GSB# 2804/96
UNION# 97B307
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Wilson)
Grievor
- and -
The Crown in Right of Ontario (Ministry of Health)
Employer
BEFORE
Randi H. Abramsky
Vice-Chair
FOR THE UNION
Graham Williamson Koskie Minsky Barristers and Solicitors
FOR THE EMPLOYER
Andrew Baker Counsel Management Board Secretariat
HEARING
January 24 and November 8, 2002.
AWARD
This decision deals with a preliminary motion made by counsel for the employer to dismiss the grievance before me on two bases: (1) that it was not timely filed, and (2) that it is barred by a prior settlement.
Facts
On October 18, 1996, the grievor, Douglas Wilson, filed the following grievance:
I grieve that because of the inhumane way my Ministry officials and management treated me during my illness, I am holding them responsible for me going on L.T.I.P and C.P.P. disability. I hold them fully responsible for all the stress and harassment which led to my M.I. [mental illness] and severe mental depression. According to my doctors in recent medical documentation I will never work again. To be counseled and rehabilitated for any work will never happen because of my health.
It is undisputed that all of the alleged events which are the subject of the 1996 grievance – the alleged incidents of inhumane treatment, stress and harassment - occurred prior to November 1988. In a March 12, 2001 statement of particulars, the events which are the subject of the grievance are set out. Solely for the purposes of the Employer’s preliminary motions, those particulars are accepted as true.
The parties’ also submitted two will-say statements, one by the grievor, and one by Don Coutts, who has served in human resources with the Ministry of Health and Long Term Care since 1973. During the relevant period, Mr. Coutts served in a human resources capacity for the Windsor Central Ambulance Communications Centre, at which the grievor was employed. To the extent that the two will-say statements varied as to dates of certain events, the Union agreed that Mr. Coutt’s evidence should be preferred.
The particulars, combined with the will-say statements, show that the events which are the subject of the 1996 grievance began in March 1986, when the grievor learned that his then-four year old son had a brain tumor which required surgery. The grievor took time off work to attend the surgery and was absent from March 19 to March 28, 1985. Unfortunately, the grievor’s son had to be re-admitted on April 12, 1985 because of a life-threatening complication, and the grievor took additional time off work from April 12 to April 28, 1985. The grievor requested compassionate leave for his absences but that request was turned down on July 5, 1985. A grievance followed, which was resolved through a settlement in June of 1986. Mr. Wilson, who had used vacation and lieu time to cover his absence, received the vacation time and credits back.
In July 1985, the grievor received a letter from his manager, stating that, although he realized that Mr. Wilson was under stress, he was concerned about his abilty to attend work on a regular basis. Mr. Wilson spoke to his Union about the letter, a grievance was filed and resolved at stage II of the grievance procedure on September 4, 1985. The letter was removed from Mr. Wilson’s file.
According to the particulars, Mr. Wilson was undergoing tremendous emotional stress due to these proceedings and the harassment at work by his manager. Mr. Wilson’s manager had refused him earlier shift changes and was pressuring him to take his lieu time by June 15, 1986, in violation of the collective agreement. On May 12, 1986, the grievor’s supervisor threatened him that management would build a negative case on him to make it easy to suspend him.
On May 16, 1986, Mr. Wilson’s doctors gave him a letter saying that he should not be working due to “severe agitated depression” and he remained off work until August 14, 1986.
He then sought compassionate leave under Article 30 of the collective agreement for one day on October 9, 1986 to accompany his son for a C.T. scan. In response, he was required to answer a number of different questions about the legitimacy of his request by various managers before they would consider it. On January 19, 1987, he was granted compassionate leave, but not under Article 30 (which was leave with pay) but rather under Article 54 (which required him to use his vacation credits to pay for the leave). On February 3, 1987, Mr.Wilson filed a grievance on this matter, alleging that the denial of his request “for no reason” caused him “mental stress and anxiety” and has “made me absent from work on sick leave…”
On August 13, 1986, Mr. Wilson filed a complaint with the Ontario Human Rights Commission against his employer, complaining of harassment by his manager because of his handicapped son. The substance of the complaint is almost identical to paragraphs 2, 3, 4, 5, 6, 7 and 8 of the statement of particulars filed in the instant grievance.
