GSB#2009-0681

UNION#2009-0528-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Ng)

Union

• and -

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

Employer

BEFORE

Loretta Mikus

Vice-Chair

FOR THE UNION

Ryan White Cavalluzzo Hayes Shilton McIntyre & Cornish LLP Counsel

FOR THE EMPLOYER

Cathy Phan Ministry of Government Services Counsel

BY SUBMISSIONS

May 14, 21 and 30, 2010

Decision

1The grievor, Flora Ng, was an Application Analyst with the Ministry of Government Services, Business Solutions and Government Services Delivery Cluster. She was suspended on January 22, 2009, March 6, 2009 and April 23, 2009 for 1, 3 and 5 days respectively. The reasons given for all three suspensions were the same, namely insubordination for failing to attend a number of mandatory meetings and a failure to complete work assignments. On May 5, 2009 she filed the following grievance:

I grieve that Management’s improper, unfair, unreasonable actions that jeopardize my job security have violated the Collective Agreement including but not limited to Article 2 (Management’s Rights) and Article 3 (no-discrimination), the Employment Standards Act, 2000 – S,O, 2000, Chapter 41, Part XVIII Reprisal Section 74, and any other statutes and policies that may apply.

2It was during discussions prior to the commencement of the first day of hearing that the Employer became aware of the Union’s position that this grievance includes a challenge to these three suspensions. It was the Employer’s position that the Union was attempting to expand the grounds of the original grievance. In the alternative, it was submitted, if the Board should allow the Union’s position, the grievances are untimely and should be dismissed.

3The parties agreed to deal with these issues by written submissions and this interim decision deals with the Employer’s motion challenging my jurisdiction to hear this grievance on the grounds advanced by the Union and its motion to dismiss this aspect of the grievance because it was not filed in compliance with the time limits under the collective agreement.

4This grievance has been consolidated with two others concerning subsequent suspensions and a termination and there has been one preliminary decision dealing with the Employer’s motion to dismiss one of the grievances because it was filed outside of the time limits under the collective agreement. At that previous hearing the grievor testified that she filed these grievances because she felt she was being harassed for taking a family medical leave of absence. She also stated that she was under stress at the time because of her mother’s passing and that, at the time, she did not believe these suspensions were disciplinary. They were part of the pattern of ongoing harassment she was being subjected to by the employer. It was the Employer’s submission that the clear words of the grievance and the grievor’s own evidence contradict the Union’s position.

5The Employer also relied on a later grievance filed by the grievor on December 18, 2009 in which she specifically stated that she was grieving unjust discipline and referred to the three additional suspension she had received. The Employer asserted that there was no such similar language in the May 5^th grievance that relates to the first three suspensions.

6With respect to the issue of timeliness, the Employer pointed to Article 22.2.1 of the collective agreement that states employees must file a grievance within 30 days of the event giving rise to the complaint. The grievor is 2 months out of time for the first suspension and 2 weeks out of time for the second. There has been no reason given for the delays. When she was asked if the stress she was experiencing at the time affected her ability to file a grievance, she replied “it might have”. She did not rely on that as an explanation for her actions. Her evidence that she did not consider these suspensions to be discipline is neither credible or reasonable and should be rejected by the Board.

7In support of its position the Employer relied on the following cases; Re OPSEU (Blains Warden) and Ministry of Correctional Services (1989), GSB # 1152/87 (Dissanayake); Re OPSEU (Jones et al) and Ministry of Labour (2010), GSB # 2006-1204 (R. Abramsky); Re OPSEU (St. Jean et al) and Ministry of Community and Correctional Services (2004), GSB # 2001/1122 (Leighton); Re OPSEU (Berday) and Ministry of Transportation (2008,) GSB # 2007/3132 (R. Devin) and Re OPSEU (Smith et al) and Ministry of Community and Social Services (2008), GSB # 2006/2107 (O. Gray).

