GSB#2007-2956

UNION#2007-0430-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Flynn)

Union

• and -

The Crown in Right of Ontario (Ministry of Government Services)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Barristers & Solicitors

FOR THE EMPLOYER

Omar Shahab Ministry of Government Services Counsel

HEARING

June 18, 2009.

Decision

1The grievor, Mr. Kim Flynn, filed a grievance dated December 12, 2007 alleging that the employer violated the collective agreement and the Occupational Health and Safety Act by failing to make reasonable provisions for a healthy and safe workplace.

2The employer has taken the position that the grievance is inarbitrable on two grounds. First, that the grievance was filed outside the mandatory time limits set out in the collective agreement, and second, that the subject matter of the grievance has been settled by minutes resolving previous grievances filed by the grievor, and/or disposed of by a decision of the Grievance Settlement Board.

3This matter was scheduled for mediation-arbitration. Following discussion between counsel, the parties agreed to make submissions and obtain a ruling on the employer’s objections to the arbitrability of the grievance.

4The parties agreed that, for the purposes of this preliminary decision only, I should accept the factual assertions by the union as true, and determine whether even on that basis, there is any possibility that the grievance will be found to be arbitrable. The parties agreed that if I find that the grievance is inarbitrable even on the union’s best case, the grievance should be dismissed. On the other hand, if I conclude that the grievance may be arbitrable if the union is able to establish the facts asserted, I would then permit the parties to lead evidence pertinent to the preliminary objections, and to make further submissions, before finally determining the arbitrability of the grievance.

5I agreed to the foregoing process jointly proposed by the parties, although it is an unusual way of proceeding, where essentially the Board is undertaking to rule whether there is a prima facie case for arbitrability. The parties, in their opening statements, were of the common opinion that the hearing on the merits of the grievance would be protracted and complex. I was convinced by the parties that in the circumstances, the proposed procedure was logical, practical, and efficient.

6As per agreement of the parties, I have relied on the following sources for the relevant facts. I have accepted as true, the facts asserted by the union in a document it prepared under the hearing “Union Case Summary”, a “proposed partial Agreed Statement of Facts”, the oral presentations by counsel, and an unsworn oral deposition made before me by the grievor. In addition, I have relied on documentary evidence tendered on consent.

7The gist of the grievance is to the effect that through its actions and/or inactions the employer has caused or contributed to the grievor’s illnesses, i.e. alcohol abuse and major depression. The union acknowledged that the most recent employer conduct relied upon, the issuing of a letter of discipline dated July 27, 2005, occurred approximately 2½ years prior to the filing of the grievance, and that, therefore, the grievance was filed well beyond the time-limits set out in article 22.2.1. However, union counsel submitted that the Board ought to exercise its discretion under s. 48(16) of the Labour Relations Act to extent the time-limits, taking into account the grievor’s particular circumstances.

8Union counsel submitted that as a general rule, the union supports the Board’s jurisprudence to the effect that a party will not be allowed to relitigate grievances settled. However, he contended that the Board has retained some flexibility, in that it balances the sanctity of settlements, with the need for fairness in the particular circumstances. He argued that while there had been settlements of prior grievances involving the same employer conduct as in this grievance, none of those previous grievances involved the allegation that the grievor’s illness was related to the employer’s conduct. The instant grievance was filed when the grievor realized for the first time that the employer had caused or contributed to his illness, by failing to make reasonable provision in the workplace for his health and safety.

Timeliness

9The alleged employer conduct, which the union relies on to support the instant grievance, may be briefly summarized as follows:

• 1983: The grievor’s probation period was longer than his co-workers and no explanation was provided for this.

• October 1999 and January 2000: A supervisor belittled the grievor by making accusations and yelling at him in the presence of co-workers, resulting in the grievor feeling embarrassed and humiliated.

• The grievor was passed over for many health and safety positions, some of which were awarded to family and friends of the managers. These allegations go back to 1992, 1996, 2002 and 2003.

• Despite the grievor’s expression of interest, a number of positions were filled without competition. Some managers appointed friends and relatives to positions without running a formal competition. These allegations relate back to 1999, 2000 and 2003.

• The grievor missed work on numerous days due to his depression and alcohol abuse. Even though the grievor submitted doctor’s notes, his pay was suspended for many of these absences. In some cases, he was disciplined also. These events occurred in 2005.

10Union counsel stated that the evidence will establish the following. The grievor commenced employment with the employer on September 30, 1983. He has suffered from alcohol abuse and major depression at least from 2000. By June 2005, the illness was so severe that the grievor went off sick and has not returned to work to date. He has been in receipt of LTIP benefits since January 2006.

11From 2005 the grievor has been under the care of Dr. A. Singh, a psychiatrist. In March 2009 counsel spoke with Dr. Singh in preparation for arbitration. Dr. Singh confirmed that he has been treating the grievor for alcohol abuse and major depression since 2005. He advised counsel that he was not able to opine as to whether there was a causal connection between the grievor’s workplace experiences and his illness until he receives more information, particularly about the workplace stressors the grievor may have had. However, he did opine that individuals subject to alcohol abuse are generally more sensitive to workplace stressors. Dr. Singh informed counsel that in 2005 the grievor was in a bad and deteriorating condition with alcohol abuse and major depression, and that it continued to get worse until 2007. However, at some point in 2007, his health turned around with treatment, and the grievor continued to improve through 2008 and into 2009.

