GSB#2007-0514, 2007-0515, 2007-0628, 2007-0899, 2007-2415, 2007-2416, 2010-1176,

2010-1177

UNION#2007-0429-0001, 2007-0429-0002, 2007-0429-0003, 2007-0429-0004,

2007-0429-0006, 2007-0429-0007, 2010-0429-0002, 2010-0429-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Finnan)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Reva Devins

Vice-Chair

FOR THE UNION

Jennifer Fehr Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Susan Munn Ministry of Government Services Labour Practice Group Counsel

HEARING

November 15, 2010.

Decision

1The parties entered into Minutes of Settlement, (“MOS”) on June 16, 2009. I remained seized and an issue now arises with respect to compliance with the terms of the MOS. The Grievor has also filed two additional grievances, which, although not technically arising from the implementation of the MOS, the parties have agreed should be determined in these proceedings. The parties further agreed that this matter should be determined as a true mediation/arbitration pursuant to Article 22. 16 of the collective agreement and that this decision is to be without prejudice or precedent.

Facts

2The relevant provisions of the MOS are as follows:

Whereas the Grievor initiated a series of allegations under the WDHP Policy and the Conflict of Interest and Post-Service Directive; and

Whereas the Employer terminated the Grievor on October 30, 2007; and

Whereas the Grievor was granted entitlement to long term disability benefits and continues to be in receipt of benefits as of the date of signing; and

Whereas due to HR Transformation and revisions to the scope of the OPSEU bargaining unit, the Grievor’s previous position as HR Assistant in the Ministry of Transportation is no longer available within the Ministry nor is it included in the OPSEU bargaining unit; and

Whereas the parties wish to settle all of the above noted grievances; therefore

THE PARTIES AGREE to a full and final settlement of the above-noted grievances without precedent and without prejudice to any future and/or similar matter on the following terms:

1. The Employer agrees to rescind the Grievor’s dismissal and will remove the letter of dismissal from the Grievor’s personnel file within 30 days of the ratification of this agreement.

2. It is understood that the Grievor shall continue to receive Long Term Disability payments pursuant to Article 42 of the Collective Agreement subject to the qualification that rehabilitative employment under Article 42.7 shall not be with the OPS unless the terms set out in paragraph 3 are fulfilled. It is understood that the grievor’s entitlement to receive LTD payments shall continue until she is no longer eligible as determined by the Insurer.

3. The parties agree that before the Grievor can return to rehabilitative or full-time employment with the OPS, she shall provide the Employer medical evidence satisfactory to the Employer that she is able to return to work and, if the Employer is not satisfied with the medical evidence provided, the Employer shall have the right to require the Grievor to submit to an independent medical examination at the expense of the Employer.

4. If the Employer is satisfied that the Grievor can return to work, the Grievor shall be entitled to return to a position in the OPSEU bargaining unit in accordance with the applicable provisions of the collective agreement in force at the time. …

5. The parties agree that this written settlement constitutes the complete agreement between the parties in relation to the above noted grievances and any related matters. The parties agree and acknowledge that they have not made any verbal or other agreements beyond what is contained in this written settlement.

6. The Grievor acknowledges that by signing these minutes of settlement, she understands them, and that she signs them having been fully and fairly represented by union counsel.

7. The parties agree that Vice-Chair Devins will remain seized to deal with any issues regarding the implementation or interpretation of this agreement.

3It was understood by the parties that, in accordance the MOS, Ms. Finnan would be reinstated and that she would be eligible for health and welfare benefits effective October 30, 2007. Ms. Finnan submitted receipts for payment, some of which were paid, whereas others were not. In her correspondence with the insurer she initially received letters advising that she was allowed $0 because she was terminated. Ms. Finnan questioned whether the Employer had advised the relevant insurers that she had been reinstated. The Union asserts that the Employer has breached the MOS insofar as it failed to advise the insurers that Ms. Finnan was reinstated.

4The Grievor returned to work in February of 2010. She was assigned to rehabilitative employment with the Ministry of Natural Resources. She completed that assignment in March 2010 and was ready as of that date to return to a full time assignment. On March 8, 2010, she met with Alan Hogan, Director of Human Resources for the Ministry of Transport (“MTO”). He advised her that her former position was no longer with the Ministry and that she was being surplused. Her effective surplus date was March 23, 2010, which was a full year after her former position was transferred to HR Ontario. Many of her former colleagues had moved to HR Ontario in non-bargaining unit positions and at a higher classification.

5Ms. Finnan elected to be redeployed within the Ontario Public Service. On April 19, 2010 the Grievor was matched to a position in Municipal Affairs and Housing as an OAG 8, her former classification in MTO. Ms. Finnan has been in her new position since April 26, 2010. On March 24, 2010, the Grievor filed a grievance alleging discrimination in the assignment of her new position and that she was incorrectly surplused.

