GSB#2012-3224, 2012-3225, 2012-3226, 2012-3227, 2012-3228, 2012-3229, 2012-3230, 2012-3835

UNION#2012-0528-0021, 2012-0528-0023, 2012-0528-0024, 2012-0528-0025, 2012-0528-0026, 2012-0528-0027, 2012-0528-0028, 2012-0528-0022

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Labanowicz)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Michael Lynk

Vice-Chair

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors Counsel

FOR THE EMPLOYER

Felix Lau Ministry of Government Services Legal Services Branch Counsel

HEARING

May 22, December 16, 2013; April 16, June 25, 2014

Decision

I. Introduction

1The Ministry of Transportation has raised a preliminary objection respecting the scope of the arguments that the Union plans to make in support of the grievances that it filed on behalf of the Grievor, Ms. Wanda Labanowicz, on separate dates in September 2012. Specifically, the Ministry submits that one of the legs of the Union’s arguments in support of Ms. Labanowicz – that she had been given an undertaking or commitment by her work supervisors on two different occasions in 2010 and again in 2011 that she would be placed in an alternate position as an IO2 (Information Officer 2) – does not fall within the language of her grievances on any reasonable reading of those documents. Nor, it argues, was it raised by the Union during the grievance process. Accordingly, the Ministry maintains that this argument cannot now be advanced by the Union, and that I have no jurisdiction to adjudicate the issue. The Union opposes this objection, and has urged me to dismiss it.

II. Factual Background

2In September 2012, Ms. Labanowicz filed a number of grievances, alleging that the Employer had breached either or both of Articles 3 and 20 of the governing Collective Agreement by not offering her an appropriate redeployment position or, alternatively, an accommodation position, after she had been given a surplus notice in April 2012. The lead grievance was filed on 18 September, and the remaining grievances were filed on 27 September 2012.

3When these grievances were filed, Ms. Labanowicz was an employee in the combined I & IT cluster at the Ministries of Labour and Transportation in Toronto but, at the time of the filings, she was seconded to the Office of the Worker Advisor. (For the purposes of this proceeding, the Ministry of Transportation is deemed to be her direct employer.) She has been continuously employed in the Ontario Public Service (OPS) since April 1983. In 2012, her classification was as a Systems Officer 2 (SO2), and she was formally assigned to the Service Management Branch as an IT and ESD (Information Technology and Electronic Service Delivery) Specialist. Ms. Labanowicz subsequently withdrew several of her grievances, leaving a total of eight grievances in front of me.

4The trigger point for these grievances arose when Ms. Labanowicz received written notice from the Ministry, dated 27 March 2012, that her position was being declared surplus as of 13 April 2012, and would therefore be eliminated. The announced lay-off date was 13 October 2012. The Ministry’s letter provided her with three options: (i) Exit with Pay-In-Lieu of Notice; (ii) Redeployment; or (iii) Retirement. She had no desire to leave the OPS, and she was not eligible to take full advantage of the various retirement options, so she chose the redeployment offer. The March 2012 letter from the Ministry laid out some of the details of the redeployment option:

You may wish to review this option if you decide that you would prefer to remain employed with the OPS and be available for possible direct assignment to an appropriate vacant position of Voluntary Exit opportunity within your six-month notice period. You would also be eligible for the identification of a displacement opportunity if you are not assigned to a position within five (5) months of the effective date of your Notice of Lay-off.

5The lead grievance was filed on 18 September 2012, several weeks before Ms. Labanowicz’s scheduled lay-off. Because this interim decision revolves around the language employed in Ms. Labanowicz’s grievances, it is important to lay out the claim in this grievance:

I grieve that the employer has violated Article 20 of the Collective Agreement by failing to re-deploy me or offer me a displacement or a temporary or conditional assignment following my lay-off. There have been several temporary and permanent positions that I am qualified for since I received my lay-off notice.

In addition, the employer, in failing to find me an alternate job, has failed to accommodate my disability, contrary to Article 3 of the Collective Agreement. The employer is obligated to accommodate me to the point of undue hardship, which may include the bundling of job duties. The failure to take my disability into account when searching for redeployment opportunities amounts to discrimination. Because of my 29.5 years of seniority, the employer should be able to find a job that is both productive and accommodates my disability.

