Ontario Public Service Employees Union (Rafol) v. The Crown in Right of Ontario (Ministry of Children and Youth Services), 2013 CanLII 18489

GSB#2009-1115

UNION#2009-0547-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Rafol)

Union

• and -

The Crown in Right of Ontario (Ministry of Children and Youth Services)

Employer

BEFORE

Nimal Dissanayake Vice-Chair

FOR THE UNION

Eric del Junco Counsel

FOR THE EMPLOYER

Felix Lau Ministry of Government Services Labour Practice Group Counsel

HEARING

March 11, 2013.

Decision

1When a grievance dated April 2, 2009 filed by the grievor Ms. Virginia Rafol came before the Board for arbitration, a dispute arose between the parties about the scope of the grievance. This decision determines that dispute.

2The facts material to the dispute were stipulated on agreement. On March 6, 2009, the grievor wrote to her employer “to apply for Special Leave with Pay provided under article 25.1 of the OPSEU Collective Agreement for a period of six months to begin June or July of this year”. The reason for the leave application was stated as, “I need to go home to the Philippines to look after my mother who is suffering from an advanced stage of Alzheimer’s disease”. The grievor’s letter went on to describe in detail the extent of her mother’s illness, why paid caregivers have not been able to care for her properly, and why it was necessary for her to return and personally care for her mother. The grievor also described the limited financial resources available to herself and other family members, and explained why she needs the period of leave requested to be with pay. By letter dated March 18, 2009, her request for leave was denied by the Regional Director.

3This resulted in the filing of the instant grievance dated April 2, 2009. The statement of grievance reads: “Art. 25.1 – I want to grieve the denial”. The settlement desired is set out as “To be allowed to go on this leave as per art. 25.1”.

4Article 25.1 reads:

25.1 Leave of absence with pay may be granted for special or compassionate purpose to an employee for a period of:

(a) not more than six (6) months with the approval of his or her Deputy Minister;

and

(b) over six (6) months upon the certificate of the Public Service Commission.

Following the filing of the grievance, the grievor requested a leave of absence without pay from September 15, 2009 to February 19, 2010. This unpaid leave was approved, and the grievor did go to the Philippines for that period of time.

5As a result of the grievor’s absence from Canada and illness upon her return, scheduled arbitration dates were adjourned several times. However, the parties did participate in a mediation session without success. The grievance was ultimately set down for hearing before the Board on March 11, 2013. Following the retention of the present union counsel, he wrote a letter dated February 28, 2013 to employer counsel. It included the following:

The union will argue that the employer’s denial of the grievor’s request for compassionate leave in 2009 which is the subject of this grievance amounted to constructive discrimination on the grounds of disability and/or family status, namely the disability of her mother, contrary to s. 2 and s. 25 of the Collective Agreement and s. 5 of the Code. The union will also argue that this denial constituted discrimination on the grounds of place of origin and ethnic origin insofar as within the grievor’s culture, it is a norm that children care for their aged and disabled parents.

The union reserves the right to rely on other provisions of the CA and Code which might be relevant. The union will argue, inter alia, that

1. The employer had a duty to accommodate the grievor’s needs arising from her mother’s disability to the point of undue hardship;

2. The employer failed in this duty by denying her request for paid leave to care for her disabled mother;

3. The onus is on the employer to prove that granting tis request would have caused it to suffer undue hardship;

4. In any event, the denial of this request was arbitrary and unreasonable and contrary to s. 25.1 of the Collective Agreement.

At the hearing, union counsel asserted that the union reserves the right to seek general damages for violations of the Human Rights Code.

6The employer accepts that the union’s allegation of violation of article 25.1 is properly before the Board. However, it contends that the allegation of discrimination on the various prohibited grounds is an improper attempt by the union to expand the scope of the grievance. Counsel submitted that the agreed facts lead to the unavoidable conclusion that discrimination on prohibited grounds was not a part of the grievance. Nor is discrimination inherent in the grievance as filed. He pointed out that the written grievance is specific that the allegation is about the denial of leave under article 25.1. The remedy sought is also consistent in that the grievor only requested that she be granted the leave under article 25.1. Discrimination was never raised or discussed during the grievance procedure or at mediation, despite the fact that the grievor had union representation. Employer counsel submits that on the eve of arbitration the union is attempting to turn the grievance, which hitherto had been treated by both parties as one about the exercise of the employer’s discretion in approving leaves under article 25.1, into one about human rights violations. He points out that the substance of the argument the union proposes to make, as set out in union counsel’s letter, is about human rights violations. Article 25.1 is mentioned at point four only as an afterthought. In other words, the union is attempting to present a completely different and new grievance.

