vice Chair

FOR THE John Brewin

GRIEVOR Labour Relations Consultant

Ryder Wright Blair & Doyle

Barristers & Solicitors

FOR THE Len Hatzis, Counsel

EMPLOYER Legal Services Branch

Management Board Secretariat

HEARING September 6 & 7, 2000.

DECISION

On January 16, 1998 Michelle Rondeau filed a grievance alleging that she had been sexually harassed and discriminated against in her workplace between 1991 and 1995. At the outset of the hearing the employer brought a motion to dismiss the grievance as untimely. The union took the position that the grievance should be considered timely; and that if it is not, then the time limits for filing should be extended pursuant to subsection 48 (16) of the Labour Relations Act.

Ms. Rondeau worked as a General Nurse 2 at the Sarnia Jail between September 1991 and October 24, 1995. She testified that after about three months of employment in the jail she experienced a hostile workplace, including being threatened and given the "cold shoulder." There were pranks played on her. The unpleasant work environment got worse over the four years. Her complaint was chiefly about a co-worker, and member of the bargaining unit, Cathy Coates, who was promoted and became the grievor's supervisor. Ms. Rondeau was extremely upset by statements made by Ms. Coates at a union meeting on March 25, 1993, remarks predating the promotion.

Ms Rondeau's complaints were first investigated by the employer after she complained on March 27, 1994. The investigator concluded that there had been no harassment or discrimination against Ms. Rondeau. This was reported to Ms. Rondeau by letter dated October 17, 1994, from Mr. J. Cassidy, Regional Manager, Western Region. The grievor was not satisfied by this report and requested a second investigation. The employer asked Mr. W.B. Thomas, Regional Human Resources Administrator, to review the complaint. On July 7, 1995 Ms. P.A. Radley, Regional Director, Western Region, wrote to Ms. Rondeau confirming the results of Mr. Thomas' review of the matter, which had been discussed with the grievor at an earlier meeting:

Mr. Thomas has concluded that there is no evidence of harassment or discrimination against you by your supervisor Ms. Coates. Mr. Thomas concludes that the nature of the problem is a personality conflict between you and your supervisor as well as an apparent difference of opinion in regards to certain health care procedures.

The regional director also informed Ms. Rondeau of the right to have her complaint referred to the Ministry's Independent Investigations Unit. She also suggested that Ms. Rondeau might consult one of the region's workplace harassment advisors. There was no evidence provided as to whether the grievor pursued this advice.

An event which occurred on October 24, 1995 precipitated the grievor leaving the workplace on short term sick leave. Before leaving, Ms. Rondeau complained about the occurrence to a member of senior management, Mr. J. Palmer. Several meetings between the grievor and management took place after she left work, in November 1995 and in the spring of 1996. The employer offered to transfer Ms. Rondeau to the Windsor Jail, but this was not acceptable to the grievor. She testified that she could not return to Sarnia Jail because the problem there was not resolved.

After her short term, sick leave expired, she worked as a nurse in the United States. From December 1996 until June 1999 she worked in Michigan at the St. Clair County Community Mental Health Centre. Ms. Rondeau returned to work at Sarnia Jail in June 1999.

Ms. Rondeau testified in her evidence-in-chief that after the October 1995 incident she did consult the union about her situation. She stated that she was advised that the harassment she was suffering was personal and not because she was a member of a protected group under the Human Rights Code. In cross-examination, when asked if the union said she could not file a grievance, she acknowledged that she was told it would be futile to file a grievance.

Ms. Rondeau also testified in cross-examination that she preferred to seek a "win-win" solution with the employer through the meetings that occurred after she left in 1995 and the spring of 1996. She also said that she considered filing a grievance a last resort. She acknowledged that she knew about the grievance procedure available to bargaining unit employees. She had been present at a union meeting on March 25, 1993 where the issue of combating harassment and poisoned workplaces was specifically addressed. That discussion included using the grievance procedure to seek remedies and redress for sexual harassment. However, Ms. Rondeau had researched the collective agreement and concluded that the harassment and discrimination that she was suffering was personal – "that it fell through the cracks" and therefore she could not file a grievance.