As remedies, Ms. Labanowicz had requested the following:

Recission [sic] of lay-off notice, re-instatement to position with the Office of the Worker Advisor, and re-imbursement for any loss of wages or benefits that may be incurred or else, I want to be re-deployed to a suitable position with full redress and appropriate accommodation for my disability.

6The remaining seven grievances, all dated 27 September 2012, each state that the Employer breached the Collective Agreement by failing to provide Ms. Labanowicz with an “appropriate displacement opportunity” into specific SO1 or SO2 positions that had become vacant within the OPS. The wording employed in these seven grievances is sparse, and the parties did not parse the terminology in these grievances during their arguments on this preliminary matter.

7Ms. Labanowicz had been involved in a serious bicycle accident in 2006, which has left her with some long-lasting injuries. The disabilities that arise from this accident are the basis for her accommodation claim in the lead grievance.

8A stage 2 grievance meeting for these grievances was held on 11 October 2012. An email, dated at 7:11 pm on 11 October 2012 (written after the end of the meeting), from Ms. Labanowicz to Ms. Teresa Caramanna, an official with the Ministry of Government Services, was introduced by consent at the hearing before me. In the email, Ms. Labanowicz wrote the following:

Further to my Stage Two Grievance today, I agreed to send you copies of the Information Officer 2 positions that I found online.

The positions are as follows:

• Events Coordinator, Ministry of Economic Development and Innovation, Toronto

• Communications and Issues Officer, Ministry of Citizenship and Immigration, Toronto

• Issues/Communications Officer, Ministry of Aboriginal Affairs, Toronto

9By letter dated 8 November 2012, Ms. Lisa Rawlings, an employee relations advisor with the Ministry of Government Services, denied Ms. Labanowicz’s grievances.

10The agreed-upon issues of contention between the parties were itemized on 22 May 2013, during the first day of hearings at the Grievance Settlement Board. They were: (i) Whether Ms. Labanowicz had been improperly denied matches that she had sought during the surplus/redeployment process?; (ii) How many matches can a grievor trigger during the surplus/redeployment process?; (iii) Whether the Ministry failed in its duty to accommodate Ms. Labanowicz’s disability during the matching process?; (iv) Whether the Employer failed to meet the threshold test of ‘job-readiness’ by improperly reviewing her employee portfolio vis-a-vis her job description; and (v) Should a violation or violations be found, what would be the appropriate remedies?

11During the first day of the hearings into the Labanowicz grievances, the parties made opening statements, the identification of the issues as per paragraph 10 were agreed upon, and the hearing was then adjourned. At this hearing, the Union was represented by a staff representative. Beginning with the second hearing day, on 16 December 2013, the Union was represented by Mr. Ed Holmes, external legal counsel. He raised the issue that Ms. Labanowicz’s supervisors had told her on two occasions, in 2010 and again in 2011, that she would be moved back to the Ministry of Labour (where she had worked between 1994 and 2007), and she would be classified as an IO2. The Ministry objected to the addition of this issue, and made a motion that this issue was beyond the scope of the grievances. The parties agreed that the next hearing dates would be devoted to arguing the substance of the Ministry’s preliminary objection. This preliminary issue was then argued before me on 16 April and 22 June 2014.

III. Arguments

The Ministry

12Mr. Lau, counsel for the Ministry, objected to the Union’s reliance on the “supervisors’ commitments” issue. He maintained that the matter was not covered by the wording of Ms. Labanowicz’s grievances, nor had it been raised during the grievance procedure or at the first day of proceedings before the Board on 22 May 2013 when the issues in dispute were identified. Accordingly, Ministry counsel submitted that this Board should direct the Union that it cannot lead evidence or make arguments on this matter.

13In essence, the Ministry has advanced three arguments in support of its objection. First, in terms of the applicable legal standard, it submits that, while legal decision-makers have been directed by the courts to interpret the wording of grievances in a flexible and non-technical fashion, the law nevertheless has defined what can be an impermissible enlargement of a grievance’s scope. In particular, the party initiating the grievance cannot substitute and advance a new grievance in the guise of language that was intended to articulate a specific or more discrete workplace complaint. In support, the Ministry relied upon the following authorities: OPSEU (Jones et al) and Ministry of Labour, GSB No. 2006-1204, 13 April 2010 (Abramsky); OPSEU (Marinelli) and Ministry of Natural Resources, GSB No. 1989-1978, 11 October 1990 (Kirkwood); OPSEU (Blaine Warden) and Ministry of Correctional Services, GSB No. 1152/87, 17 May 1988 (Dissanayake); Re Greater Sudbury Hydro Plus Inc. and C.U.P.E., Local 4705 (Armstrong) (2003), 121 L.A.C. (4th) 193 (Dissanayake); and Re Cold Springs Farms Ltd. and Cold Springs Farms Employees’ Association, Local 100 (2000), 2000 CanLII 50240 (ON LA), 88 L.A.C. (4th) 213 (Goodfellow)

