GSB#1280/00, 1420/00
UNION#00D456, 01A042
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Dales)
Grievor
-and-
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
BEFORE Loretta Mikus Vice-Chair
FOR THE GRIEVOR Irit Kelman
Counsel
Ryder Wright Blair & Doyle
Barristers & Solicitors
FOR THE EMPLOYER Mary Gersht
Counsel
Legal Services Branch
Management Board Secretariat
HEARING November 29, 2001.
The grievor, Doreen Dales, was hired as an unclassified Nurse II at the Guelph Correctional Centre in January of 1994. She suffered a workplace injury on August 22, 1996 and went off work on September 16, 1996. Except for a work hardening program in September and October of 1997, she has remained off work to the present.
However, while she was still at work she was part of a Union grievance regarding the Employer’s failure to convert a number of unclassified employees pursuant to Article 31.15 of the collective agreement. That grievance was settled in October of 2000 with the result that the grievors were retroactively granted classified status to their respective positions. Ms. Dales status in particular was converted to a classified employee on September 30, 1998.
During that time she had been in receipt of WSIB payments but was advised in the fall of 2000 that she had reached maximum medical recovery. At that time she submitted an application for LTIP benefits to Manulife in accordance with the terms of the collective agreement. She was advised in a letter dated November 9, 2000, that she was ineligible for benefits because she had been an unclassified employee at the time of her injury and was not actively at work when she became a classified employee. She therefore did not meet the requirements under the plan and her application as denied. She filed a grievance dated November 18, 2000 in which she claimed that the Employer had failed to pay her pay her premiums for LTIP according to article 41.4 of the collective agreement. She asked for full restitution of premiums retroactively to September of 1998 to enable her to be eligible for LTIP benefits. In December of 2000 she filed another grievance alleging that the Employer was in violation of article 42.2.3 and asking for full restitution for all lost income, including interest.
At the first day of hearing the Employer raised an objection to my jurisdiction on the basis that the collective agreement specifically requires that differences about eligibility for benefits be processed under Article 22.9.1 and 22.9.2, which read as follows:
22.9.1 An allegation that the Employer has not provided an insured benefits that has been contracted for in this Agreement shall be pursued as a Union grievance filed under Article 22.13 (Union Grievance).
22.9.2 Any other complaint or difference shall be referred to the Claims Review Subcommittee of Joint Insurance Benefits Review Committee (JIBRC) established under Appendix 4 (Joint Insurance Benefits Review Committee), for resolution.
The JIBRC referred to in Article 22.9 is expressly continued in Article 43 and its terms of reference are set out in Appendix 4, which deals with the purpose, composition and duties of the Committee, a review mechanism to monitor the experiences under the plans and the establishment of a Claims Review Subcommittee. It is clear from Appendix 4 that all decisions regarding the choice of the carrier, the specifics of the plan, the tendering process and the basis for recommendations to the government regarding the carrier of choice are to be determined by the JIBRC. It is equally clear that the Claims Review Subcommittee is to “review and make decisions regarding complaints or differences involving the denial of insured benefits under the Central Collective Agreement when such issues have not been resolved through the existing administrative procedures, save and except a complaint or difference arising under Article 22.9.1 (Insured Benefits Grievance) of the Central Collective Agreement”.
It is the position of the Employer that I, as a Vice Chair of the Grievance Settlement Board, do not have jurisdiction to hear a grievance regarding the denial of benefits under the collective agreement. That jurisdiction has been specifically reserved to the JIBRC and the Claims Review Subcommittee. Where the parties have gone to these lengths to insure an alternative to the Grievance Procedure set out in the Collective Agreement, and have further taken care to use language to make that alternative route mandatory, this Board must respect their intentions and apply this collective agreement consistent with those intentions.