7Counsel argued that the nature of the grievance filed is completely different from the one the union now seeks to pursue. The issues and the evidence in an article 25.1 grievance and a discrimination grievance are very different. In the former, the focus would be on the employer’s exercise of its discretion under article 25.1. In the latter, completely different considerations would come into play. Evidence on issues such as the extent of the illness of the grievor’s mother, the cultural practices about caring for elders in the Philippines and the availability of alternate arrangements to care for her would become relevant. Counsel also argued that in an article 25.1 grievance the legal onus would be on the union because it is claiming a financial entitlement. In a discrimination grievance there may be a shifting onus. Finally, counsel pointed out that the remedy sought in the article 25.1 grievance was simply that the leave be approved. In contrast, now the union is reserving the right to claim human rights damages. Citing authorities from this board as well as from arbitrators, counsel submitted that the Board should conclude that discrimination on prohibited grounds was, and is not, a part of the grievance before it, explicitly or inherently, and that its inclusion would constitute an improper expansion of the grievance before the Board.

8Union counsel acknowledged that discrimination was first raised as an issue on February 28, 2013, mere days before the scheduled arbitration. He pointed out that while the grievor did have the local union representation during the grievance procedure, it is unlikely that a local union representative would have the required knowledge and training to identify and articulate violations of human rights. He argued that in any event the true nature of the grievance must be gleaned from the underlying facts. The facts, he submitted, are detailed by the grievor in her request for leave. In it, the grievor puts the employer on notice that the request is based on her relationship with her mother. That should have alerted the employer about the need to deal with the request for leave with caution because it may potentially involve family status issues. The employer should have therefore given due consideration to whether the request could be approved short of undue hardship. The test, he submitted, must be objective. That is, would a prudent employer on a reasonable reading of the grievor’s request for leave recognize that it involves human rights issues. The answer, he submits, must be in the affirmative.

9Union counsel also argued that in determining the scope of the grievance the Board should give weight to the fact that while the employer made a general assertion that the raising of human rights issues for the first time in February 2013 in relation to a grievance filed in April 2009 is prejudicial to it, there was no specific prejudice claimed such as unavailability of witnesses or documentary evidence needed to defend against the grievance. In the absence of prejudice, the Board should favour hearing the real substance of the grievance. Counsel argued that the right the grievor is seeking to pursue flows from the Human Rights Code, which has quasi-constitutional status. The Board should not bar the pursuit of such an important right due to lack of specificity.

10The appropriate approach in these types of disputes is well established. In Re Greater Sudbury Hydro Plus Ins., (2003), 121 L.A.C. (4th) 193 (Dissanayake) at p. 198, I stated as follows:

Both parties referred me to the oft-quoted judgment of the Ontario Court of Appeal in Blouin Drywall Contractors Ltd. v. United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975), 1975 CanLII 707 (ON CA), 57 D.L.R. (3d) 199. At. P. 204 Mr. Justice Brooke wrote:

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 on the merits and as provided in the contract and so the dispute may be finally and fairly resolved with simplicity and dispatch.

He went on to state:

Certainly, the board is bound by the grievance before it but the grievance should be liberally construed so that the real complaint is dealt with and the appropriate remedy provided to give effect to the agreement provisions.

I find two countervailing principles in the foregoing statement by the Court of Appeal. The first is that, where on a liberal reading of the grievance an issue, although not articulated well, is inherent within it, an arbitrator ought to take jurisdiction over that issue, despite any flaws in form or articulation. However, there is also a countervailing principle to the effect that an arbitrator ought not, in the guise of “liberal reading”, permit a party to raise at arbitration an issue which was not in any manner, even inherently, joined in the grievance filed. To do that would be to defeat the very purpose of the grievance and arbitration procedure.

11In Re Electrohome Ltd., (1984), 1984 CanLII 5204 (ON LA), 16 L.A.C. (3d) 78 (Raynor) at p. 82 the principle was stated as follows:

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.

12I agree with union counsel that in deciding whether an issue was part of or inherent in the grievance, the test must be objective. The issue is not to be determined on the basis of the employer’s subjective interpretation. As stated in Re Greater Sudbury Hydro Plus Inc. (supra) at p. 199, for an arbitrator to include an issue on “a liberal reading”, he/she “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. (emphasis added).