14Second, the Ministry argues that the “supervisors’ commitment” issue cannot be grounded in the language of the 2012 Labanowicz grievances and, in particular, in the 18 September grievance, quoted above in paragraph 5. The 18 September grievance provided, in some detail, the specifics of Ms. Labanowicz’s complaints. The focus of this grievance goes to the Ministry’s alleged failure to properly redeploy Ms. Labanowicz or, alternatively, to accommodate her in the time period that was bracketed between April and September of 2012. According to the Ministry, the grievance’s claim is clear: ‘Locate an alternative job for me, either through redeployment or accommodation’. The Union does not make a claim, even implicitly, for the IO2 position that it is arguing was promised by Ms. Labanowicz’s supervisors in 2010 and 2011. Thus, the issue of the IO2 position arose separate, apart and before the circumstances of the redeployment and accommodation claims, and cannot now be folded into the 18 September grievance, even on the most permissive reading of its wording.

15And third, the Ministry submits that the five issues of contention that were itemized and agreed-upon by the parties on the first day of hearings on 22 May 2013 (as stated in paragraph 9 above) do not make any mention, explicitly or implicitly, of the purported supervisors’ commitment concerning the IO2 position. Further, the 11 October 2012 email written by Ms. Labanowicz to a Ministry of Government Services officer immediately after the stage 2 grievance meeting (as per paragraph 7 above) – where Ms. Labanowicz references some IO2 positions that she had found online – supports the view that any mention of the IO2 positions at the stage 2 meeting was in the context of her current matching search as part of the redeployment process, and was not tied to any purported commitment or representation made by her supervisors in the time period well before the 2012 layoff and redeployment process.

The Union

16Mr. Holmes, counsel for the Union, argued that the lead grievance, dated 18 September 2012, was broadly drafted and can encompass the purported commitment by Ms. Labanowicz’s supervisors to take steps to place her into an IO2 position in the period before her 2012 layoff and the subsequent redeployment efforts. His first argument centred on the applicable law. Mr. Holmes emphasized that the guiding principle in labour law – derived from the seminal 1975 judgement by Ontario Court of Appeal in Blouin Drywall – is that language and terminology in workplace documents should be applied in a generous and liberal fashion, so that the substantive differences between the parties can be addressed and resolved, rather than focusing on the insubstantial, the technical and the formal. Applying this foundational concept of labour law in the present circumstances would lead to the inevitable finding that this “supervisors’ commitment” fits within the scope of the Labanowicz grievance. The following caselaw was relied upon by the Union: Labourers’ International Union of North America v. Ontario (Metro Toronto Convention Centre Corporation) (Coutinho), [2012] O.G.S.B.A. No. 49, 29 March 2012 (Nairn); OPSEU v. Ontario (Ministry of Natural Resources) (Karas), [2006] O.G.S.B.A. No. 139, 7 July 2006 (Mikus); Globeground North America Inc. v. International Assn. of Machinists and Aerospace Workers, District 140 (2004), 2004 CanLII 94750 (CA LA), 135 L.A.C. (4th) 155 (Ready); Bell Canada v. C.E.P. (Hopkins), [2003] C.L.A.D. No. 52 (McLaren); Parry Sound (District) Social Services Administration Board v. OPSEU, Local 324, 2003 SCC 42; OPSEU v. Ontario (Ministry of Revenue) (Thadani) (1686/87 et al) (19 September 1988) (Saltman); and Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975), 1975 CanLII 707 (ON CA), 8 O.R. (2nd) 103 (C.A.).

