[1990] OLRB Rep. December 1272
2013-89-U Peggy Joe Gasiorek, Complainant v. Canadian Union of Public Employees Local 1263 and Regional Municipality of Niagara, Respondents
BEFORE: Brain Herlich, Vice-Chair.
APPEARANCES: George Marshall, Mary Marshall and Peggy Gasiorek for the complainant; John Burns, Jeffrey Schofield, D. H. Rapelie, S. R. Hennessy, George W. Wilson, Derek Rodgers and Patricia Freeman for the respondents.
DECISION OF THE BOARD; December 17, 1990
The names of the respondents herein are amended to read: "Canadian Union of Public Employees Local 1263" (hereinafter referred to as the 'union') and "Regional Municipality of Niagara" (hereinafter referred to as the 'employer' or the 'region').
This is a complaint alleging violation of section 68 of the Labour Relations Act.
The hearing in this matter commenced on February 28, 1990 and continued on April 2, 23 and 24, 1990, and September 5, 6 and 7, 1990. During the course of those seven days of hearing, the Board heard oral evidence from 12 witnesses and received 57 exhibits. In making my findings of fact, I have carefully considered all of the oral and documentary evidence, the submissions of the parties, and such factors as the firmness and reliability of the various witnesses' memories, their demeanour while testifying, their ability to resist the influence of self-interest when giving their version of events, and the consistency of their evidence. I have also considered what is most probable in the circumstances of the case, and considered the inferences that may reasonably be drawn from the totality of the evidence.
In this regard a number of further general comments are in order. The evidence of the complainant was often in direct conflict or at least inconsistent with the evidence of the eight witnesses called by the respondents. While some of the events involved in this matter go back as far as July of 1986, it was patently clear that the inconsistencies and contradictions in evidence are not simply a function of benign memory lapses or incomplete recollection. The complainant, in giving her evidence, was less than forthright and seized upon every opportunity to free herself of any blame for any of the difficulties she faced. Many aspects of the case were unusual, not the least of which was the fact that the complainant was represented by her father, George Marshall, who, until his retirement in 1979, spent some 21 years working as a union representative and organizer for the United Steelworkers of America. Indeed, even George Wilson, who testified on behalf of the respondent union, acknowledged that Mr. Marshall has contributed many years of service to the trade union movement. Notwithstanding Mr. Marshall's depth of experience in labour relations matters, he acknowledged that he was not experienced in proceedings such as the present one. In any event, the unusual circumstance of a father representing and examining his daughter as a witness generated its own set of difficulties. The complainant, in her lengthy examination in chief, exhibited impatience and disdain, bordering at times on contempt, for her examiner. As might have been anticipated her demeanour showed no improvement in cross-examination. Numerous factual assertions were made without the benefit of particulars supporting the claims (e.g. evidence regarding the number of requests she made for LTD forms). In addition, her evidence was subject to numerous internal inconsistencies. Thus, even prior to considering the inconsistencies and direct conflicts between the complainant's evidence and that of others, I was left with the general impression that much of her evidence was little more than an attempt to present the facts of her case and her own conduct in a light perceived to maximize the culpability of others. I have therefore determined, with one exception, to accept the evidence of the other witnesses who, for the most part, gave their evidence in a clear, cogent, consistent and forthright manner, where such evidence conflicts with the complainant's. The one exception is the evidence of Margaret Noble, the complainant's immediate supervisor. Mrs. Noble frequently appeared evasive and unresponsive in her evidence. She, too, contradicted herself in certain points in her evidence and, although her role in the events giving rise to these proceedings is ultimately somewhat marginal, I have determined to accept the evidence of the complainant where it conflicts with that of Mrs. Noble.
The complainant has been employed at Sunset Haven, a Home for the Aged run by the employer, since 1975. In July of 1986 she was involved in an automobile accident; she was also approximately three months pregnant at the time. Although initially it appeared that no significant injuries resulted from the accident, it soon became apparent that some damage had occurred. The complainant was admitted and treated in hospital for a few days in early August, 1986. During the period following the accident the complainant submitted a number of documents to the employer regarding her absence. These included a note from Dr. Kundi dated July 24, 1986 indicating she would be off work until assessed by her obstetrician; a letter dated August 18, 1986 from A. T. Lacavera, her counsel in the civil action resulting from the accident, indicating she would be off work for "sometime"; and a copy of a form dated September 5, 1986 and completed by Dr. Kundi (apparently for purposes of claiming no-fault benefits) which indicated the complainant would be off work indefinitely.