13While arbitrators and this Board have endorsed and followed the approach espoused by the Ontario Court of Appeal in Re Blouin Drywall, (supra) that cases should be decided on the merits rather than on technicality or form, Boards have balanced the need for flexibility with the court’s caution that ‘the Board is bound by the grievance before it’. In doing so, this Board has particularly emphasized a policy consideration. Namely, the desirability and importance of the parties discussing and attempting to resolve issues in dispute during the grievance procedure before coming before it for arbitration. Thus in Re Warden, 1152/87 (Dissanayake) at p.4, the Board wrote:

…the wording of the grievance is not determinative. If the employer was made aware that the concern was with regard to the grievor’s health and safety the employer cannot be heard to complain about the wording of the grievance. However, a health and safety concern was not raised by the grievor until the arbitration hearing. The board is concerned that the grievor failed to raise what he now claims to be the central issue of his complaint at any time during the grievance procedure. The grievance procedure set out in the collective agreement is designed to encourage discussion relating to the real issues in dispute in the hope that the parties may be able to resolve them. The Board does not encourage parties to raise issues at arbitration, when such issues have not been raised in the grievance procedure.

14Similarly in Re Houghton, 0771/88 (Knopf) at pp. 4-5 the Board wrote:

It is the conclusion of the Board that the essence or the substance of the grievance that the Union wishes to pursue is a complaint dealing with health and safety … However, the wording of the grievance and the processing of the grievance at Stages 1 and 2 of the grievance process did not reveal this concern to management … It is the opinion of this panel that Steps 1 and 2 of the grievance process are extremely important for the proper resolution of complaints. This grievance, as processed, could not give effect to that mechanism of dispute resolution because the substance of the complaint was not revealed to the Employer at the crucial early stages… Because it was not raised initially, and because we have no jurisdiction to amend or alter the grievance, we must deal with the grievance as it was framed.

15In the present case, the written grievance is clear that the grievor’s allegation is about the denial of leave under article 25.1. The only remedy sought is the granting of the leave under that article. However, as the authorities have repeatedly stated, the written form of the grievance is not determinative of its scope. If the union had communicated to the employer in some manner that the grievance includes the allegations of discrimination on prohibited grounds, that would have enabled the parties to address that issue during the grievance procedure. Then an argument that “a liberal reading” and “a flexible approach” should lead the Board to allow the human rights issues to be pursued would have merit. However, in the instant case, the employer could not have reasonably understood from any of the information before it, that the union was raising any human rights claim. At the time of the grievor’s request for leave, there was no grievance filed or contemplated. In any event, from the fact that the grievor gave the need to care for her mother as the reason for the request for leave, the employer could not be reasonably expected to understand that any grievance about the denial of the leave, however framed, includes allegations of discrimination on a number of prohibited grounds. The grievance itself and the discussions during the grievance procedure and during mediation, was only about the employer’s exercise of its discretion under article 25.1. The allegations of discrimination on prohibited grounds are discreet issues, which could not be said to be encompassed in an allegation of violation of article 25.1.

16The union’s argument in essence is that the human rights claims should be included as part of the grievance because they are based on the same facts that are material to the article 25.1 dispute. Commonality of facts alone, however, is not a basis for determining the scope of a grievance. The Board has rejected such an approach. In Re Marinelli 1978/89 (Kirkwood), the grievance alleged that the employer was “violating the collective agreement by its negative treatment of me”. The settlement desired was, “That I be treated in the same manner as any other employee and be allowed to perform the full range of duties of my position”. Three working days prior to the scheduled arbitration, the union informed the employer that it would be asserting that the employer conduct constituted a disciplinary demotion without just cause. At arbitration the employer took the position that the union was attempting to alter the grievance from one alleging discrimination in assignment of duties to one of unjust demotion.

17One of the arguments advanced by the union counsel was as follows (pp. 3-4)

He argued however, that the ground of discipline was included in the original grievance and was not an enlargement of the grievance. He submitted that that the circumstances relied on are the same, and the remedy, to get back the grievor’s duties is substantially the same.

The union counsel argued that whether discipline can be raised is a procedural and not a substantive matter. He submitted that it is merely a difference in the characterization of the facts.

At p. 6, the Board rejected that argument, stating “The principle espoused in the Blouin decision has not been interpreted and applied so that any issue that may involve the same facts is to be heard by the board of arbitration formed to resolve the original issue.”

18In the present case, the human rights issues belatedly raised by the union are very discreet and different than the issue originally grieved and discussed between the parties. The remedy in the original grievance was the approval of a paid leave of absence. Pursuant to its human rights allegations, the remedy may involve human rights damages. The human rights issues were not subject to any discussion between the parties. They were raised for the first time just prior to the scheduled arbitration.

19In the circumstances, the Board concludes that the allegation of discrimination on prohibited grounds did not form part of and was not inherent in the grievance before the Board. The employer could not have reasonably expected that the grievance it was dealing with during the grievance procedure and even at mediation, included allegations of discrimination on the basis of prohibited grounds.

20Therefore, the employer’s objection is upheld. The union is not permitted to pursue those allegations as part of the instant grievance. The Board remains seized with jurisdiction to hear and determine the grievance on that basis.