17Secondly, Union counsel submitted the essential thrust of Ms. Labanowicz’s grievances is that she should not lose her employment with the OPS, as per Articles 3 and 20 of the Collective Agreement, and that the Ministry should honour its legal commitments to her. This is underlined by the broadly-written remedy requested by the 18 September 2012 grievance, which basically requests: ‘restore my employment and put me back into the position that I was in prior to this breach’. This wording is liberally drafted, and encompasses any legal path back to the work security that she enjoyed before the layoff notice. Consequently, seen through this perspective, the commitments made to her by her supervisors in 2010 and 2011, which she properly assumed were still ripening and progressing at the time of the notice of layoff and the failure of the subsequent redeployment search, clearly fall within the scope of the grievances. Consequently, Mr. Holmes requested that the Ministry’s objection ought to be dismissed and that the Board should proceed to hear evidence on the commitments made to Ms. Labanowicz in 2010 and 2011 about the IO2 position.

IV. The Law

18The legal issue in dispute between the parties in this interim decision goes to whether or not the Union’s stated intent to lead evidence on the purported commitments made by Ms. Labanowicz’s supervisors in 2010 and 2011 pertaining to an employment re-assignment is an improper expansion of the September 2012 grievances.

19The governing legal principles to determine whether I have the jurisdiction to adjudicate this request have been widely canvassed in the caselaw. The overriding policy dictum is well-accepted: workplace grievances are to be liberally construed, and a lack of precision should not be punished. The point is to ensure that the real underlying complaint of the grievor or the union is properly identified, and it can then be adjudicated with simplicity and speed. Substance is preferred over form, and merits over technicality. The wording of grievances should not be read in a sterile and legalistic fashion, such as to obscure the resolution of festering work differences, as this serves neither the problem-solving mission of labour relations nor the production goals of the workplace. The industrial relations community has regularly reminded legal decision-makers that the grievance process is not meant to be a judicial proceeding, its principal players are not lawyers and judges, and its documents are not drafted with the Rules of Civil Procedure in mind. Enabling the full breadth of the actual grievance to be mediated or adjudicated is entirely consistent with the underlying purpose of the grievance procedure, which is to provide an orderly, fair, predictable, final and binding resolution of workplace disputes: Parry Sound, supra; Globeground North America, supra; Re Electrohome Ltd. and I.B.E.W., Local 2345 (1984), 1984 CanLII 5204 (ON LA), 16 L.A.C. (3d) 78 (Raynor); and Blouin Drywall, supra.

20Notwithstanding this broad policy principle, even its most generous application has a natural boundary. While the workplace grievance process is designed to address actual and substantive workplace complaints in their many forms, it cannot accomplish this without providing and encouraging a sufficient degree of clarity through the language of the grievance as to identify the actual issue or issues in dispute. This clarity is the necessary pre-condition that enables the parties to understand what is being claimed and contested, which in turn allows them to develop their respective positions and ultimately to explore whether some common ground for a resolution can be found. A party is not permitted to substitute, or tack on, a substantively different grievance to the matter(s) in dispute identified in the original grievance. The grievance process is not so elastic so as to permit the joining of issues that are truly unconnected – measured by its connectedness in fact, in substance and in time – with the reasonably understood meaning and coverage of the drafted grievance language. As Arbitrator Burkett stated in Re Fanshawe College and OPSEU, Local 110 (2002), 2002 CanLII 79073 (ON LA), 113 L.A.C. (4th) 328, at 336:

The Union is not permitted at a later date, just prior to arbitration, to completely changes horses in midstream and raise issues not contemplated by the grievance which are not consistent with the language of the grievance, which cannot be reasonably be included in the grievance and with the language of the collective agreement and which are entirely separate and distinct from the subject of the original grievance.

21The accepted test when determining if a claim raised subsequent to the filing of the grievance can be adjudicated as part of the live grievance goes to whether it can be reasonably construed to be an inherent part of the grievance, or whether it is a truly different and distinct claim: OPSEU (Jones et al) and Ministry of Labour, supra. The test is objective.

22When faced with this issue, an arbitrator’s considerations would include some or all of the following: (i) a review of the language of the grievance, (ii) a review of the language of the collective agreement; (iii) a consideration of any other admissible evidence that would cast light on the parties’ understanding of the issues raised by the grievance, such as the scope of the discussions and exchanges during the grievance process; (iv) a review of the remedy sought; (v) an assessment of the time frame involved; and (vi) the degree of prejudice, if any, suffered by the employer. One useful indicator is to ask whether the other party reasonably should have understood upon reading the grievance and engaging in the grievance process that the new claim in question was organically part of the original grievance: Re Greater Sudbury Hydro Plus, supra.