12According to counsel, it was Dr. Singh’s opinion that an individual suffering from alcohol abuse and major depression “is not necessarily in a position to seriously assess his future at the workplace,” and that the grievor may not have appreciated at the time, the need to file a grievance in a timely manner. Dr. Singh was unable to opine as to when the grievor may have first become capable of appreciating that requirement.

13The grievor’s deposition included the information that he did not even realize that he had an alcoholism issue until 2005, even though he had been abusing alcohol since 2000. When he realized that, he sought professional help. He stated that he has been “alcohol free” since November, 2005. According to him, it was only sometime in 2007 that he began to understand the nature of his illness, and realized that “the workplace had been a major contributing factor.”

14S. 48(16) of the Labour Relations Act provides;

48(16) Except where a collective agreement states that this subsection does not apply, an arbitrator or arbitration board may 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 arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension.

15In Re Becker Milk, (1978) 1978 CanLII 3436 (ON LA), 19 L.A.C. (2nd) 217 (Burkett) at pp. 220-221, the arbitrator discussed the considerations involved in deciding whether to extend time-limits under S. 48(16), as follows:

The exercise of the equitable discretion vested in an arbitrator under s. 37(5a) [now 48(16)] of 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.

16S. 48(16) requires that the arbitrator be satisfied that there are “reasonable grounds for the extension” of time-limits, and that the opposite party will not be substantially prejudiced by the extension. The existence of reasonable grounds cannot be determined in isolation. It must include a consideration of a range of factors depending on the facts of the particular case. It involves a balancing of the interests of the two parties, one of which is the potential prejudice. Thus, at p. 221, arbitrator Burkett wrote:

The term “reasonable grounds for the extension” … is not synonymous with the reasonableness of the excuse advanced by the offending party. Having regard to the purpose of the section the term carries a broader signification which requires the arbitrator to weigh a number of factors, including but not necessarily restricted to those which have been set out above.

17Some of the factors commonly considered by arbitrators were set out by arbitrator Schiff in Re Greater Niagara General Hospital, (1981) 1981 CanLII 4449 (ON LA), 1 L.A.C. (3d) 1, as follows:

1. The nature of the grievance

2. Whether the delay occurred in initially launching the grievance or at some later stage.

3. Whether the grievor was responsible for the delay.

4. The reasons for the delay.

5. The length of the delay.

6. Whether the employer could reasonably have assumed the grievance had been abandoned.

The foregoing list was not intended to be exhaustive. In each case, there may be peculiar circumstances, which may have a bearing on whether reasonable grounds for extension exist.

18Based on the very limited factual information put before me, I cannot conclude with certainty that there is no possibility that reasonable grounds may be found to exist for extension of time limits. There is simply not enough information to enable me to do the weighing and balancing required. Therefore, I have determined that I need to receive more evidence and submissions on the issue.

19The thrust of the union’s position is to the effect that due to the very nature of the illnesses the grievor suffered at the time, he was not capable of making rationale decisions about the requirements of filing a grievance in a timely manner. Assuming that the union establishes the grievor’s incapacity in that regard, particularly if there is medical evidence to that effect, that will be a reasonable excuse for the delay. However, that is not dispositive of the issue of extension of time limits. As arbitrator Burkett observed in Re Becker Milk (supra), “reasonable grounds for extension” is not synonymous with the reasonableness of the excuse advanced. That would be only one, albeit a very significant one, of the factors to be considered. All of the factors must be considered as a whole before a decision can be made on extension of time limits. I have no information to enable such an exercise. For example, the union has relied on alleged employer conduct over a long period starting back in the early 1990s. Union counsel appeared to anticipate that the employer may argue prejudice, when he stated that the union may decide not to go that far back. However, that has not yet been determined. Even the employer has not had the opportunity to assess what exact allegations are being made against it, and whether it will be prejudiced in defending against them due to the passage of time.

Is the Grievance Settlement Barred/Res Judicata?

20The proposed partial Agreed Statement of Facts” includes a “Chronology of past Grievances” filed by the grievor. These past grievances cover the period August 1992 to December 2005. For the present purposes, the grievances and their disposition may be very roughly set out as follows:

• Grievance dated August 7, 1992 related to a job competition and failure to provide equal opportunity for training.

Disposition: Denied at stage 2, referred to arbitration, hearing date adjourned and not pursued again.

• Grievance dated October 6, 1992 alleging that the employer attempted to restrict, restrain and intimidate the grievor by attempting to interfere with the administration of the employee organization.

Disposition: Denied at stage 2 and not referred to arbitration.

• Grievance dated February 23, 2000 alleging a violation of the health and safety provision of the collective agreement as a result of a supervisor chastising the grievor in a loud and rough manner in front of other staff.