On January 23, 1987, an unfortunate incident occurred at work during his shift for which he was held responsible. His doctor removed him from work effective January 26, 1987. By letter dated February 3, 1987, Mr. Wilson was advised that a pre-disciplinary hearing would be held to advise him of the facts of the investigation concerning the incident on January 23, 1987. On February 6, 1987, Mr. Wilson went to the emergency room of the local hospital due to depression and anxiety and saw the social worker. The social worker issued a report dated February 6, 1987 which stated that the grievor’s difficulties at the workplace were caused by the “non-empathetic” response of his needs arising from his son’s illness.
By letter dated February 13, 1987, the Ministry of Government Services and Employee Counseling disclosed (with Mr. Wilson’s consent) that he was a client of the Vocational Rehabilitation Program in the Employee Counseling Services and concurred with the recommendation that Mr. Wilson should not be working at that time.
Mr. Wilson’s condition worsened and his physician advised hospitalization for acute agitated depression, but Mr. Wilson wished to attend his pre-disciplinary hearing on February 17, 1987. On February 20, 1987, Mr Wilson’s physician advised that he was alarmed by the grievor’s condition following the pre-disciplinary meeting and stated that subjecting him to it was a form of mental cruelty.
On March 11, 1987, the Director of the Ambulance Services Branch wrote to Mr. Wilson that his actions on January 23, 1987 were subject to discipline, but that his physical and mental health were cause for concern and might be mitigating circumstances in this matter. He then ordered Mr. Wilson to attend a mandatory physical and psychiatric review.
Mr. Wilson’s physician objected to this review on the basis that it would be detrimental to Mr. Wilson’s mental and physical well-being, and he referenced the numerous documents that he had provided indicating the severity of Mr. Wilson’s condition.
On March 21, 1987, Mr. Wilson filed a grievance against the employer for violating his rights and jeopardizing his health and safety by causing unjust mental cruelty and harassment.
In March, 1987, Mr. Wilson was assessed by a psychiatrist specialist at the Hotel Dieu Hospital in Windsor and diagnosed as suffering from a depressive reaction with agitational and obsessional features.
In October 1987, Mr. Wilson had a heart attack. He then went on what was referred to as “Long Term Income Protection” benefits. On or about October 13, 1987, he was asked to turn in his keys, uniforms and gate pass by his supervisor.
On November 30, 1987, the grievor was suspended without pay for 20 days for his actions on January 23, 1987. In the letter, the Regional Manager claimed that the delay in the discipline was in view of Mr. Wilson’s health problems. Because the grievor was not attending work, however, the suspension was not immediately served. On December 21, 1987, Mr. Wilson grieved the discipline.
On December 29, 1987, Mr. Wilson was referred for a cardiovascular assessment following his release from the hospital. He was diagnosed as a patient with coronary sclerotic heart disease, convalescing from a recent extensive anterior wall infarct.
By letter dated January 18, 1988, Mr. Wilson’s physician wrote to the Grievance Settlement Board advising that Mr. Wilson’s recovery was being delayed due to the delays in dealing with his grievances.
On February 2, 1988, Mr. Wilson applied for a special compassionate leave under Article 30 for his absence from May 15 to August 24, 1986 during his first episode of depressive illness.
On April 13, 1988, Mr. Wilson’s physician wrote to the manager of the Windsor Central Ambulance Dispatch Centre advising that Mr. Wilson could return to work on May 16, 1988 as a radio dispatcher with the limitation that he work no more than 24 hours a week, no more than 8 hours per day and not be required to lift more than 20 pounds. The record is not clear whether the grievor actually returned to work at this time.