In the face of this documentation the employer apparently had no reason to challenge the legitimacy of her absence.
On September 29, 1986 Dr. J. M. Ellison, then the complainant's obstetrician, wrote a letter addressed simply to Sunset Haven. All of the participants agree that this letter was entirely unsolicited. Some of the participants raised questions regarding the propriety of a physician sending such an unsolicited letter, particularly in view of its contents. The letter read as follows:
I enclose my reports on Peggy Gasiorek. As you may know she is in the middle of pregnancy and had a fairly minor motor vehicle accident back in July. I got her seen by an orthopedic surgeon and she seems to be managing well now. However, she wishes me to magnify the illness to the extent that she can't possibly work and I don't feel qualified to do this.
I think she is therefore seeking alternative medical attention in the hope that someone will give her the sick note that she demands. I am personally not prepared to be a pawn in the socialist system or to be utilized in this way.
I trust this will help you in your dealings with this rather demanding worker of yours.
- By letter dated October 8, 1986 Mrs. Noble wrote to the complainant as follows:
We are in receipt of a Doctor's letter suggesting that you are able to return to work.
We have been unable to reach you by telephone as your number is not in service. It is imperative that you contact the writer immediately.
- Although Mrs. Noble initially denied the suggestion, it is clear that this letter was sent as a result of the receipt of Dr. Ellison's unsolicited letter. Having received no reply to her letter Mrs. Noble sent the following letter to the complainant dated November 5, 1986:
I am writing to inform you of a change in your employment status at Sunset Haven.
I have tried unsuccessfully to contact you on many occasions by telephone, as well as by registered letter.
You have failed to report for your scheduled shifts and have not provided sufficient reason for
your absence. Therefore, your employment is terminated immediately.
I wish you all the best in your future endeavours.
Apart from Dr. Ellison's unsolicited letter it is difficult to understand Mrs. Noble's concern for the complainant's whereabouts. It was clear that, given the information she had regarding the complainant's injury and pregnancy, Mrs. Noble was not anticipating an early return to work. Even assuming, however, that Mrs. Noble's concern was legitimate the efforts she made to contact the complainant left something to be desired. Her October 8, 1986 letter sent by registered mail was retumed unclaimed - the complainant had moved and gave uncontradicted evidence of having so notified the employer. The telephone calls referred to were made to a number Mrs. Noble didn't deny had been disconnected. Further, it was clear from her evidence that she had a telephone number for the complainant's parents' home and knew she could contact her that way but felt she had no obligation to do so. In these circumstances one might well question the precipitous termination effected on November 5, 1986.
Fortunately, cooler heads prevailed and in its reply (dated December 17, 1986) to the third step grievance meeting regarding the discharge grievance filed as a result of the termination, the employer recognized that it possessed a doctor's certificate indicating indefinite leave and agreed to reinstate the complainant. This agreement was, however, subject to two conditions as follows:
(a) That the employee's sick leave record must show marked improvement upon return to work. The record of sick leave will be monitored and recorded and any noticeable statistics indicating prolonged or regular leaves will not be tolerated.
(b) The employee must advise the employer of her present address or any address change within five (5) days of any such change.
This reply, including the conditions, was not sent to the complainant but was received by Pat Freeman who was, and continues to be, the local president of the union. Ms. Freeman contacted the complainant sometime before Christmas, 1986 and advised her of the employer's position. Ms. Gasiorek was unhappy with the stated conditions and told Ms. Freeman she would consider them and get back to her. According to Ms. Freeman that never happened.
Indeed, the conditions outlined in the employer's letter of December 1986 were not formally accepted in writing until February 29, 1988 when George Wilson, the union's national representative, wrote to the employer accepting the conditions on the complainant's behalf.
