GSB# 2014-0145; 2014-0176; 2014-3266; 2014-3734; 2014-4492
UNION# 2014-0586-0034; 2014-0586-0043; 2014-0310-0050; 2014-0308-0012; 2014-0426-0036
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Amos et al)
Union
- and -
The Crown in Right of Ontario (The Ministry of Children, Community and Social Services)
Employer
BEFORE
Ian Anderson Arbitrator
FOR THE UNION
David Wright Ryder Wright Blair & Holmes LLP Counsel
FOR THE EMPLOYER
Felix Lau Treasury Board Secretariat Legal Services Branch Counsel
TELECONFERENCE
September 24, 2018
Decision
1Pursuant to the Directions of the Board dated August 25, 2017, the Union provided particulars with respect to the five individual grievances it identified as wishing to advance to arbitration pursuant to paragraph 9(b) of the Memorandum of Settlement dated January 17, 2017 in the Martin et al matter (the “MOS”). The Employer filed a response seeking dismissal of each of the five individual grievances on a preliminary basis. This decision addresses this request.
2I note Article 22.16 applies to these matters. The decisions are without prejudice or precedent and reasons are to be brief.
Grievance of Jeffrey Amos (2014-0145)
3The Union stated the following with respect to Mr. Amos:
Mr. Amos has elected not to continue with his grievance and thus no particulars will be provided.
The Union accepts that his grievance will be deemed to be dismissed.
4Accordingly, Mr. Amos’ grievance is dismissed.
Grievances of Shantelle Marcoux (2014-0176) and Guy Paquin Belle-Isle (2014-4492)
5The Union’s particulars in relation to Ms. Marcoux and Mr. Paquin Belle-Isle commence as follows:
Ms. Marcoux and Mr. Paquin Belle-Isle are both employed as French Language Services (“FLS”) ODSP caseworkers (“CW’s”).
It is the position of the Union that FLS CW’s perform unique duties and face unique workload challenges in comparison to CLW’s who provide service in English, such that the issues raised in the grievances of Ms. Marcoux and Mr. Paquin Belle-Isle are not materially the same as the issues raised in the Union grievance and addressed in the Martin et al settlement.
As such, the Union submits that the grievances of Ms. Marcoux and Mr. Paquin Belle-Isle ought to be permitted to proceed to arbitration.
6The Union then provides details as to how the situation of FLS CWs differed from that of other CWs, including: there was no Program Support Clerk (“PSC”) for the FLS CWs, which increased their workload; there were only four FLS CWs at the office in question (47 Sheppard), with the result that an absence of one or more of them had a disproportionately greater impact on the others than would be the case for groups of other CWs, which were larger; and the FLS CWs were responsible for creating some of their own materials, a function not required of other CWs.
7Paragraph 9 of the MOS states:
The parties agree to the following process for addressing individual or group grievances from ODSP staff relating to breaches of Article 9, excessive workload and/or the implementation of SAMS, which have been submitted to the Employer as of the date of the Memorandum of Settlement:
(a) By no later than May 31, 2017, the Union will provide the Employer with a list of the grievances, if any, that it wishes to advance for arbitration. Any grievance not included in the list will be deemed to be withdrawn.
(b) Vice-Chair Ian Anderson will be seized with jurisdiction to deal with the grievances on the list, and may use such expedited procedures as he deems appropriate in the circumstances. If Vice-Chair Anderson determines an individual or group grievance raises materially the same issues as those raised by the Union grievance and addressed in this Memorandum of Settlement, then he will dismiss the grievance. The Union agrees that it bears the onus for establishing that an individual or group grievance is not materially the same.
(c) In making the determination on whether the individual or group grievance is materially the same, Vice-Chair Anderson may consider the particulars and grievance forms relating to the eight representative grievers.
(d) Any grievance found to be materially different by Vice-Chair Anderson will proceed to arbitration, on a without prejudice basis to the Employer's ability to raise such other applicable preliminary objections.
[Emphasis supplied.]
8One of the eight representative grievors relied upon by the Union in the proceedings which gave rise to the Memorandum of Settlement was a FLS CW at the 47 Sheppard Ave. office. The particulars filed in relation to that grievor described the impact of excessive workload and/or the implementation of SAMS on FLS CWs, and specifically alleged: there was no PSC for the FLS CWs, which exacerbated their workload issues; there were only four FLS CWs at the office, with the result that the absence of one of them for any reason meant the others had to cover that CW’s caseload; and the FLS CWs were responsible for creating their own letter templates, as none existed in French.
9In my view, the issues raised by the grievances of Ms. Marcoux and Mr. Paquin Belle-Isle are materially the same as those raised by the other FLS CW grievance. Accordingly, they are addressed by the MOS and the grievances of Ms. Marcoux and Mr. Paquin Belle-Isle must be and are hereby dismissed.