On June 13, 1988, the Grievance Settlement Board began a hearing on Mr. Wilson’s grievances and five additional dates were set for November 1988.
On July 25, 1988, the grievor’s doctor advised that Mr. Wilson was “able to resume regular duties.” On August 8, 1988, the Director wrote to the grievor, advising him that as a result of his clearance to return to work, his benefits under the Long Term Income Protection plan would cease, effective August 5, 1988, and on that date he would be declared surplus under then Article 24 of the collective agreement. No vacancies were identified for the grievor, and he was placed on a leave of absence without pay until August 19, 1988 when he exercised his seniority rights to bump another employee from an ambulance dispatcher position. Mr. Wilson filed a grievance dated July 29, 1988 concerning this matter.
In a settlement dated November 3 and November 16, 1988 to settle “all outstanding matters between the Grievor and the Employer”, all of the grievor’s outstanding grievances, as well as his complaint before the Ontario Human Rights Commission, were resolved. The settled grievances included the February 3, 1987 grievance (regarding the denial of compassionate leave under Article 30); the March 21, 1987 grievance (regarding the allegation that the employer was jeopardizing the grievor’s health and safety to the extent of causing unjust mental cruelty and harassment); the December 21, 1987 grievance (regarding the 20-day suspension); the July 29, 1988 grievance (regarding his being declared surplus) and the August 13, 1986 complaint before the Ontario Human Rights Commission. The discipline was reduced to a five-day suspension and the letter of discipline was amended, with a twelve-month sunset clause for the revised letter of discipline. The grievor was compensated for the period August 8, 1988 to the date of his return to work on August 19, 1988, and any vacation credits he used during that period were restored. In addition, the grievor was paid the sum of $158.70.
In early March 1989, the grievor went off work with chest pain. He was off on short-term sickness benefits from March 6, 1989 to August 30, 1989. Effective August 31, 1989, he went on L.T.I.P. benefits, flowing from his inability to perform his home position. Effective August 31, 1991, he continued on L.T.I.P. benefits, flowing from his inability to perform any occupation. Also, during this time, Mr. Wilson began to receive a Canada Pension Plan Disability Pension. He continues to receive monthly benefit cheques from both plans.
In Mr. Wilson’s will-say statement, he relates his medical history since March 1989. His last surgery for his heart condition appears to have been in 1990, although complications arose in late March 1994 which required an 8-day hospitalization. In addition, his chest surgery resulted in a ventricle hernia which required three operations between 1993 and 1995.
Further, Mr. Wilson’s father developed an abdominal aneurysm and underwent surgery for which he was hospitalized for 35 days. Subsequent to his release, he suffered a series of small strokes, and ultimately passed away in December 1994.
Shortly thereafter, the grievor’s mother-in-law became critically ill, and ultimately passed away in June 1995.
The grievor states that health problems prevented him from filing a grievance prior to 1996. As of 1996, the grievor ceased his weight gain, and in fact, reduced his weight, and got his diabetes and blood sugar levels under control.
The grievor further states that in 1995, he met with a former co-worker, Gerald Redmond who, subsequent to a heart attack, had medical restrictions which indicated that he was only able to work 8 hours per day, not the twelve hours per day required by the Employer. The Grievor understood that the Employer had refused or been unable to take Mr. Redmond back on a reduced work week. Accordingly, Mr. Redmond applied for LTIP, but his claim for benefits was rejected on the basis that he was fit and able to perform 8 hours work per day. The grievor attended with Mr. Redmond at the Grievance Settlement Board, and understands that a mediated settlement was reached which awarded Mr. Redmond a lump sum payment. As a result of this settlement and his discussion with Mr. Redmond, the grievor began to wonder if he was eligible to file a grievance of any sort. The grievor states that he first spoke to the Union about the possibility of filing a grievance in October 1996, and that the grievance was filed shortly thereafter.