Although Ms. Gasiorek testified that she communicated her acceptance of the conditions to Ms. Freeman in December of 1986 and and to other union officials prior to January of 1988, I accept the evidence of Ms. Freeman and other witnesses that no such communication took place. No such acceptance was ever tendered in writing prior to 1988. Even at that time the complainant's acceptance of the conditions was less than unequivocal. On the eve of writing his letter to the employer Mr. Wilson was receiving conflicting instructions from Ms. Gasiorek and her father, who by then was representing her, regarding whether or not the employer's conditions should be accepted.
While in one sense the more than one year delay in resolving the complainant's discharge and accepting the employer's conditions is disconcerting, it is easily understood. It was not until January of 1988 that the complainant felt she was physically able to return to work and secured a doctor's certificate to that effect. In the absence of the prospect of an imminent return to work one may understand the lack of any immediate perceived need on the complainant's part to resolve the discharge and the conditions attached to her reinstatement. Unfortunately for the complainant, as we shall see, her delay in resolving the discharge generated other difficulties. This is not the only example of the complainant's inaction creating such difficulties. The grievor ultimately returned to work in March of 1988 in circumstances we will return to later.
As early as October of 1986 the complainant began to receive what would be a series of invoices and other correspondence regarding the payment of premiums for various benefits. Under the collective agreement it would appear that the employer had no obligation to continue to pay its share (in most cases 100%) of the premium cost for various benefit plans once an employee absent from work had exhausted her sick leave credits (as the complainant had). Notwithstanding this there existed a practice (which was codified in the next collective agreement) of allowing employees to continue benefits coverage by assuming the full premium costs. This option was offered to the complainant who received, at various times, invoices for premiums for the months of September - December inclusive, 1986. Also involved in theses invoices was a claim from the employer for reimbursement as a result of the complainant having received both sick pay and WCB benefits in respect of the same period earlier in 1986. From October of 1986 until April of 1987 there is no evidence of any meaningful reply from the complainant regarding these invoices. Indeed, the evidence of the complainant was that she simply ignored these various invoices.
Matters changed in April of 1987 for at least two reasons. First the complainant received a cheque from the employer in respect of certain payments of retroactivity. However, against these monies due, the employer set off the monies it claimed from the complainant for, inter alia, premium payments. This set off was performed without the complainant's consent and caused her to contact Mr. Wilson. In addition at around the same time the complainant was being required to pay a hospital bill in the amount of $320 in respect of a stay in hospital in January, 1987. There was no dispute that this was the type of bill which would have been covered by the semi-private hospital care contemplated by the agreement had the premiums been paid for such coverage.
In any event the complainant raised her concerns with Mr. Wilson who as a result wrote the following letter (dated April 13, 1987) to Mr. D. H. Rapelje the Director of the employer's Senior Citizen's Department:
I am writing to you to confirm my telephone request to Ms. Mickle for a detailed accounting of the Region's billing for repayment of benefits paid on Ms. Gasiorek's behalf.
I would like to know for what time periods the benefit payments were made and from what sources the monies owing were recovered. Specifically, I would like to know:
Ms. Gasiorek was off on W.C.B. from mid April to the end of April, 1986. The Employer disputed the claim and Ms. Gasiorek had to use eight days' sick leave and some of her vacation. After investigation, the W.C.B. claim was allowed. Were those sick days and vacation reinstated for her later use?
Ms. Gasiorek was terminated and then reinstated as of December 17, 1986. As a result of the termination, Ms. Gasiorek was taken off the Region's benefit plans and had to pay the Welland General Hospital $320.00 for the difference between ward and semi-private coverage. Was Ms. Gasiorek reimbursed for this amount?
Ms. Gasiorek had a car accident in July, 1986 and has been off since then due to a combination of back injury, pregnancy and birth. She has received several billings for benefit payments and received a cheque for retroactive payment of wages in which the cheque stub showed an amount of $510.16 due to her but the cheque itself was for zero amount. Was the zero amount due to the $510.16 being applied to her benefit repayments? If so, did you receive her authorization to do so? For what period was the benefit repayment billings for? What is her present status, on unpaid leave of absence due to illness or pregnancy leave?
I would appreciate your help in sorting this matter out.