6Ms. Finnan asked to review her corporate file during the redeployment process. It was requisitioned from storage and Ms. Finnan reviewed it in the presence of Christy Moreland, HR Advisor. The Grievor stated that when she reviewed her file, it contained an unsealed envelope containing an IME report from several years ago. The Employer acknowledged that the file included a copy of this report but Ms. Moreland, who did not attend the arbitration, had reported that the envelope was sealed. Ms. Finnan grieved the Employer’s failure to protect her confidential medical information. She filed the grievance on May 19, 2010, citing MTO as her Employer/Ministry.

7By letter dated June 9, 2010, the Employer advised that the grievance was improperly filed, as Ms. Finnan was no longer an employee of MTO. The Employer further confirmed that the matter should be raised with Ms. Finnan’s current manager in accordance with Article 22.3.1 of the Collective Agreement. Finally, the Employer stated that a Stage Two meeting would not be convened and that it intended to object to the grievance as inarbitrable if it was advanced any further.

Submissions

8The Union submits that the Employer would be in breach of the MOS if it had failed to advise the relevant insurers that Ms. Finnan had been reinstated. The Employer maintains that it notified the relevant insurers of the Grievor’s ongoing employment status. For the sake of clarity, however, the Employer also agreed that the Benefits Policy Branch of MGS would provide further clarification to Great West Life and Manulife, advising them that the Grievor was reinstated effective October 30, 2007 and should be treated accordingly for the receipt of benefits. The Union accepts this as an adequate response.

9With respect to the second grievance, in which the Grievor alleges that she was improperly surplused and that the Employer acted in a discriminatory manner, the Union does not take issue with the Employer’s conduct or the assignment of the Grievor to a position within the bargaining unit. To the extent that Ms. Finnan is challenging the adequacy of her Union representation, the Union submits that that is not an issue that can be put before the GSB and must be dealt with in another forum.

10The Grievor believes that she was treated differently than her colleagues and that the differential treatment was a result of anti Union animus. She further believes that the elimination of her original position after it was the subject of her previous grievance was a form of retaliation. The Grievor maintains that she did not fully understand the consequences of signing the MOS and that she has concerns with her representation at mediation.

11The Employer says that it acted in accordance with the terms of the MOS and offered Ms. Finnan a position within the bargaining unit as required by paragraph 4. With respect to the elimination of her position at MTO, the position was eliminated as result of HR Transformation, an OPS wide restructuring plan. The reorganization took place over a long period, affected many employees and was not specific to the Grievor’s position or to MTO. No particulars were offered nor was any evidence led to support the Grievor’s claim that the Employer’s actions were by way of retaliation or were discriminatory. The Employer agrees with the Union submission that this is not the proper forum to determine the Grievor’s concerns regarding Union representation. The Employer requests that the grievance be dismissed.

12Finally, in respect of the third grievance, the Union submits that the Employer has failed to adhere to the policy set out in the Health Information Manual. Paragraph 4.3, Best Practices, includes the directive that a sealed health information envelope should be maintained in an employee’s Corporate Human Resources File. The Grievor discovered her personal health information in an unsealed envelope. She found this terribly upsetting and it had a negative impact on her mental health. By way of remedy, the Grievor is seeking damages for pain and suffering. She is also seeking an order that the IME report be destroyed. In the alternative, the Union asks for a declaration that the IME be maintained in a sealed envelope in the Corporate HR File and that access be restricted to individuals who have signed the envelope stating why access is required.

13The Employer argues that the grievance was inarbitrable and should be dismissed. The grievance procedure contemplates that grievances will be raised with the employee’s immediate supervisor. Ms. Finnan did not do so. She was put on notice that she had failed to follow the grievance procedure and that the Employer would raise a preliminary objection that the grievance was inarbitrable. The Employer relies on OPSEU (Samsone) v. Ministry of Community Safety and Correctional Services, GSB No. #2005-3698 (Petryshen). In the alternative, the Employer submits that it has not breached any policy directives and has maintained the confidentiality of the Grievor’s health information. The Employer agrees that the Grievor’s IME should be kept in a sealed envelope and submits that this was done.

Decision

14The first issue raised by the Union is the breach of the MOS. The Union alleges that the Employer would be in breach of the agreement if it failed to notify the relevant insurers that Ms. Finnan had been reinstated. Ms. Finnan was particularly concerned that only some of the receipts that she submitted were reimbursed after her reinstatement. The Employer maintains that it has advised the insurers of the Grievor’s ongoing employment status.