The Union, on the other hand, takes the position that these grievances are filed under Articles 41.4 and 42.1 of the Collective Agreement, both of which require the Employer to pay premiums for Long Term Income Protection benefits. It further submits that these articles must be read consistent with Article 3 of the Collective Agreement which prohibits discrimination on several grounds, including, for the purposes of this hearing, handicap. It was said by the Union that once the grievor became a civil servant, she was entitled to have her benefit premiums paid by the Employer. She cannot be denied those payments because she has a handicap. That would be a contravention of Article 3 and the Ontario Human Rights Code. There is no dispute that the grievor meets the definition of total disability in Article 42.2.4 in that she is “unable to perform the essential duties of any gainful occupation for which she is reasonably fitted by education, training or experience”. She cannot be treated in a differential manner because she was disabled.
The Unions asserts that Article 22.9.1 was intended to apply to situations where the parties contracted for certain benefits that the Union later alleges have not been provided. For example, if the Employer had agreed to provide basic life insurance and did not, Article 22.9.1 allows for the Union to grieve on behalf of its members. That is not the case before me. The heart of this dispute is the denial of benefits to someone with a handicap, which is not contemplated by Article 22.9.
Ms. Kelman, for the Union, also took the position that, if this grievance is in the wrong forum, the Employer has waived any right to object at this stage of the proceedings. It did not raise any objection to this Board’s jurisdiction until late in the processing of this grievance. If it had done so earlier, the grievor might have filed a JIBRC appeal as well. The Employer’s failure to object in a timely fashion must be seen a waiver of its right to raise this jurisdictional argument at this stage. Finally, the Union submitted that, if the proper forum for this complaint is JIBRC, it will eventually come to me as one of the Chairs of the Claims Review Committee and I should accept jurisdiction under both appointments.
In reply, Ms. Gersht, took the position that the Union argument regarding the Human Rights Code and Article 3 of the Collective Agreement deal with the merits of the grievance and not with the preliminary issue of my jurisdiction to continue. Neither of the grievances specifically allege any violation of Article 3 or the Code and are therefore not before me. In any event, any complaint regarding a claim of discrimination in the provision of health and welfare benefits was clearly intended by the parties to be dealt with under Article 22.9.1. This grievance concerns the denial of LTIP benefits, a matter that is clearly within the mandate of the Claims Review Subcommittee of JIBRC. The process described in Article 9.1 is mandatory. The parties cannot simply bypass that process. With respect to the Union’s argument regarding waiver, the Employer submitted that a party cannot waive its right to raise an objection to the jurisdiction of a Board of Arbitration. If there is no jurisdiction to proceed, the failure of a party to raise an objection earlier in the proceeding will not confer jurisdiction where is does not exist. Finally, with respect to the Union’s submission that I take jurisdiction of the grievance as a chair of the Claims Review Submission, the Employer asserted that this grievance has not been processed under that provision and cannot be converted to a JIBRC claim until it has complied with the procedures of that Committee.
In support of its position the Employer relied on the following cases: Re OPSEU (Meades) and the Ministry of Correctional Services (July 17, 1989) GSB # 1322/88 (Kirkwood); Re Insurance Corporation of British Columbia and Office and Professional Employees’ International Union [1997] B.C. L.R.B.D. No 87; Re Pullman Trailmobile Canada Ltd. and Miscellaneous Workers, Wholesale and Retail Delivery Drivers and Helpers Union, Local 351 (The “Teamsters”) [1979] B.C. L.R.B.D No 43; Re OPSEU ( Rosamond) and Ministry of Citizenship, Culture and Recreation (December 16, 1998) GSB # 2086/96 (Leighton); Re Atomic Energy of Canada LTD. and Society of Professional Engineers & Associates (1994), 1994 CanLII 18598 (CA LA), 41 L.A.C. (4th) 310 (Knopf); Re OPSEU (Moulton et al) and Ministry of Correctional Services (December 21, 1988) GSB # 0231//88 (Watters).
In support of its position the Union relied on the following cases: Re OPSEU (Simon et al) and Ministry of Correctional Services (May 17, 2001) GSB # 1390/00 (Mikus); Re OPSEU (Rhodes) and Ministry of Attorney General (November 18, 1991) GSB # 866/90 (Dissanayake); Re OPSEU (Teil) and Ministry of the Solicitor General & Correctional Services (July 21, 1997) GSB # 1419/94 (Verity) and Re OPSEU (Fung/Anand) and Ministry of Finance (April 16, 1991 GSB # 104/90 (Stewart).