Grievance of Cynthia Hayes-Wright (2014-3734)
10The particulars filed on behalf of Ms. Hayes-Wright seek to distinguish her grievance from the matters settled by the MOS on two bases. The first is that in addition to being a CW herself, Ms. Hayes-Wright was actively involved in the issues which gave rise to the MOS both as a member of the MERC team and as Union Steward. As a result: “She routinely had other CWs at her desk crying and otherwise expressing the problems they were experiencing as a result of Modernization and the introduction of SAMS.” Further, Ms. Hayes-Wright was a liaison between the workers and management in her office with respect to the issues raised by SAMS. This increased her overall workload. The Union asserts these issues were not addressed by the MOS.
11I disagree. Assuming without deciding that stress or workload resulting from acting as a steward or liaison between workers and management could constitute a breach of the collective agreement, Ms. Hayes-Wright’s claim is entirely derivative from the issues addressed by the MOS. It presupposes there were excessive workloads as a result of SAMS and other actions of management which she was called upon to address. These are the very issues fully settled by the MOS.
12The second basis on which the Union seeks to distinguish Ms. Hayes-Wright grievance is that she retired prior to January 17, 2017, the date of signing of the MOS. The MOS provided certain benefits to those employed as of the date of signing and committed the Employer to certain prospective actions with respect to SAMS. Since Ms. Hayes-Wright had retired, she did not obtain any benefit from the MOS.
13I am not persuaded by this argument. The MOS settled all claims and grievances in relation to SAMS (with exceptions not relevant to Ms. Hayes-Wright grievance). It did not carve out the grievances of those who had retired. Accordingly, Ms. Hayes-Wright’s grievance must be and is hereby dismissed.
Grievance of Liliana Erazo (2014-3266)
14Mrs. Erazo is employed as a CW. The particulars filed in respect to her grievance raise three issues, which I find convenient to address in the following order.
15The first of the issues raised by Mrs. Erazo is the following:
During SAMS training, Mrs. Erazo had an incident with her manager where she was unaware her manager was trying to reach her by email, because she was at lunch and then barely made it on time for the SAMS training session, her manager got very upset and reacted in a way that made Mrs. Erazo feel intimidated and was told she may face disciplinary consequences. Mrs. Erazo then approached her Program Manager (her manager’s supervisor) seeking assistance, but her Program Manager simply told her that issues had to be worked out with her manager directly. Mrs. Erazo then had to request the intervention of the union representative to accompany her in all consequent meetings with her manager. Even though the issue was resolved amicably, it exacerbated Mrs. Erazo’s medical condition even further.
16In my view, even assuming the incident occurred as described, there is no breach of the collective agreement. One interaction of the sort described does not constitute bullying or harassment.
17The second issue is an allegation that Mrs. Erazo has a medical condition which has been exacerbated by the stress caused by the excessive workload pressures. Ultimately, this caused Mrs. Erazo to go off work in March, 2014. She has not returned to work since. While Mrs. Erazo’s reaction to the excessive workload pressures was unfortunately more severe than that of most CWs, subject to my comments below with respect to accommodation, this does not make her grievance materially different from those which were resolved by the MOS. The particulars filed by the Union in relation to the eight representative grievors are replete with references to workload pressures giving rise to stress on CWs. In some instances, that stress is alleged to have caused or exacerbated medical conditions. In one instance, the individual was off work for extended periods of time (up to three months), allegedly as a result. There is no material difference with respect to Mrs. Erazo’s allegations as to the workload pressures she experienced from those described for the representative grievors, even if the impact on her was more severe.
18More fundamentally, the Employer can have no liability for Mrs. Erazo’s medical condition unless it is legally responsible for the actions which in some sense caused it. Other than with respect to issues related to the duty to accommodate, the MOS releases the Employer from its legal responsibility for “health and safety issues arising from the alleged excessive workloads and/or the alleged detrimental impact from the implementation of ODSP Modernization (2010) and SAMS” in return for the benefits set out in the MOS. Thus, unless the duty to accommodate is engaged, the Employer has no further legal liability under the collective agreement for any exacerbation of Ms. Erazo’s medical condition by excessive workload pressures. (Mrs. Erazo may have entitlement to LTIP or WSIA benefits, but those are other matters entirely.)
19The third issue raised by Mrs. Erazo’s particulars is that of accommodation of her disability. The particulars in relation to Ms. Erazo are almost three pages in length. At the end, they contain the statement: “Mrs. Erazo did not receive proper accommodation from the Ministry with respect to her workload and this has resulted in her being unable to work at all.” The difficulty is that there are no particulars in support of this conclusion. On the contrary, to the extent the particulars specifically refer to medically supported accommodation requests by Ms. Erazo, they indicate the Employer complied with those requests.
20If the Union asserts there were specific requests by Ms. Erazo for accommodation of her disability with which the Employer failed to comply, it is directed to provide full further particulars by November 30, 2018. In the absence of such particulars, Ms. Erazo’s grievance will be dismissed in its entirety, as it may be after consideration of any such particulars provided.
Dated at Toronto, Ontario this 5th day of October, 2018.