8The Union asserted that this grievance was proper and timely. The grievance was clearly filed in relation to disciplinary action taken against the grievor. It is broadly worded and can reasonably include the three suspensions. In the grievance Ms. Ng alleged that the Employer had taken improper, unfair and unreasonable actions that jeopardized her job security. While the grievance does not expressly use the term “suspension”, it is clear that she was taking issue with the disciplinary sanctions she had received, namely the suspensions of January, March and April of 2009. In her grievance she referred to Article 2, which includes the Employer’s right to discipline, dismiss or suspend an employee. The suspensions in question can be described as a threat to her job security and as a violation of managements’ rights under Article 2. The Union is not raising new issues but rather clarifying the events that gave rise to the grievance.

9The grievor also alleged the Employer had violated section 74 of the ESA which prohibits an employer from taking any disciplinary action against employees because they attempted to enforce their rights under the Act. Clearly the grievor intended her complaint to include everything she felt constituted harassment and reprisal. With the exception of the three suspensions of January, March and April, the Employer cannot and has not mentioned any other actions that the grievor could have been referring to in her grievance.

10The timing of the grievance is also helpful to the Union’s position. It was filed on May 5^th, two business days after the grievor returned to work from the April suspension. This Board should draw the reasonable conclusion that the grievor was referring to these suspensions when she filed the grievance. The Employer knew or ought to have known the real issue between the parties. It cannot be said that the Employer was confused by the issues raised by the grievance or has suffered any prejudice.

11The Union submitted that the jurisprudence dictates, as been approved by the Ontario Court of Appeal, that grievances should be construed broadly to deal with the real issue between the parties. Arbitrators have held that principle should be applied as long as the post-grievance elaboration of the real complaint does not create surprise which cannot be addressed by providing particulars and/or an adjournment. Ms. Ng’s allegations are sufficiently broad to encompass the three suspensions at issue. She stated in her grievance that the Employer had taken actions that jeopardize her job security. She spoke in the plural, which is consistent with the Union’s position.

12With respect to the issue of timeliness, the Union took the position that the grievance, in so far as it pertains to the April suspension, was timely. The collective agreement allows a grievor 30 days to file a grievance and the suspension was from April 24 to 30 inclusive. The grievance is dated May 5^th, well within the time limits.

13The grievance as it relates to the January suspension was filed 2 months after the event and the grievance relating to the March suspension was filed two weeks after the event. Although the grievance concerning those two events is untimely, the Board should exercise its discretion under section 48 of the Labour Relations Act, which is incorporated into the Crown Employees Collective Bargaining Act 1993 S.O. 1993, Chapter 38, and which states as follows:

Except where a collective agreement states that this subsection does not apply, an arbitrator or arbitration board may extend the time for 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.

14In determining whether reasonable grounds exist for extending a time limit, arbitrators have adopted and applied the comments of Arbitrator Burkett in the Becker Milk case (infra) which stands for the proposition that no one factor is determinative but rather an arbitrator must consider the reason for the delay, the length of the delay and the nature of the grievance.

15It was stated that the reason for the delay was the fact that the grievor had been under stress due to the death of her mother and was confused about the nature of the Employer’s actions. She did not consider these suspensions to be disciplinary but simply examples of the harassment she felt at the time. For these reasons the grievor was not negligent in responding to the suspensions. However, it was submitted, even if the Board concludes that the reason for the delay was not reasonable, the jurisprudence requires it to consider the remaining factors.

16One of those factors, it was submitted, is the length of the delay. In this case the Board is considering a 2 month delay and a two week delay, neither of which has been seen in other cases as significant enough to deny a grievor the right to have her complaint dealt with. In fact, arbitrators have stated that in the absence of substantial prejudice, an extension is the proper response. In this case the Employer cannot show it will suffer any disadvantage by the delay. Specifically, the Grievance Settlement Board has determined that similar delays have not been fatal for a grievance. In the Stone case Vice-Chair Johnston held that a 2-3 month delay was not significant.

17Finally, it was stated, the nature of the grievance should persuade the Board to extend the time limits. In this case these grievances involve employment issues that could have grave consequences for the grievor, particularly because this Board is seized of additional grievances involving further suspensions and termination. The suspensions at issue were relied on by the Employer in issuing the later discipline and should be heard.

