GSB#2014-0572
UNION#2014-0586-0112
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (St. Hilaire)
Union
- and -
The Crown in Right of Ontario (Ministry of Community and Social Services)
Employer
BEFORE
Nimal Dissanayake
Vice-Chair
FOR THE UNION
Seung Chi Ontario Public Service Employees Union Grievance Officer
FOR THE EMPLOYER
Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel
HEARING
March 29, May 3, 2016
Decision
1A hearing was convened for arbitration of a grievance in Board file No: 2014- 0572. That file relates to a grievance dated March 18, 2014 filed by Ms. Marva St. Hilaire (“grievor”), who was employed as a Program Support Clerk in the Ontario Disability Support Program. That grievance (“the letter of counsel grievance”) is as follows:
STATEMENT OF GRIEVANCE
I grieve specifically but not limited to Article 2, Article 3, Article 21 (Discipline), and any other related Articles, Acts or Employer policies. I was provided with a Letter of Counsel on March 3, 2014
SETTLEMENT DESIRED
That I be made whole. That I be properly accommodated in the workplace. That the Letter of Counsel be removed from my Manager’s file. Anything else deemed fair by an arbitrator at the GSB.
2At the commencement of the hearing the parties put before the Board a disagreement between them about the scope of the inquiry the Board should undertake. The union was seeking to litigate a second grievance dated March 03, 2014, filed by the grievor, in addition to the letter of counsel grievance. This second grievance (“the accommodation grievance”) is as follows:
STATEMENT OF GRIEVANCE
I grieve specifically but not limited to Article 2, Article 3, Article 9 (Health and Safety) the OHRC and any other related Articles, Employer Policies, Acts or Legislation. I am also not being properly accommodated in the workplace as per the OPS Employment Accommodation Policy.
SETTLEMENT DESIRED
That I be made whole. That I be properly accommodated in the workplace. Anything else deemed fair by an arbitrator at the GSB.
3Employer counsel took the position that the accommodation grievance was settled between the parties, had not even been referred to arbitration, and was therefore, not arbitrable.
4With respect to the letter of counsel grievance, the employer took the position that it was only about a non-disciplinary letter of counsel and as such was not arbitrable. Counsel objected to paragraphs 33 and 34 of the union’s particulars as an attempt to improperly expand the scope of the letter of counsel grievance. Those particulars read:
It is the Grievor’s position that the Employer failed to provide reasonable accommodation when she returned to work on a full-time basis.
It is also the Grievor’s position that she was subject to harassment because of her disabilities.
5The letter of counsel is as follows:
RE: Letter of Counsel
This letter is a written follow-up to the allegation meeting on February 27, 2014 which you declined to attend.
The meeting was to discuss the following issues:
. Allegations about your conduct towards co-workers
Colleagues have complained that you conduct yourself in an unprofessional manner in the workplace which makes them uncomfortable. Staff report that you ignore them when they ask you questions, you respond rudely or with an angry tone. Please be advised that this is not acceptable conduct in the workplace and must be corrected.
This letter is not disciplinary in nature and will not be placed on your corporate personnel file. It is intended to be a letter of counsel to clarify expectations and to inform you that any future incidents of this nature may result in disciplinary action.
Should you have any questions or concerns, I would be happy to discuss them with you.
6The dispute about the scope of this proceeding was argued on the basis of agreed facts and documentary evidence. This evidence is that a stage 2 grievance meeting was held on April 15, 2014 with respect to both grievances. Hand written notes taken during that meeting by a union representative and an employer representative respectively were filed in evidence. The two sets of notes generally follow the same sequence of the dialogue that took place and there are no substantial inconsistencies between them. They establish clearly that both grievances were discussed at the stage 2 meeting. The evidence is that in relation to the accommodation grievance, the parties agreed to meet again on May 06, 2014, and the union agreed to an extension of time for the employer to reply to the grievance.
7The employer denied the letter of counsel grievance by letter dated April 23, 2014 and it was subsequently referred to arbitration.
8The evidence establishes that due to the grievor’s illness, the meeting scheduled with respect to the accommodation grievance for May 6 was postponed. The parties subsequently met on May 16, 2014 and agreement was reached on an accommodation plan for the grievor. It was signed off by the employer as well as the grievor.
9On May 23, 2014, the employer wrote to the union via e-mail under the subject “Marva-Grievance dated March 3, 2013-Number 4, 25041”. It reads:
This refers to the stage 2 (formal) meeting and subsequent discussions. We have since finalized the accommodation plan for Marva.
This is to confirm that the union is in agreement that this grievance is withdrawn.
Thank you for your cooperation in this matter.
10The union concedes that it did not respond to that e-mail. Nor did it in any manner indicate that it did not agree that the accommodation grievance was withdrawn. It also agrees that the grievance has not been referred to the Board or arbitration.
11Employer counsel submits in light of the foregoing factual context that the accommodation grievance had been settled by the parties, and that the union ought not be allowed to pursue it. He also pointed out that this grievance had not even been referred to arbitration
12With respect to the only grievance that has been referred to arbitration, namely the letter of counsel grievance, counsel submits that it is inarbitrable because the letter in question is clearly a non-disciplinary letter of counsel. He submitted that the union should not be permitted to circumvent that result by raising in its particulars, allegations unrelated to the letter of counsel, which did not form part of the grievance filed.