DECISION
This grievance raises several issues related directly to the parties’ agreement on how to process claims for long term disability benefits. It involves specifically the interpretation of Article 22.9 within the context of the provisions of the collective agreement regarding the provision of health and welfare benefits to the bargaining unit as a whole and the right of an individual to grieve the denial of those benefits.
The actual grievances before me allege a violation of Article 41 and 42. The latter requires the Employer to pay 85% of the monthly premium for the Long Term Income Protection plan (LTIP). The former requires those payment to continue while an employee is receiving payments from the WSIB. Absent any other considerations, Article 22, Grievance Procedure, would allow an employee who disputed the Employer’s actions in this regard to file and process a grievance to arbitration if necessary to have his/her complaint addressed. Article 22 sets out the procedure to follow if one believes he/she has a complaint or difference with the Employer on any matter arising out of the collective agreement. That process is to provide an orderly method of dealing with workplace issues and to ensure that, where an employee believes the Employer has violated the terms of the Collective Agreement, there is an avenue to address those concerns.
In this case, however, the parties have determined that there are some disputes that would be better dealt with in another forum, that is the JIBRC and Claims Review Subcommittee process. Within the grievance procedure itself, they have expressly stated their intentions to deal with LTIP issues in a manner distinct from other workplace differences. They have further divided these LTIP complaints into two categories, one for those matter arising from claims that the Employer has failed to provide the benefits under the collective agreement, the other from claims that the Employer has provided the benefits but denied them to a particular individual. In the former situations, it is the responsibility of the Union to file a grievance, in the latter, the individual. The reasons for the separation of claims is obvious. Where the Union is of the opinion that, notwithstanding a promise to purchase certain benefits for its members, the Employer has in some manner failed to do so, it is entirely appropriate that the Union, on behalf of its members, file a grievance to recover its losses. It is the Union who negotiates with the Employer to determine the benefits it will provide based on factors such as cost and experience. It is the Union who is in the best position to deal with issues arising out of the decisions to provide those benefits and at what level rather than individual members who have not and cannot be part of that process. On the other hand, questions arising out of an individual’s eligibility to receive benefits must, by their very nature, must be processed by the individual claiming benefits. The denial of benefits to an individual concerns issues of eligibility for benefits, whether based on medical facts or general eligibility, and must be considered on its own merits.
The question being asked is whether Article 22.9 confers exclusive jurisdiction on JIBRC to deal with all questions concerning insured benefits. I am of the opinion that was what the parties intended when they negotiated Article 22.9. I begin by noting that the references to the resolution of disputes regarding insured benefits is found within the Grievance Procedure itself. That signifies, in my opinion, that the parties put their minds to the processing of these unique complaints and decided they should be dealt with outside of the usual process. Secondly, the parties were careful to separate, within Article 22.9, the two situations it felt might arise under this provision. They envisioned general complaints about the provision of benefits to the bargaining unit as a whole and decided that it would be the Union who would carry the burden of asserting and defending those claims. They also knew that individual complaints would arise about eligibility for benefits and decided that all of those other complaints would be dealt with by JIBRC. To further signify the parties’ view on the uniqueness of these claims, the parties set up, within JIBRC, a Claims Review Subcommittee to deal with issue of individual entitlement. Finally, to further emphasise their intentions, the parties’ adopted language that would clearly show their intentions. They stated that all general complaints shall be pursued as Unions grievances and that “any other complaint or difference shall be referred to the Claims Review Subcommittee...”. All of that leads me to the inescapable conclusion that the parties aim was to provide an alternative route for the resolution of any differences arising out of the provision of insured benefits to its members and that alternative resolution process is mandatory.