Disposition: Full and final Memorandum of Settlement dated February 23, 2000 entered into without precedent and prejudice.

• Two Grievances dated October 15, 2003, each alleging unreasonable denial of developmental opportunities.

Disposition: Both grievances resolved by a full and final and without precedent and prejudice memorandum of Settlement dated May 31, 2005.

• Group grievance dated May 17, 2004 and individual grievance dated April 15, 2004, alleging a violation of, inter alia, the health and safety provisions of the collective agreement as a result of the employers practice relating to assignment of work.

Disposition: Both grievances resolved by a full and final without precedent or prejudice Memorandum of Settlement dated May 31, 2005.

• Grievance dated May 17, 2004, alleging that the employer’s method or reporting and retaining information on credits is misleading and inaccurate.

Disposition: Settled by full and final without precedent or prejudice Memorandum of Settlement dated December 1, 2004.

• Two Grievances dated December 1, 2005 alleging unreasonable, vexatious and harassing actions, in violation of, inter alia, the health and safety provision.

Disposition: Resolved by way of a full and final without precedent or prejudice Memorandum of Settlement dated December 14, 2005.

• Grievance dated October 6, 2002 alleging denial of equal access to overtime and training opportunities.

Disposition: Grievance dismissed by Board decision dated August 22, 2008 for failure to comply with time lines for filing of written submissions set by the Board.

21Based on the foregoing facts, it is the employer’s position that there is considerable overlap between the employer conduct alleged in the instant grievance and those raised in the past grievances. Thus, it is submitted that the union should not be allowed to in effect relitigate those same matters.

22While the union subscribes to the general, principle that terms of settlement are sacrosanct, it seeks an exception to that principle in the particular circumstances. The thrust of its argument is to the effect that due to the very nature of the grievor’s illness, alcohol abuse and major depression, the grievor did not have the capacity to understand the connection between the workplace stressors and his illness. He realized the connection only when his health improved in 2007, and he grieved at that time. When the grievor settled his past grievances, he was only concerned with the particular employer conduct grieved, and had no realization that the same employer conduct had contributed to or caused his illness. Counsel stressed that none of the past grievances raised the issue raised in the present grievance, namely that the employer was responsible, in whole or in part, for the grievor’s alcoholism and depression.

23In addition, the deposition of facts by the grievor raises a possible “economic duress” argument, at least with regard to one of the settlements, in that he stated that he was in such dire financial difficulties at the time that he was prepared to settle for any monetary offer.

24As with the union’s position relating to the motion on timeliness, its contention in support of re-opening settlements focuses to a large extent on the grievor’s mental condition at the time of the settlements. That is, that due to his illness, he did not appreciate the cumulative impact of the employer conduct on his health. The veracity of that argument will depend significantly on medical evidence.

25In Zubovits v. Ontario (Human Rights Commission), [2007] O.J. No. 4421; 161 A.C.W.S. (3d0 951 (Ont. Div. Ct.) at para. 30, Swinton J. made the following observation:

The applicant alleges that disability played a role in his agreement to the settlement. However, there is no medical or other evidence in the material put before the Commission to show the nature and extent of his alleged mental disability and the specific impact it had on his ability to enter into the settlement agreement. In contrast, in the Brine case on which he relies, the complainant had put forward information about his vulnerable mental condition at the time of a settlement, including reports from medical experts about his condition (Brine v. Canada Attorney General), 1999 CanLII 8725 (FC), [1999] F.C.J. No. 1439 (T.D.)). Here, the applicant alleges a mental disability without any explanation of any impairment caused by that disability that negatively affected his ability to negotiate and agree to a settlement.

26In Re Rolfe, 2003-2769 (Briggs), the grievor had asserted that because of her stress and anxiety disability coupled with the anti-depressant medication she was taking, she was not able to comprehend the employer’s offer she had agreed to. In not allowing the grievor to resile from the agreement, at p. 15 the Board noted that her assertion was supported by “too little evidence in this regard, and none of it medical”.

27The implication in those decisions is that, if medical evidence establishes that a mental condition affected an individual’s ability to rationally consider a settlement offer, he may not be held strictly to the terms agreed to. At this point I am not in a position to rule with certainty that the union would not be able to make a convincing case for proceeding with this grievance, in whole or to a limited degree, despite the prior settlements. It may well be able to do so, if there is sufficient medical evidence to support its assertions as to the grievor’s state of mental health at the time he entered into the past settlements. It is only after I receive the full evidence and submissions that I will be in a position to make an informed decision as to arbitrability.

Summary

28Particularly considering the extreme staleness of some of the events relied upon by the union, the union faces a significant hurdle in convincing the Board to extend time-limits. Nevertheless, I am not prepared at this time to rule that the hurdle is insurmountable. If the union is able to survive the objection based on timeliness, its chances of convincing the Board that it should be allowed to litigate this grievance despite the past settlements and decision depend largely on medical evidence. I trust that the observations herein will assist the parties in making decisions on how to proceed with the grievance.

29I remain seized with the instant grievance.