13With respect to the accommodation grievance, the union agreed that by not objecting to the employer’s e-mail dated May 23, 2014, the union confirmed the withdrawal. However, the union submitted that an employer has substantive obligations as well as procedural obligations in accommodating an employee. Since the employer agreed to put in place an accommodation plan satisfactory to the grievor, the union withdrew its allegation relating to the employer’s substantive obligations. However, there was no intention to withdraw the allegations relating to the employer’s procedural duties associated with accommodation, namely to properly investigate the grievor’s accommodation needs and accommodate the grievor in a timely fashion, instead of unreasonably delaying the process. Nor did the union agree to give up the grievor’s claim for damages flowing from the employer’s procedural defects and delay. The union further pointed out that the accommodation grievance refers to article 2 (management rights). It relates to a claim by the grievor that a request by her for approval of a day of special/compassionate leave was denied by the employer by improperly exercising its management rights. It was submitted that this aspect of the grievance was also not withdrawn.
14With respect to the letter of counsel grievance, the union agrees that the letter itself was non-disciplinary and therefore inarbitrable. However, it is submitted that while the written grievance form does not detail the allegation of discrimination or harassment due to her disability, it does refer to article 3 which is about discrimination. I was referred to numerous authorities, including Re Labanowicz, 2012-3224 etc. (Lynk), where the Board sets out the factors it will consider when dealing with a motion claiming improper expansion of a grievance. At para. 22 the Board states as follows:
22 When 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.
Reliance was placed by the union on factor (iii) set out in that passage.
15Reference was also made to Re Rafol 2009-1115 (Dissanayake), where at para.15 the Board wrote:
In 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.
16Reliance was placed also on the following excerpt from the decision in Re Artt, 2011-0950 (Dissanayake) at para. 10:
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.
17Based on the foregoing, it was submitted that during the stage 2 meeting the employer was put on notice that the letter of counsel grievance included allegations set out in the particulars objected to by the employer.
DECISION
18The Accommodation Grievance
Based on the evidence, the Board has no hesitation upholding the employer’s position that this grievance is inarbitrable. Leaving aside the legal issue arising from the fact that this grievance was never referred to arbitration, the evidence is that following discussions and the signing off on an accommodation plan for the grievor, the employer confirmed in writing that the union withdrew this grievance. The subject of the e-mail was set out as the grievor’s “grievance dated March 3, 2014”. If the union was of the view that only a part of the grievance was withdrawn, and that other aspects of it remain alive, it is reasonable to expect that the union would have immediately indicated that to the employer. Its silence is strong evidence that it was in agreement that the grievance was withdrawn without qualification. The fact that the union referred the other grievance dealt with at the stage 2 meeting to arbitration, but not the accommodation grievance, further buttresses this conclusion. Therefore, the Board concludes that the accommodation grievance was settled by the parties, and therefore is inarbitrable.
19The Letter of Counsel Grievance
The Board notes that the letter of counsel (supra para. 5) was issued to the grievor for alleged unacceptable and unprofessional conduct on her part towards her co-workers. The letter sets out complaints received from the grievor’s co-workers.
20In submitting that discrimination, failure to accommodate and harassment due to her disability was put on notice about those allegations at the stage 2 grievance meeting, the union relied on the meeting notes indicating that the grievor mentioned the following; that she sings Christian religious songs all the time while working; that co-workers ask her questions, but not being a manager she has no obligation to provide answers to those; that she is always in conflict with managers because they do not know about her accommodation; and that she was placed in the file room for four months, when the standard was two months. The union submits that those statements by the grievor at the stage 2 meeting should reasonably have put the employer on notice that she was alleging discrimination and harassment as part of her grievance.
21I agree with employer counsel that, when the grievor’s statements are seen in the context in which they were made, the conclusion suggested by the union is not reasonable. The evidence is that the employer scheduled an allegation meeting prior to issuing the letter of counsel, to obtain the grievor’s response to the complaints of her co-workers against her. However, the grievor chose not to attend that meeting. Therefore, the first opportunity the grievor had to respond to the complaints was during the stage 2 meeting. I am convinced that the statements by the grievor relied upon by the union were made as part of the grievor’s attempt to defend against her co-workers’ complaints. It is not reasonable to conclude that the employer was, or should have been, thereby made aware that the grievor was alleging, as part of her letter of counsel grievance, that the employer was in contravention of article 3 by failing to accommodate her or by subjecting her to harassment due to her disability. Rather, the discussion reflected in the notes is simply indicative of the grievor’s argument at the stage 2 meeting that she should not have been issued the letter of counsel, because it was the fault of the managers and her co-workers that resulted in conflict between herself and the co-workers, and that she was not to be blamed.
22As union counsel pointed out the letter of counsel grievance does refer to article 3 and accommodation. However, its focus is clearly on the letter of counsel. It refers to discipline and seeks as a remedy the removal of the letter of counsel. Particularly considering that the grievor had filed an accommodation grievance which was also being dealt with at the same stage 2 meeting, the employer could not have reasonably understood that the grievor was grieving her accommodation in both grievances. In this regard, it is to be noted that the only factual assertion in the statement of grievance is to the effect, “I was provided with a letter of counsel on March 3, 2014”.
23It follows from the foregoing that the union’s particulars raising allegations of failure to accommodate and harassment due to disability as part of the letter of counsel grievance would constitute an improper expansion of that grievance. The union is not permitted to do so.
24Similarly, the citing of article 2 by itself, without a mention of article 25 or an allegation about denial of a special/compassionate day of leave in the statement of grievance, and without an assertion during the grievance procedure relating to that issue, simply cannot be expected to convey to the employer that such a claim was part of this grievance. The evidence does not indicate that such an allegation was grieved.
25To sum up, the accommodation grievance has been withdrawn and is not arbitrable. The letter of counsel grievance is inarbitrable because the letter is non-disciplinary. It is hereby dismissed for that reason.
26It follows that there is nothing left for determination before the Board in this proceeding. The Board file may therefore be closed.
Dated at Toronto, Ontario this 16th day of May 2016.