15The evidence does not support a finding that the Employer breached the MOS as alleged. The Grievor submitted a number of receipts for expenses incurred during her period of termination. She acknowledges that she was reimbursed for some, but not all, of these claimed benefits after the MOS were signed. I regard the fact that some receipts were reimbursed as confirmation that the Employer notified the insurers that Ms. Finnan was reinstated. If the insurers had not been advised that Ms. Finnan was reinstated, she would not have been eligible to receive any benefits. In any event, the Employer has agreed to provide further clarification to the insurers and the Union accepted this as sufficient. In the circumstances, I dismiss the grievance regarding the breach of the MOS.

16I would also dismiss the second grievance. The Grievor alleges that the Employer acted in a discriminatory manner when she was assigned to a different position than her former colleagues and that they eliminated her position as retaliation for filing grievances. The Union does not take issue with the Employer’s conduct.

17In my view there is no evidence to support the Grievor’s allegations. The Grievor was terminated in October 2007. In June 2009, she signed MOS that required the Employer to reinstate her to a position in the OPSEU bargaining unit. The MOS also acknowledged that, as of June 2009, the Grievor’s previous position as an HR Assistant in MTO was no longer available in the Ministry or included in the OPSEU bargaining unit. It was thus abundantly clear at the time the MOS was signed that Ms. Finnan could not be returned to her former position. Moreover, it was also manifestly clear that her position was subject to OPS wide corporate restructuring, as were many other positions.

18Ms. Finnan remained on LTD and only returned to work several months after entering into the MOS. She was subject to the normal surplus procedure, electing for redeployment. The Employer subsequently acted in compliance with the terms of the MOS and the Grievor was redeployed to a position within the OPSEU bargaining unit. She was assigned to a position at her former classification in the Ministry of Municipal Affairs and Housing.

19I accept that Ms. Finnan was disappointed when she returned to work and discovered that her colleagues that were transferred to HR Ontario did so at a higher classification. Nonetheless, those are excluded positions and could not have been offered to the Grievor under the terms of the MOS. I accept the submissions of both the Union and the Employer that any dispute that Ms. Finnan might have with the adequacy of the Union’s representation is properly dealt with elsewhere. I do not have jurisdiction to entertain those arguments.

20With respect to the final grievance, the Employer has asked that it be dismissed as inarbitrable. Having carefully considered the arguments, I have determined that it would be inappropriate to dismiss it on this basis. The facts of this case are not like those in Samsone, which was relied upon by the Employer. In Samsone, Vice-Chair Petryshyn found that there had been a complete failure to comply with the grievance procedure. The grievor made no effort to discuss the matter with his supervisor or file the grievances with management. Rather, the grievances were prepared and sent directly to the Union’s head office, and then referred by the Union to the GSB. The grievor in Samsone thus wholly disregarded the collective agreement, making no efforts whatsoever to follow the grievance procedure or resolve the matter with the Employer. Vice-Chair Petryshen stated his conclusion as follows:

Arbitrators have consistently found that a failure to comply with the grievance procedure will deprive the arbitrator of jurisdiction to hear a grievance. What has occurred in the instant case goes beyond a mere technical breach of the grievance procedure. It is my conclusion that the complete failure to comply with the grievance procedure, particularly the failure to file the grievances with the Employer, deprives the GSB of jurisdiction to hear the grievances¹

21Unlike the facts before Vice Chair Petryshen, in the case before me, I regard the procedural failure to be a technical breach without import. Ms. Finnan had recently returned from LTD, was surplused by MTO and redeployed to another ministry. She had also grieved her surplus and redeployment. The issue that was the subject of the instant grievance arose in the context of her redeployment and she brought it to the attention of the HR manager with whom she had been dealing in that process. Although technically not in strict compliance with the grievance procedure set out in Article 22, dismissing it on this basis does not serve sound labour relations interests. Rather, in my view, it is more appropriate to address the issue on the merits.

22It was Ms. Finnan’s evidence that she reviewed the contents of her Corporate Human Resources File in the presence of an HR Advisor and discovered an old IME in an unsealed envelope. The Employer confirmed that the Grievor reviewed the file with Ms. Moreland and that the IME should be kept in a sealed envelope. It was the Employer’s position, however, that they had kept the report confidential. The Employer did not allege that Ms. Finnan herself opened the envelope and could not explain how she would have discovered the contents of the envelope if it were sealed.

23On the limited evidence before me I conclude that the IME was in a separate envelope that was either unsealed or inadequately sealed. I accept, however, that the Employer had made reasonable efforts to comply with its policy as set out in the Health Information Policy. I would allow the grievance in part and direct the Employer to follow the Best Practices set out at paragraph 4.3 of the Health Information Manual: the report of the Grievor’s IME should be put in a sealed envelope; access to the report should be restricted through a designated custodian; and the person seeking access should be required to sign the envelope stating why and what they are accessing. In the circumstances, I do not think this is an appropriate case to award damages.

Footnotes

1. 1At paragraph 29.