- By letter dated April 23, 1987, Miss R. J. Mickle, the employer's personnel officer responded to Mr. Wilson as follows:
In reply to your letter of ApriL 13th, addressed to Mr. Rapelje, enclosed please find a copy of several invoices and a summaiy of the status of monies owed by our above-named employee. For you [sic] information, Mrs. Gasiorek was terminated under our various benefit plans as at December 1, 1986. Mrs. Gasiorek was terminated in accordance with Article 29.05 of the Collective Agreement. Although we were willing to continue coverage under our plans at Mrs. Gasiorek's expense you will note from the attached documentation that we were unable to collect on various invoices sent to her. Our Insurer's advised that she had a claim paid in November and she has therefore been billed up to and including that month.
Although your letter states that Mrs. Gasiorek was reinstated, her status as far as we are concerned is still unsettled as to my knowledge we have had no reply to Mr. Rapelje's letter of December 17th outlining the conditions upon which we would agree to reinstate Mrs. Gasiorek. Further, Mrs. Gasiorek continues to be uncooperative in that she will not reply to letters, she will not keep us advised as to her status and will not return telephone calls.
If there is any further information that we can provide please get in touch with us.
Attached to that reply were a number of the invoices already referred to as well as a hand-written calculation of various amounts owing.
Mr. Wilson forwarded a copy of this reply to the complainant and asked her to advise him of any inaccuracies it may have contained. No response was forthcoming.
The matter of the Hospital bill was pursued, however, as Sharon Simpson, a union steward at Sunset Haven, filed a grievance at the complainant's request. Although the grievance is not dated it appears to have been filed in June of 1987 and claims that "for a period of time I was taken off the Benefit plan" and requests that "the region pay for my hospital Bill".
The grievance was denied on the basis that the grievor's benefits had been discontinued. (In this regard we should note that although there were outstanding invoices regarding benefit payments for August to November of 1986, there were no such invoices for January of 1987 (when the hospital bill was incurred) and no party suggested that any premiums were ever paid in respect of that time period.)
By letter dated July 24, 1987 Derek Rodgers advised the complainant as follows:
Please find enclosed a copy of Mr. Rapelje's reply to your grievance re- Payment of Benefits.
C.U.P.E. Local 1263 Executive Committee discussed your case in the light of the reply and the Committee's decision is not to proceed to arbitration on the basis that it is not in the best interests of the membership to do so.
You realise that you have the right to appeal this decision to the general membership but the next meeting is not until September 14, 1987 which would nullify the grievance because of time.
You can, if you wish, ask for an emergancy [sic] meeting of the Executive committee to appeal their decision.
You also have the right to proceed to arbitration on your own but in such case you would be responsible for paying all costs.
Both Mr. Rodgers and Mr. Wilson testified that the decision not to advance the complainant's grievance to arbitration was made in order to preserve the employer's practice of allowing employees on long term absences to continue their benefits coverage at their own cost either through direct payment or through an agreement to reimburse the employer for such costs upon return to work. From discussions in the course of the grievance procedure Mr. Rodgers and Mr. Wilson concluded that this practice, which was not explicitly required by the collective agreement, would be jeopardized if the complainant's grievance were advanced to arbitration.
In any event the complainant did not respond to Mr. Rodgers' letter. Neither was there any evidence that she took any steps to appeal the decision as outlined in Mr. Rodgers' letter nor sought to have the grievance advanced to arbitration in any fashion at that time. Indeed it would appear that the issue of this $320.00 hospital bill was not seriously raised again until June of 1988 and subsequently with the filing of this complaint on November 13, 1989.
Approximately 6 months after the union decided not to advance the grievance regarding the hospital bill to arbitration, the complainant determined that she was fit to return to work. In support of this determination she filed with the employer a note dated January 6, 1988 from Dr. Sheilagh Hope, which reads in its entirety: "Fit for duty". In response to her request, the employer advised that prior to her return to work, after an absence of almost a year and a half, it would be necessary for her to undergo a medical assessment by a physician designated by the employer. In addition the employer also advised that the outstanding conditions in the employer's third step grievance reply would have to be addressed in order to resolve what it viewed as the still outstanding discharge grievance.
By letters dated January 25 and 28, 1988, the complainant agreed to supply further medical information and agreed to a medical examination by the employer's physician. The complainant's second letter also included the following:
I would also expect that as I handed my Doctors reports to Mr. Rapelje on Jan 7/88 that I be paid wages and benefits lost following the 14 days provided for in the agreement.