18In support of its position the Union relied on the following cases: Re Hydro Ottawa Limited v. International Brotherhood of Electrical Workers, Local 636 (2007), 2007 ONCA 292, 161 L.A.C. (4^th) 161, 85 O.R. (3d) 727 (Ontario Court of Appeal); Re Blouin Drywall Contractors Ltd. v. United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975), 57 D. L. R. (3d) (Ontario Court of Appeal); Re Canada Post Corp and C.U.P.W. (Hickmott) 28 C.L.A.S. 387 (Adell); Re Tenaquip Ltd. and Teamsters Canada, Local 419 (Vandervende) (2002,), 2002 CanLII 79054 (ON LA), 112 L.A.C. (4^th) 60 (E. Newman); Re Ferranti-Packard Transformers Ltd. and U.S.W.A., Local 5788 (1993), 1993 CanLII 16683 (ON LA), 36 L.A.C. (4^th) 307 (Haefling); Re. Saint-Gobain Technical Fabrics Ltd. and U.N.I.T.E (2005), 83 C.L.A.S. 181 (P. Chapman); Re LCBO and OPSEU (Aleong) (1997), GSB # 1318/96; Re Ontario Clean Water Agency and OPSEU, (2001), GSB #1111/99; Re Becker Milk Company Ltd. and Teamsters, Local 647 (1978), 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217 (Burkett).

REASONS FOR DECISION

19The first issue for me to decide is whether the Union’s position in respect of the suspensions of January, March and April of 2009 is an expansion of the grounds of the original grievance. That grievance reads as follows:

I grieve that Management’s improper, unfair, unreasonable actions that jeopardize my job security have violated the Collective Agreement including but not limited to Article 2 (Management’s Rights) and Article 3 (no-discrimination), the Employment Standards Act, 2000 – S,O, 2000, Chapter 41, Part XVIII Reprisal Section 74, and any other statutes and policies that may apply.

20In the case of OPSEU (Jones et al) (supra) Arbitrator Abramsky did a comprehensive and helpful review of the jurisprudence on the expansion of grounds. In that case nine Employment Standard Officers (ESO’s) filed a group grievance alleging that a newly imposed quota of a minimum of 20 files a week constituted an “unfair workload” and “has no basis for justification as a performance measure and cannot be sustained over a prolonged period of time”. No specific provisions of the collective agreement were cited and the remedy sought was “no quota”. When the Union provided particulars in preparation for hearing, it claimed a violation of article 9 – Health and Safety- and the Occupational Health and Safety Act. The employer objected and the award deals with that issue.

21Arbitrator Abramsky began her analysis with the Blouin Drywall case (supra) and the often quoted passage by the Ontario Court of Appeal which, on page 108, states as follows:

No doubt it is the practice that grievances be submitted in writing and that the dispute be clearly stated, but these cases should not be won or lost on the technicality of form, rather than on the merits as provided in the contract and so the dispute may be finally and fairly resolved with simplicity and dispatch…. Certainly, this Board is bound by the grievance before it but the grievance should be liberally constructed so that the real complaint is dealt with and the appropriate remedy provided to give effect to the agreement provisions…

22That principle was elaborated on in the Re Electrohome Ltd. and I.B.E.W., Local 2345 (1984), 1984 CanLII 5204 (ON LA), 16 L.A.C. (3d 78 (Raynor) at p. 82:

If the issue raised at the arbitration hearing is in fact part of the original grievance, a board of arbitration should not deny itself jurisdiction based on a technical objection to the scope of the original grievance. To do so would deny the value of flexibility and would be to compel the parties to draft their grievances with the nicety of pleadings. On the other hand, if the issue raised by one of the parties is not inherent in the original grievance, for the board to permit the party to raise that issue as part of the original grievance would be to deny the parties the benefit of the grievance procedure in an attempt to resolve the issue between themselves. In fact, it would be to permit one party to substitute a new grievance for the original grievance.

23Arbitrator Abramsky referred to Arbitrator Dissanayake comments in Re Greater Sudbury Hydro Plus Inc. and C.U.P.E., Local 4705 (Armstrong Grievance) (2003), 121 L.A.C. (4^th) 193 as a helpful aid in determining whether an issue has been added to an original grievance. He stated that “to include an issue “through a liberal reading” I must be able to conclude that the employer reasonably should have understood upon reading the grievance that the issue in question was part of the grievance”.

