GSB#2011-0950

UNION#2011-0547-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Artt)

Union

• and -

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

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel

HEARING

August 25, September 12, November 24, 2014

Decision

1A grievance dated March 17, 2011 filed by Ms. Marie Artt, an employee of Thistletown Regional Centre, came before the Board for hearing. The statement of grievance on the grievance form reads “Pay and Benefits and all/any other related legislation. Management to be held responsible for overpayment. C/A s. 3.1”. The settlement desired is set out as “Overpayment to be eliminated. Any and all days to be returned to WIN. Any and all benefits, pension, to be fully reinstated”. This decision determines a motion by the employer that the Board declare that the union was attempting to improperly expand the scope of the grievance as filed and discussed during the grievance procedure.

2The Board notes that the employer reserved the right to make a further motion that the issue the union was attempting to litigate was in any event settled by minutes of settlement. Second, the employer resisted production of a letter sent by a manager in July 2010 requiring the grievor to undergo an independent medical examination prior to returning to work. The objection was twofold. First, that the letter was arguably relevant only if the instant motion is denied and therefore was premature at this stage. Second, that by terms of minutes of settlement the letter in question was removed from the grievor’s personnel file and therefore may no longer be relied on by the union. The employer requested that the Board’s oral ruling following submissions by the parties ordering the production of the letter be recorded in writing, and it is so recorded herein. Finally, it was agreed that the evidence tendered in relation to the instant motion may be relied upon in future hearings relating to this grievance on condition that witnesses may be recalled to tender additional evidence.

3The factual background to the motion is as follows. The grievor went on sick leave on March 9, 2010. Until July 2010 she was able to top up the sick pay with available credits and therefore received full pay. However, starting in July she had no credits available, and according to the employer, should have received only 75% of her regular wage as sick pay. However, she continued to receive full pay. The employer also concluded that in September the grievor ran out of sick pay and was therefore not entitled to any payment, in the absence of approval of long-term disability or employment insurance benefits. Nevertheless, she continued to receive full pay. Commencing December 20, 2010 she returned to work on a gradual and part time basis. The employer claims that she still continued to receive full pay, when she should have been paid only for actual hours worked. The employer recognized that the overpayments occurred as a result of inaccurate recording of the grievor’s status on WIN on the part of management. In January, 2011 the employer calculated that from July until she reached full time hours following her return to work in December, the grievor had been overpaid an amount of $23,873.02 and sought to recoup that sum by deducting two days gross pay ($555.93) from each bi-weekly pay cheque. The grievor took the position that deduction of that magnitude would cause her and her family financial hardship, and that the stress would impact on her health. She requested that the deduction be limited to $ 100.00 per pay cheque. Following further discussion, the deduction was fixed at $ 400.00 per pay cheque.

4The employer takes the position that the grievance as filed and discussed during the grievance procedure was only about the employer’s right to recoup the overpayment amount. It is argued that at arbitration the union was raising issues not previously raised, including that the grievor was entitled to full pay during the whole period and that there was no overpayment at all. Thus it is argued that this is an attempt to improperly expand the grievance at arbitration.

5Employer counsel referred to the statement of particulars filed by the union which included allegations of breach of privacy, failure to return the grievor to work and failure to communicate. Reference was made to the following redress sought in the particulars:

The Union seeks full reimbursement to the Grievor of the monies taken by the Employer from her salary in the amount of $ 23,807.02 plus interest. The Union also seeks full restoration of the Grievor’s vacation entitlements and that she be made whole in respect of CPP and the OPS pension plan. It also seeks damages for the pain, suffering and humiliation in the amount of $ 25,000 and punitive damages of 25,000.

The employer takes the position that the only position asserted in the written grievance form and during the grievance procedure was to the effect that the employer was not entitled to recoup the amount because the overpayment was not caused by the grievor, but was the result of errors on the part of management. The grievor asserted that given the hardship that would be caused to her, the employer should hold those who caused the overpayment responsible for it. The employer urged the Board to limit the scope of the grievance to that issue.

6The union concedes that the written grievance does not explicitly allege that there was no overpayment. It is, however, submitted that the issue is inherent in the wording “management be held accountable for overpayment” and the remedial request. Counsel urged the Board to interpret the grievance liberally in recognition of the fact that grievances are written, and presented at grievance meetings, by individuals not professionally trained. He submitted that the position that the grievor was entitled to full pay was inferentially raised at the stage two meeting but it “sled past” because the employer’s sole focus was about recouping the money. Counsel urged that the Board take an approach which allows the resolution of all disputes between the parties, rather than take a rigid and technical approach in interpreting the grievance.