That takes us back to the instant grievance. The grievances allege that the Employer has violated Article 41 and 42 of the Collective Agreement in that the Employer has failed to pay the grievor’s premiums for LTIP benefits. What that translates to in real terms though, is whether the grievor is or was eligible for LTIP benefits is the first instance. If she is ineligible according to the provisions of the insurance plan negotiated by the parties, it might be that the Employer has or has had, no obligation to pay any premiums on her behalf. On the other hand, if she is ultimately found to be eligible for benefits, and if the Employer has failed to pay benefits on her behalf, her claims under Article 41 and 42 have merit. All of that is subject to an initial finding on her eligibility. That is the very difference or claim the parties intended to be heard under Article 22.9. Any claim therefore for benefits, including the payment of premiums, that depends on a finding of eligibility must be placed before JIBRC and, if necessary, before the Claims Review Subcommittee.
The Union has argued that the Employer has waived any right to object to my jurisdiction by it acceptance of the grievance in the first instance and its actions in continuing to process the grievance until after the second stage. There is no question that a party can waive its right to object to procedural irregularities in the processing of a grievance. If a party allows the other side to continue without alerting it to a forthcoming objection, it risks being estopped from doing so later. However, a party cannot waive an objection to the jurisdiction of a Board of Arbitration. That is not a procedural matter but one that goes to the heart of the authority of the Board to hear and determine a dispute. The Board of Arbitration at the Grievance Settlement Board derives it jurisdiction in the first instance from an Order in Council conferring on it the authority to hear and determine disputes between the parties to the Grievance Settlement Board. Absent that Order in Council, a Vice-Chair has no jurisdiction to proceed. Nothing the parties say or fail to say can confer jurisdiction on a Vice-Chair if there is no Order in Council. Similarly, the secondary jurisdiction of an arbitrator in the private sector derives, in the main, from the collective agreement. If there is no jurisdiction under the collective agreement, an arbitrator cannot take jurisdiction over a matter absent the parties express agreement otherwise. If, as I have found in this case, a specialized tribunal has the exclusive jurisdiction to determine issue of eligibility, I cannot take jurisdiction nor can one party grant me jurisdiction to determine an issue within its mandate. The doctrine of waiver does not apply.
Finally is the important question of the application of Article 3 or the Ontario Human Rights Code to these grievances. There has been a clear allegation that the Employer’s actions in denying the grievor LTIP benefits or in refusing to pay the premiums on her LTIP benefits is contrary to both. It was said that these acts discriminate against the grievor on the basis of handicap. The Employer refused to pay her premiums because she was handicapped at the time of her application for benefits and that is contrary to the Collective Agreement and the Code. The Employer argues that these allegations do not appear on the grievances and are more related to the merits of the grievances rather than the preliminary matter of jurisdiction. It seems to me that these issues are inextricably tied to the issue of eligibility. If the grievor was denied benefits because of the terms of the insurance plan negotiated by the parties, and there was a finding that was discrimination on a prohibited ground under the Collective Agreement and/or the Code, the parties would be required to amend the plan to conform to the legal requirements under both. That would be of significant interest to the members of JIBRC. On the other hand, unlike claims for benefits, an allegation of a violation of Article 3 or the Code are not limited to the procedures under Article 22.9. Allegations of such a serious nature cannot be constrained by the procedural limitations of the parties.
On that basis I have concluded that I do have jurisdiction as a Vice-Chair of the Grievance Settlement Board to hear the grievances before me so far as they relate to allegations of an infringement of the grievor’s right to be free from discrimination on the basis of handicap. However, the JIBRC and the Claims Review Subcommittee have similar and concurrent jurisdiction to determine these issue during a hearing on a claim for benefits under Appendix 4 of the Collective Agreement. Given my comments on the intentions of the parties to confine issues regarding insured benefits to the procedures under Article 22.9, it seems to me that would be the preferred route for an allegation of discrimination in the provision and/or denial of these benefits. That would provide for a consideration of the allegations before the very committees and subcommittees that the parties have chosen to decide these issues.
I leave it to the parties to determine how to proceed and to advise me of their intentions before our next day of hearing.
Dated at Toronto, this 15^th^ day of January, 2002.