24She stated that, in determining the issue before it, the Board must determine whether, on a liberal reading of the grievance, the issue in dispute is part of or inherent in the original grievance or whether it is an entirely new grievance. She stated that her jurisdiction began with the written grievance, which determines the scope of the grievance and that, in the case before her, there was no reference to article 9 or the OHSA. Although references to health and safety issues had arisen during the informal discussions at Stage 1 of the grievance procedure, they were not raised at the formal Stage 2 meeting.

25She also considered other GSB cases OPSEU (Houghton) and Ministry of Correctional Services, (1989), GSB # 0771/88 (Knopf) and Re OPSEU (Fung/Anand) and Ministry of Revenue (1991), GSB # 1798/89 (Stewart). In the former the Board dismissed a grievance where the original grievance challenged the practice of assigning a maintenance mechanic to Correctional Officer duties. The employer took the position that the Board lacked jurisdiction to review managerial assignments. The union argued that the assignment of duties involved a health and safety issue because the grievor had not been trained to perform those duties, specifically strip-searches on inmates. The Board determined that the health and safety issues had not been raised until the hearing and that it had not been contemplated when the original grievance was filed.

26In contrast, in the Fung/Anand grievance, (supra), the Board allowed the inclusion of a claim of discrimination where the grievor had challenged the results of a job competition. The union had pressed a claim that the employer’s emphasis on the interview adversely impacted on the applicants whose first language and culture were not English. The Board found that that allegation could reasonably fall within the general language of the grievance because it had been raised at the first stage of the grievance procedure and the union had advised the employer of its position in advance of the hearing.

27In the case before her, Arbitrator Abramsky found that even though there had been comments at the Stage 1 meeting about stress and other health concerns, those claims were never included in the written grievance that was subsequently filed. There had been no mention of stress or health concerns that could have reasonably been construed to be included or would have put the employer on notice that was the true nature of the grievance. Having dismissed the allegations of a violation of the OHSA and Article 9 of the collective agreement, the Board found it did not have jurisdiction to review management’s decision regarding the assignment of duties and dismissed the grievance.

28In the instant case I am faced with a grievance that alleges the Employer has engaged in actions that were unfair, unreasonable and a threat to the grievor’s job security. The content and intent of the grievance is to be found in the events that were occurring at the time she filed the grievance.

29According to the letter of discipline, the Employer had been attempting to discuss performance issues with the grievor and her alleged failure to cooperate was cause for various responses ranging from counselling, letters of warning and three suspensions for escalating periods of time. The suspensions were given, she was told, because she did not attend mandatory meetings, she did not complete work assignments and was insubordinate. None of these letters of counselling and warnings prior to the first suspension were grieved. She did send an e-mail to her supervisor requesting she be reimbursed for those lost days but that request referred to the two leave days she had taken under the ESA. She stated that she did not grieve because she was trying to be cooperative but that the suspensions were getting longer and longer. She filed the grievance because she felt all of the Employer’s actions were harassment.

30When one considers these events, it is reasonable to conclude she was referring to the Employer’s attempts to manage her performance, including these suspensions, when she filed the grievance. She felt she was being harassed because she had taken time off and these suspensions were part of that harassment. I was not told of other actions that could explain the grievor’s use of words like “improper” “unfair” and “unreasonable”. More telling is her reference to the jeopardy these employer actions had on her job security. I am of the view that those words were intended to apply to the suspensions of January, March and April of 2009. When the grievance was filed the Employer knew or ought to have known the real issue between them.

31The suspensions of January, March and April are not separate issues but rather an extension of her allegations of harassment. The grievance was filed within days of her return to work following the April suspension and fall within the nature and ambit of the grievance. To that extent, the Employer’s motion to dismiss the grievance as it relates to the suspensions of January, March and April, 2009, is dismissed.

32The Employer has also raised an objection to my hearing the aspects of the grievance relating to these suspensions on the basis of timeliness. The first suspension took place two months before the date on the grievance, the second two weeks before the grievance. However, given my ruling on the inclusion of these grievances on the grounds of the allegation of harassment, they are not proceeding as discrete incidents but rather as part of the harassment the grievor felt she was being subjected to at the time. As such, the ongoing nature of the allegations brings them within the ambit of the original grievance and are, therefore, timely.

33For that reason the Employer’s motions are dismissed. The hearings will proceed on the dates agreed to by the parties.