7The parties referred the Board to the following authorities:

Blouin Drywall Contractors Ltd. v. U.B.C.J.A. Local 2486 (1975) D.L.R. (3d) 199; Electrohome Ltd. and I.B.E.W. Local 2345 1984 CanLII 5204 (ON LA), [1984], 16 L.A.C. (3d) 78 (Rayner); Cold Springs Farms Ltd. and Cold Spring Farms Employees’ Ass’n, Local 100 2000 CanLII 50240 (ON LA), [2000], 88 L.A.C. (4th) 213 (Goodfellow); Greater Sudbury Hydro Plus Inc. and C.U.P.E. Local 4705 [2003], 121 L.A.C. (4th) 193 (Dissanayake); Re Fanshawe College and O.P.S.E.U. 2002 CanLII 79073 (ON LA), [2002], 113 L.A.C. (4th) 328 (Burkett); OPSEU (Marinelli) and The Crown in Right of Ontario (Ministry of Natural Resources), GSB No. 1978/89 (Kirkwood); OPSEU (Houghton) and The Crown in Right of Ontario (Ministry of Correctional Services), GSB No. 0771/88 (Knopf); Canadian Blood Services v. Ontario Public Service Employees’ Union, Local 5103 2002 CanLII 79130 (ON LA), [2002], 108 L.A.C. (4th) 385 (Briggs); OPSEU (Krajnovic) and The Crown in Right of Ontario(Ministry of Natural Resources) GSB No. 2049/90 (Low); OPSEU (Rafol) and The Crown in Right of Ontario (Ministry of Children and Youth Services), GSB No. 2009-1115, (Dissanayake); OPSEU (Karas) and The Crown in Right of Ontario (Ministry of Natural Resources), GSB No. 2003-0944 (Mikus); and OPSEU (Labanowicz) and The Crown in Right of Ontario (Ministry of Transportation) GSB No. 2012-3224 etc) (Lynk).

8The judgement of the Ontario Court of Appeal in Re Blouin Drywall Contractors Ltd. and Carpenters Local 2486 (1975), 1975 CanLII 707 (ON CA), 57 D.L.R. (3d) 199 is often cited as the authority setting out the appropriate approach in this regard. 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 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…”.

9Arbitrators have interpreted and applied the foregoing principle, particularly the meaning of “liberal reading” of a grievance. In Re Greater Sudbury Hydro Plus Inc. (supra), like here, the employer took the position that the union was seeking to litigate an issue which was completely different from the issue raised in the grievance. At p. 6-7, the Board wrote:

14 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. In Re Liquid Carbonic Inc. (1992), 25 L.A.C. (4th) 133 (Stanley), the arbitrator wrote at p. 147:

The whole process of grievance arbitration, and grievance procedure, is designed to permit the parties at the earlier stages to resolve the dispute between themselves. Hence, collective agreements invariably contain grievance procedure provisions so that grievances are funneled to an arbitration board only after the parties have had a chance to resolve the matter. It is our view that the comments of professor Laskin and the decision in the Re Blouin Drywall case attempt to accommodate both values. 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 as 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 a 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 their 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.

15 The issue in this case then becomes, was the allegation that the grievor was demoted in contravention of article 3.06 inherent even on a liberal reading of the grievance, or is it a new issue not inherent in the grievance filed.

16 The union focuses on the remedy and submits that throughout, the union’s concern has been the personal redress of the grievor for the loss of her collection officer position as a result of the contract out. The union’s focus was always on the proper treatment of the grievor following the contract out. At arbitration the union is not attempting to “undo” the contract out. It is simply attempting to ensure that the grievor is treated in accordance with the collective agreement following the contract out. He points out that the article governing the grievance procedure (art:6), while requiring that a grievance be in written form, has no requirement that a grievance explicitly set out the article alleged to have been violated. Nor does it require that the exact remedy sought be set out.

17 I have concluded that the employer’s objection must be upheld. The problem here is not the union’s failure to specify an article number or an exact remedy. It is about its failure to raise the alleged violation until the arbitration stage. In the grievance the union clearly complained that the grievor had been denied her bumping rights under the collective agreement. There was no mention of a “demotion”. The union submits that by complaining about the denial of bumping rights, it put the employer on notice that the union was objecting in a general way to the way the grievor was treated following the contract out. That, in my view, is not what the courts meant by “liberal reading” of a grievance. 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. I am unable to reach that conclusion in this case. The grievance was very specific about the right violated. It was about bumping rights. It was open to the union to clarify or amend the grievance during the grievance procedure to include additional claims. There is no suggestion that this was done.

10The Board recognizes that unlike in Re Greater Sudbury Hydro Plus Inc. (supra), the instant grievance is not specific. It is very general and vague, alleging that “management be held responsible for the overpayment”. On a plain reading, these words convey an acknowledgement that an overpayment had occurred, and asserts that management, and not the grievor, should bear the consequences of the overpayment. Moreover, during the grievance procedure the union and the grievor had the opportunity to, and did clarify, what the grievance was about. If at that stage the union had raised the position, even in the alternative, that the grievor was entitled to all of the pay received and that there had been no overpayment to be recouped, that issue would have been properly before the Board at arbitration, despite any defect or vagueness in the wording in the grievance form itself. Therefore, the evidence as to what transpired during the grievance procedure becomes relevant.