The will-say statement of Mr. Coutts, however, refutes the timing of the grievor’s recollection of the grievance of Mr. Redmond. According to Mr. Coutts, and the documentation he provided, the only grievance filed by Mr. Redmond was dated July 29 1988 (the same date as the grievance filed by the grievor.) It was also signed by the grievor, as Union steward, and it was identical to the July 29, 1988 grievance filed by the grievor. Further, Mr. Redmond’s grievance was settled at the Greivance Settlement Board on August 8, 1990, not in 1995.
The grievor acknowledged that he was previously active in the Union, and held Union offices in the Late 1970s and early 1980s. The positions held were steward, secretary-treasurer and local president. He states that his last position expired in 1981.
According to Mr. Coutts, however, the grievor was known to him as a union steward in the late 1980s, as evidenced by his signing Mr. Redmond’s grievance in that capacity and his attending the Stage II meeting for the grievance of Mr. Redmond. Further, he states that Mr. Wilson was elected as an official delegate to attend a Regional Wage Negotiation Demand Setting meeting on September 16-17, 1988 and was elected as Director of the Ambulance Divisional Employee Relations Committee Team for Region 1 for the Union.
Decision
Article 22.2.1 of the relevant collective agreement (the 1994-98 agreement), provides as follows:
It is the mutual desire of the parties that complaints of employment be adjusted as quickly as possible and it is understood that if an employee has a complaint, the employee shall 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 have come to the attention of the employee in order to give the immediate supervisor an opportunity to adjust the complaint.
Article 22.2.1 has been held to require an objective standard, as opposed to a subjective standard, in assessing whether a grievance is timely. OPSEU (Narine-Singh) and Ministry of Education and Training, GSB No. 0035/98 (Leighton); OPSEU (Joly) and Ministry of the Solicitor General and Correctional Services, GSB No. 1009/97 (Brown); OPSEU (Upshaw) and Ministry of Health, GSB No. 2163/97 (Abramsky). Under this standard, it is not when the grievor actually knows he or she has a complaint, but when, on an objective basis, the circumstances giving rise to the complaint occurred or came to or “ought reasonably have come to the attention of the employee…”
In this case, I conclude that the grievance was not filed within 30 days of the circumstances giving rise to the complaint, or came to or ought reasonably have come to the grievor’s attention, but instead, was filed years later.
The October 16, 1996 grievance alleges as follows:
I grieve that because of the inhumane way my Ministry officials and management treated me during my illness, I am holding them responsible for me going on L.T.I.P and C.P.P. disability. I hold them fully responsible for all the stress and harassment which led to my M.I. [mental illness] and severe mental depression. According to my doctors recent medical documentation I will never work again. To be counseled and rehabilitated for any work will never happen because of my health.
There is no dispute that the circumstances giving rise to the complaint in this matter all took place before November 1988. The grievance alleges a course of conduct by the employer, beginning in March 1985 and continuing until November 1988, which caused him to become mentally and physically ill. That the grievor was aware of a causal link between the employer’s alleged actions and his deteriorating physical and mental well-being is clear from a number of the grievances which he filed during this period of time, particularly the March 1987 grievance which alleged that the employer violated his rights and jeopardized his health and safety by causing unjust mental cruelty and harassment. Under these facts, the grievor knew about the circumstances giving rise to the complaint by November 1988.
The Union argues, however, that what the grievor did not know then was that his illness would preclude him from ever working again. His grievance asserts that the Ministry’s conduct during his illness was the direct cause of his “going on L.T.I.P. and C.P.P. disability” and his never being able to work again. If those “facts” constitute part of the “circumstances giving rise to the complaint”, the question becomes – when did those circumstances arise, when did they come to the grievor’s attention, or when should they “ought reasonably have come to the attention of the” grievor?