V. Decisions and Reasons

23I am satisfied on the evidence before me that the new claim advanced by the Union at the arbitration hearing is fundamentally different from the grievances filed on behalf of Ms. Labanowicz in September 2012. Although I have read the Labanowicz grievances in the requisite broad and liberal fashion mandated by the Blouin Drywall principle, I cannot, at day’s end, conclude that the new claim advanced by the Union fits within any reasonable reading of the language of the grievances, and particularly the 18 September grievance. Accordingly, the Ministry’s preliminary objection is upheld, and the Union is directed that the issue of the “supervisors’ commitments” from 2010 and 2011 cannot be litigated as part of Ms. Labanowicz’s present claim. I have come to this conclusion for the following reasons.

24The focus of Ms. Labanowicz’s 18 September grievance is directed to the purported failure by the Employer to locate a position for her as part of the redeployment process that was triggered by the layoff notice issued in March 2012. Nothing in the language of the grievance can be reasonably extended to include any alleged job-assignment commitments that arose before this period. Recall the claim of the grievance: It states that the Employer breached Article 20 of the Collective Agreement because it did not “redeploy me or to offer me a displacement or a temporary or conditional assignment following my lay-off. There have been several temporary and permanent positions that I am qualified for since I received my layoff notice.” [Emphasis added]. Similarly, the thrust of the seven grievances filed on 27 September went to specific “appropriate displacement” opportunities that arose during the required displacement search following the March 2012 layoff notice. The evidence that the Union wishes to lead about the supervisors’ commitments purportedly made in 2010 and 2011 clearly belongs to a separate and distinct time period that arose before the period of time specifically referred to in the grievances.

25I have carefully considered the Union’s argument that the underlying thrust of the grievances goes to Ms. Labanowicz’s quest for job security and her desire to maintain her employment within the OPS. Seen in this light, it maintains, the evidence that it wishes to lead on the purported commitments made by Ms. Labanowicz’s supervisors in 2010 and 2011 are sufficiently connected in purpose and remedial outcome to the September 2012 grievances such that it can be safely folded into these grievances, and litigated in these hearings, without doing any harm to the prevailing industrial relations policy on the appropriate degree of connectedness between grievances and subsequent claims. Indeed, argued the Union, allowing this evidence would honour the Blouin Drywall principle that grievances should be read expansively and broadly so as to allow the workplace problems at the root of the complaint to be directly addressed through the arbitration process.

26This argument has an initial appeal, but the facts of this case ultimately point us to a different conclusion than the Union has urged. Whether measured by the language, the substance or the time frame of the Labanowicz grievances, they are focused on her claims as they arose in the aftermath of the layoff notice, and the subsequent displacement process. Her complaint goes to the adequacy of the Employer’s search for an alternative position for her as measured by her bargained rights under Articles 3 and 20 of the Collective Agreement. It is certainly true that the 2012 displacement search process for a new position for Ms. Labanowicz, and the purported commitments made by Ms. Labanowicz’s supervisors to her in 2010 and 2011, can both fit under a broad rubric of job security. However, the September 2012 grievances are directed at the specific period of time after March 2012, and exclude, by their express language, any coverage of job security related issues that may have arisen beforehand.

27This reading of the scope of the September 2012 grievances is reinforced by two additional facts from the evidence. First, the available evidence regarding the Stage 2 grievance meeting on 11 October 2012 suggests that the efforts of the parties were focused on potential displacement positions for Ms. Labanowicz. There is no counter evidence before me from that grievance meeting to suggest that the Union had alerted the Ministry to the fact that it was raising the purported commitments from 2010 and 2011 as part of the framework of the grievances. And second, the parties agreed, on the first day of hearings on 22 May 2013, to list the matters that were in contention. Nothing in the agreed-upon list, even on the most liberal of readings, covers the purported commitments made by the supervisors in 2010 and 2011 to Ms. Labanowicz that the Union now wishes to include.

VI. Conclusion

28For the reasons stated, I have concluded that the Ministry’s objection to the Union’s plan to introduce evidence of purported job re-assignment commitments made to Ms. Labanowicz by her supervisors in 2010 and 2011 within the scope of the grievances before me is well founded. There is insufficient connectedness between the claims made in the September 2012 grievances and the purported commitments from 2010 and 2011 to permit the evidence from this earlier period to be litigated as part of the present grievances. Accordingly, I direct that this evidence cannot be led by the Union in these hearings before me.