11The only viva voce evidence was tendered by the employer through Mr. Wayne Clark, Strategic HR Business Advisor. He attended the stage two grievance meeting held on May 20, 2011. Hand-written notes he made at that meeting was filed in evidence. The gist of his evidence was to the effect that at the stage two meeting the grievor, who had union representation took the position that since the overpayment was as a result of managers improperly recording the status of her absence on WIN, the employer should look to those managers, and not to her, for recoupment of the overpayment amount. There was disagreement at the meeting whether the grievor was or should have been aware that she was receiving pay she was not entitled to. The union argued that the overpayment would have been avoided if the employer had made timely communication with the grievor as it should have. There was also reference to the financial hardship and stress that would result if the grievor is required to repay the money, and that this would be discriminatory and inconsistent with the mission/values in the OPS. Then there was negotiation as to what would be a reasonable rate of deduction. Asked whether the grievor ever stated that the employer had failed to return her to work in a timely manner upon receipt of medical information, and that she was entitled to receive full pay as she did, Mr. Clark replied that he did not recall that being raised and that his notes also do not reflect such assertions.

12In cross-examination, Mr. Clark agreed that at the stage two meeting the grievor asserted that at a return to work meeting held on November 23, 2010 Mr. Mike Mously, Director of Thistletown Regional Centre assured her, in response to a direct question she asked, that if she was returned to work on the basis of a gradually increasing work day under an accommodation plan, she would receive full wages and benefits. Mr. Clark also agreed that he had been aware that management had required that the grievor submit to an independent medical examination before being considered for return to work. Asked whether he recalled the grievor say at the stage two meeting to the effect “I don’t agree with the overpayment, but if I must repay, $ 100.00 a pay cheque is all I can pay”, Mr. Clark replied that he recalled, and his notes record, the grievor stating that she could not afford more than $ 100.00 a pay cheque, but she did not say she disagreed with the overpayment. Under persistent questioning that the grievor did make such an assertion, Mr. Clark disagreed and insisted that the grievor’s consistent position was that the overpayment should not be her responsibility.

13Also filed in evidence was a document titled “Employer’s Grievance Issue Summary Form”. Mr. Clark testified that it was his responsibility to prepare such a document any time a grievance is denied at stage two. It includes Part 2 entitled “stage two meeting”. One of the entries in Part 2 is as follows:

ISSUES RAISED IN MEETING (not included on grievance form)

. Grievor made claim that in a meeting with Administrator, Mike Mously on November 23, 2010 to discuss her return to work accommodation plan, she was told that if she returned on a graduated work plan that she would receive full wages and all benefits would be fully covered. Further stated that she was not advised at that time that she would have to repay any monies.

. Grievor stated that she was not aware that she was being overpaid and that in nine (9) months she never received a call from management. Stated that all of her time was approved by management.

. Grievor made claim that her treatment in this situation is not consistent with OPS vision, mission and values. Stated she was being discriminated against, she is a single parent and that OPS should get funds from those who are responsible.

. Grievor at the stage 2 indicated that the amount owed was never formally put to her in writing.

. Stated that this situation was having an impact on her health and the health of her children and that she was being discriminated against.

. Grievor read from a document later provided to the Employer (enclosed).

. The Employer raised concern that she received the package for Long Term Income Protection and did not complete same. As such, by receiving this package the Grievor ought to have known that her Short Term Sickness Plan benefits must be near exhaustion.

14Mr. Clark’s testimony was unshaken that the issue raised during the stage two meeting was that the grievor should not be held responsible for repayment of the overpayment that resulted from erroneous recording of absences on the part of management, and that there was no suggestion that there had been no overpayment. While it was repeatedly put to Mr. Clark during cross-examination that the grievor stated that she “did not agree with the overpayment”, Mr. Clark disagreed. The grievor nor the union representative who were in attendance at the meeting testified to contradict Mr. Clark’s testimony. Moreover, Mr. Clark’s testimony is consistent with the contemporaneous notes he made at the meeting and the documentation the employer had prepared in accordance with usual practice where a grievance is denied at stage two. In the circumstance the Board is driven to the conclusion that the position the union now seeks to assert at arbitration, namely that the grievor was able to return to work and should have been returned to work at least by the end of September 2010, and that when the employer directed that the grievor could not return until an independent medical examination was completed the grievor was in effect placed on a leave with pay, was not part of the grievance as filed or as discussed during the grievance procedure. This is a new grievance the union seeks to pursue in addition to the one originally filed and discussed to the effect that the employer was not entitled to recoup the amount of the overpayment from the grievor. The parties have not had the benefit of dealing with this new issue during the grievance procedure and is not properly before me.

15However, I decline the employer’s request that certain portions of the union’s particulars which relate to the new issue be struck. I see merit in the Union’s position that those particulars may also be relevant in relation to the only issue properly before the Board, namely whether the employer is entitled to recoup the overpayment. The interest of both parties would be addressed by a declaration that the union is not entitled to assert any other allegation at arbitration. It is so declared. The employer’s motion succeeds. The Board remains seized with jurisdiction.