After leaving the Sarnia Jail, in addition to attempting to work out a solution to her problems with the employer, Ms. Rondeau sought legal advice from a lawyer and a paralegal. The paralegal advised her to sue a co-worker in small claims court for defamation of character, for certain statements made in March 1993. She did so on July 15, 1996. The Ministry successfully brought a motion to dismiss the suit, arguing that the action was not timely and that the court had no jurisdiction over a matter arising under a collective agreement. Ms. Rondeau appealed and on May 25, 1999 the upper court decided that the employer was correct, and the proper forum for the complaint was arbitration under the collective agreement. Ms. Rondeau grieved to recoupe her legal fees for this action.

Ms. Rondeau also filed a human rights complaint with the Ontario Human Rights Commission on August 19, 1997. The substance of this complaint is the same as the grievance before the board. She alleges that she was harassed between 1991-1995 in the workplace. Finally, Ms. Rondeau filed a complaint against her union in May 1999 at the Ontario Labour Relations Board.

In the fall of 1997 Ms. Rondeau spoke to Ms. Carol Warner, a union steward and was advised that "it would not hurt" to file a grievance relating to the incidents which occurred between 1991 and 1995. Ms. Rondeau prepared and sent a grievance to the union in November 1997. The union did not receive it and Ms. Rondeau sent another copy of the grievance which was filed on January 16, 1998.

Employer Submission

Employer Counsel, Mr. Hatzis, argued that the grievance was untimely and that I should not exercise my discretion to extend the time. Mr. Hatzis argued that the evidence was clear that Ms. Rondeau triggered the grievance procedure on October 1995 when she complained to senior management before leaving the workplace. She also negotiated with management to achieve a settlement of her complaint in November 1995 and the spring of 1996. She did not take the grievance forward formally, preferring to negotiate directly with management to achieve a settlement. Thus he argued that Article 27.13 applies and since the grievance was not furthered until January 1998, it must be deemed to be withdrawn.

In the alternative, counsel argued that Ms. Rondeau was aware of her rights to file a grievance in October 1995. She chose not to do so because she preferred to negotiate a settlement with management and because she saw the filing of a grievance as a last resort. She is therefore late in filing some 26 months after the last event, which for which she is grieving. There is no evidence to support exercising the discretion under the Labour Relations Act to extend the time.

Counsel for the employer relied on the following cases in support of the submission: Donwood Institute and OPSEU, Loc. 541 (1997) 1997 CanLII 25132 (ON LA), 60 L.A.C. (4th) 367 (Brandt); OPSEU (Alexander) and the Ministry of Transportation (1999) G.S.B. #2231/97 (Gray); OLBEU (Pound) v. Liquor Control Board of Ontario (1995) G.S.B. # 3278/92 (Briggs); OPSEU (Joly) and the Ministry of the Solicitor General and Correctional Services (1998) G.S.B. # 1009/97 (Brown); OBLEU (Wicken) and Liquor Control Board of Ontario (1998) G.S.B. #2216/97 (Knopf).

Union Submission

Counsel for the union, Mr. Brewin, argued that it was not until October 30, 1997 that the grievor became aware of her rights. It was on this date that she spoke to the union about an earlier grievance, filed in March 1997, seeking reimbursement for legal fees incurred, that Ms. Warner advised Ms. Rondeau that it would "not hurt to file a grievance" regarding the incidents which occurred between 1991 and 1995. Before this, it was the grievor's belief that her grievance was a result of harassment and discrimination of a personal nature, for which she could not grieve. Therefore the grievor's complaint was only filed six weeks after she became aware of her rights.

Mr. Brewin argued that the delay between October of 1997 and the filing of the grievance on January 1998 was not enough to deny the grievor her right of hearing. The employer had notice of Ms. Rondeau's complaints and there was no evidence to support prejudice in the delay between October 1997 and January 1998.

Finally, he argued that while this case was not as serious as a discharge case, it involves serious allegations of harassment. Therefore, I should exercise the discretion under the Act to extend the time limit between October 1997 and January 1998, and dismiss the employer's motion.