Based on the evidence presented, the grievor went on L.T.I.P. and C.P.P. disability and knew that he would not be able to work again as of August 31, 1991, at the latest. On that date, the grievor was determined to satisfy the more stringent standard for disability under L.T.I.P. which, as set out in Article 70.2.4 of the collective agreement, required that he be “unable to perform the essential duties of any gainful occupation for which he or she is reasonably fitted by education, training or experience.”
Clearly, it was in August 1991, when the definition for receipt of L.T.I.P. changed from being totally and permanently disabled from his own occupation to being totally and permanently disabled from his own or any other occupation, that the final “circumstance” giving rise to the grievance arose. There was no evidence presented of any changed circumstances or new medical documentation or diagnoses in 1996, or indeed at any time after August 1991. Under the facts presented at the hearing, the grievor knew, as of August 1991, that he was totally and permanently disabled from his own or any other occupation. Consequently, even assuming that the “circumstances giving rise to the complaint” include his going on L.T.I.P. and C.P.P. disability and his inability to ever work again, all of the circumstances giving rise to the complaint occurred, came to his attention, or ought reasonably have come to the attention of the grievor by August 31, 1991, at the latest.
In so ruling, I cannot accept Union counsel’s argument that it was not until the grievor’s health started to stabilize in 1994 to 1995, that the circumstances giving rise to the grievance arose. Counsel submitted that the grievance involves more that Mr. Wilson’s going onto L.T.I.P. and C.P.P. disability, but includes all of his health problems and the fact that he was never going to work again. The will-say statement of Mr. Wilson, however, does not indicate that his health did not stabilize until 1994-1995. The evidence submitted shows that there were substantial periods of time – 1991 and 1992 – without any major new health issues arising. From the evidence submitted, those years appear to be a period of stability.
In addition, there is no evidence of any new “circumstance” relevant to his grievance which arose after August 31, 1991. There is no evidence of anything new in regard to his inability to work that occurred after that date. Although his grievance states that his “doctors in recent medical documentation [state that] I will never work again”, that was not a new circumstance which first arose in 1996. He first became aware of that unfortunate fact – at the latest – by August 31, 1991.
There is no evidence to support the grievor’s assertion that he was incapable of filing his grievance until November 1996. The medical information contained in Mr. Wilson’s will-say statement does not support that conclusion. While it does it establish that there were substantial periods of time that he, due to hospitalizations, operations, or personal circumstances, may not have been able to file his grievance, there were clearly other periods when he could have done so but did not.
Nor was Mr. Wilson unaware of his right to file a grievance. That is evident from his earlier, timely filing of grievances about some of the circumstances involved in October 1996 grievance, as well as his active role as a union steward and local president.
There is also no basis to conclude that the grievor learned anything in 1995 from the settlement of the grievance of Mr. Redmond. The evidence shows that Mr. Redmond’s grievance was settled in 1990, not in 1995, and that the grievor was aware of that grievance from its inception on July 29, 1988. Mr. Redmond’s grievance was identical to the grievance filed by Mr. Wilson on the same date, and that grievance was resolved by Mr. Wilson in the November 1988 settlement.
Consequently, on the specific facts presented, I conclude that the October 16, 1996 grievance was filed over five years after the last circumstance giving rise to the grievance arose.
The issue then arises whether there is any basis to exercise my discretion under Section 48(16) of the Labour Relations Act to relieve against the time limits contained in the parties’ collective agreement. Section 48(16) provides arbitrators with the discretion to extend the time limits found in a collective agreement, if there are reasonable grounds for the extension and the opposite party will not be substantially prejudiced by allowing the grievance to proceed. The parties agreed that the factors to be considered in deciding whether there are reasonable grounds for extending the time limits were outlined in Re Becker Milk Co. and Teamsters Union (1978), 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217 ( Burkett), at p. 220:
The exercise of the equitable discretion vested in an arbitrator under…the Act requires a consideration of at least three factors. These are: ( 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 this case, there was no valid reason presented for the substantial delay in filing this grievance. As noted above, there was no evidence that the grievor was incapable, physically or mentally, from filing the grievance until October 1996. Certainly, there were periods of time when he could not have filed the grievance, but there were also times, long before 1996, when he could have done so. Under the facts presented, Mr. Wilson did not act with due diligence.
I also find that the more than five-year delay in this case was truly extreme. In OBLEU (Gamble) and LCBO, GSB No. 1635/96 (Gray), a delay of “nearly 24 months” was found to be “extreme”. In OPSEU (Rondeau) and Ministry of the Solicitor General and Correctional Services, GSB No. 217/97 (Leighton), at p. 8, a 26 month delay was determined to be “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.” Here the delay is over five years. There was no case cited by the Union which comes even close to allowing a delay of this magnitude.
The main thrust of the Union’s argument was that the nature of this grievance compelled a hearing on the merits. There is no question that the October 1996 grievance involves very serious allegations and very serious issues. The grievance essentially claims that the employer, through its actions, ruined Mr. Wilson’s mental and physical health to the extent that he can never work again. But the nature of the grievance is only one factor, and it simply cannot, by itself, lead to a conclusion that there are reasonable grounds to extend the 30-day time limit negotiated by the parties in their collective agreement for a five year period.
In other cases cited by the Employer, arbitrators have declined to exercise their jurisdiction to extend the time limits, despite serious allegations of a long-standing pattern of discrimination, harassment and mental cruelty, or sexual harassment. See, e.g., OPSEU (Joly) and Ministry of the Solicitor General and Correctional Services, GSB No. 1009/97 (Brown) (a 10-month delay); OPSEU (Rondeau) and Ministry of the Solicitor General and Correctional Services, supra (a 26-month delay).
I further conclude that the employer would be substantially prejudiced by an extension of the time limits in this matter. The employer’s actions which form the basis of the grievance all took place before 1988, eight years before the grievance was filed. The passage of so many years may be viewed as presumptively prejudicial. As noted by Vice-Chair Gray in OBLEU (Gamble) and LCBO, supra at p. 13, even where there is no identifiable specific prejudice resulting from the delay, the prejudice caused by delay may be more subtle:
The memories of witnesses who are still available will nevertheless have faded, particularly if there has been no notice that they may have to testify about those memories. As a result, their testimony may be or may seem less reliable, and thence less persuasive, than it would have if there had been timely notice of the dispute. …
Counsel for the Union argues, however, that this situation does not apply here because there were earlier grievances, so the parties were on notice that the employer’s actions were being challenged. This argument, however, ignores the fact that those grievances were settled in November 1988, and eight years went by before the October 1996 grievance concerning those same factual matters was filed. Under this circumstance, there was no timely notice that witnesses might be required to recall these events. Quite to the contrary, the settlement of those grievances would have led the individuals involved to the opposite conclusion.
Accordingly, for the reasons set forth above, I conclude that this is not an appropriate case to exercise my discretion under Section 48(16) of the Labour Relations Act to extend the time limits for filing a grievance.
Further, because I conclude that the grievance was not timely filed, I need not address the Employer’s other argument that the 1996 grievance is barred by the November 1988 settlement.
To conclude:
The October 1996 grievance was not timely filed. It was not filed within 30 days of when the circumstances giving rise to the complaint occurred, or came to or ought reasonably have come to the grievor’s attention, but indeed, was filed more than five years later.
There are not reasonable grounds to extend the time limits set forth in the parties’ collective agreement under Section 48(16) of the Labour Relations Act, and to do so would substantially prejudice the employer.
Accordingly, the grievance must be dismissed as it was not timely filed.
In so ruling, I need not consider the Employer’s other argument that the 1996 grievance is barred by the November 1988 settlement.
Issued at Toronto this 28th day of November, 2002.