Counsel for the union submitted the following cases: Ontario (Ministry of Correctional Services) v. OPSEU (1990) 1990 CanLII 6697 (ON HCJ), 74 O.R. (2d) 700 (Div. Ct.); OPSEU (Pierre) and the Ministry of Correctional Services (1987) G.S.B. # 0492/86 (Verity); OPSEU (Bleach and Ronkai) and th Ministry of Correctional Services (1988) G.S.B. # 0020/88 (McCamus); OPSEU (Mirasol) and the Ministry of Health (1991) G.S.B. # 1389/90 (Knopf); OPSEU (Trybus) and the Ministry of Natural Resources (1995) G.S.B. # 661/94 et. al (Briggs); RE Becker Milk and Teamsters Union, Loc. 647 (1978) 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217(Burkett).

Decision:

Counsel agreed that the collective agreement between the parties dated 1992-1993 (the Green Book) applied in this case, because the events in dispute arose when this collective agreement was still in force. Under the Green Book a grievor must complain to her or his supervisor "within 20 days of first becoming aware of the complaint or difference." It is well established that this collective agreement calls for a review of the facts which examines when the grievor actually knew she/he had a complaint. Thus the evidence of the grievor that she/he did not know, perhaps until six months after the "event," is patent evidence that this is the point when the time limits under the collective agreement begin to run.

So the issue to determine is when Ms. Rondeau knew of her complaint or difference with management.

Having carefully considered the evidence of the grievor I am convinced that she knew she had a complaint on October 23, 1995 when she went to Mr. Palmer before leaving the workplace. However, instead of filing a grievance, she chose to pursue a negotiated settlement with the employer, without the assistance of the union. She testified that she wanted to try to achieve a "win-win" solution. Further, she saw the filing of a grievance as a last resort. In a letter, dated May 11, 1997, to the Superintendent of the Sarnia Jail, Mr. Robert Dickson, Ms. Rondeau wrote as follows:

I have not before this time filed a Grievance, preferring to believe in the integrity and honesty of Management to help resolve the situation which prevents me from working at the Sarnia Jail.

I also preferred to use a cooperative approach to negotiate a win-win solution rather than to use an antagonistic approach which would result in a win-lose situation.

A mutually agreeable resolution has not been found.

Please consider this letter stage one of the Grievance procedure. I thank you in advance for your reply which I expect within seven days.

In the submission of the union this letter was not grieving the incidents of 1991 to 1995. However, it clearly shows that Ms. Rondeau made a conscious decision not to file a grievance in October 1995. This finding is supported by the evidence that Ms. Rondeau knew of her general rights to file a grievance well before the October 1995 incident occurred.

It was the position of the union that because in October 1995 the union advised Ms. Rondeau that her complaint was of "personal" harassment that she was unaware of her right to file a grievance. But this Board has held that it is not awareness of the legal "right" but knowledge or awareness of the circumstances of the complaint or difference. Even when the advice of the union has been wrong, as in the Wicken case, where the grievor was told not to file a grievance until his criminal case was heard in the courts, the Board still found that the delay in filing meant the grievance was not timely. In Ms. Rondeau's case the advice was merely that it would be futile to file a grievance. And Ms. Rondeau seemed to agree with this advice. There was no evidence to support a finding that the union refused to file a grievance about the events which occurred between 1991 and 1995.

Further evidence that Ms. Rondeau knew that she had a complaint on October 24, 1995 is that she pursued solutions before leaving the workplace, which lead to two investigations by management into her concerns. She also pursued solutions after she left the workplace when she consulted a lawyer and a paralegal. She has pursued litigation against a fellow employee, the employer and her union -- all for the alleged harassment between 1991 and 1995.

In summary, I am convinced that Ms Rondeau was well aware of the complaint in October 1995. And she knew about the grievance procedure in the collective agreement. I am of the view that in part because she believed it would be futile to file a grievance, she vigorously pursued every other avenue she could. It is not possible then to reconcile this evidence with her becoming aware of her grievance rights in November 1997. The grievance is clearly out of time, having been filed 26 months after the last event.

The delay is so long that it would not be appropriate to exercise the discretion under subsection 48(16) of the Labour Relations Act to extend the time limits. There has been no evidence to support the exercise of the discretion. The collective agreement between the parties requires a speedy resolution of complaints. Union counsel appropriately conceded in closing argument that if I found that the time began to run when the grievor left the workplace in October 1995, then the grievance should be dismissed as untimely.

I therefore, hereby, dismiss the grievance.

Dated at Toronto, this 18th day of October 2000.