None of the participants reviewed (in evidence or argument) the significance of this statement and, upon reviewing the collective agreement, I am unable to find any basis for the statement.
During the course of the discussions which resulted in the complainant's ultimate return to work, the employer also required, given the length of her absence, that the complainant participate in one of the employer's periodic orientation classes prior to returning to work. The complainant agreed to this as well.
As indicated earlier, the employer's conditions were accepted by Mr. Wilson in the letter dated February 29, 1988 as follows:
This letter is in response to our telephone conversation of this date where it was agreed that I would confirm in writing that the conditions set out in your letter of Dec. 17, 1986 is satisfactory and that she will be reinstated on that basis, this has been discussed with Mrs. Gasiorek and she has advised me that this in acceptable to her.
Would you inform Ms. Noble that you have received this letter in order that Ms. Gasiorek might be reinstated in time to join the orientation class which is going to start on Monday March, 7th, 1988.
As late as the day or the day before Mr. Wilson forwarded this letter he was being urged by Mr. Marshall, who was representing his daughter, to reject the conditions and take the matter to arbitration. In a contemporaneous conversation with the complainant, however, she reluctantly agreed to accept the conditions and Mr. Wilson wrote the above letter based on those instructions.
The complainant consequently returned to work on or about March 7, 1988.
Shortly after her return to work a number of issues arose related to her lengthy absence. Despite her evidence to the contrary, I find that only subsequent to her return to work did the complainant raise, for the first time in any significant fashion, the question of her entitlement to long term disability benefits (LTD) during her absence. In addition questions relating to coverage and premium payments during her absence resurfaced.
At Ms. Gasiorek's request the union inquired of the employer as to why the complainant did not qualify for LTD. By memorandum dated March 22, 1988 Ms. Mickle, on behalf of the employer, replied as follows:
I suppose that one of the reasons she did not qualify is that at no time did she institute a claim.
I would point out that our information indicates that this employee was in a motor vehicle accident on July 20, 1986 and further that the qualifying period for long-term disability benefits is "expiration of sick leave credits or 90 calendar days whichever is later". It would appear, therefore, that Mrs. Gasiorek would not in any event have qualified for LTD until October 17, 1986.
I would point out further that the terms of our policy with our LTD carriers state that Mrs. Gasiorek would have had to be unable to perform the duties of any occupation; and further that we have a doctor's report indicating that he would not state that she was unable to work.
We would also point out to you that Mrs. Gasiorek was billed for the cost of benefits for the months of August, September, October and November 1986 and did not submit payment to us for these benefits. The invoices for the months of August and September were only paid by allocating retroactive pay; and the months of October and November, as of this date, remain unpaid. She would not therefore have had LTD coverage at the time she qualified for LTD had she been qualified medically.
We trust this answers your question.
While this response posits a number of different possible explanations for the complainant not qualifying for LTD, it is the inclusion of the last of these (no coverage at the material time) which is perhaps unfortunate in view of subsequent events and in view of positions advanced and lines of questioning followed at the hearing in this matter.
The collective agreement requires the employer to pay 75% of the premium for a mutually agreed upon LTD plan. The plan entered into in accordance with this obligation has a 90 day qualifying period. Benefits commence one month after the end of the qualifying period and a claim, to be timely under the terms of the policy, must be filed within 3 months after the end of the qualifying period - in the complainant's case by mid-January 1987.
While, as we have already seen, there was some dispute still unresolved at this point in time between the complainant and the employer regarding the payment of benefit premiums (including LTD) for the months August to November of 1986, the evidence clearly indicates that the employer had paid these premiums on behalf of the complainant and was seeking reimbursement from her for those costs. Thus Ms. Mickle's assertion, even in March of 1988, that the complainant did not have LTD coverage for October and November of 1986 seems incorrect. I have called this assertion unfortunate because the parties all agreed that LTD premiums were paid for the relevant period (even if retroactively) and, in any event as we shall see, when the insurance company ultimately rejected the LTD claim it never asserted that the rejection was related to lack of coverage or non-payment of premiums.
Upon receiving Ms. Mickle's reply, Mr. Rodgers contacted the complainant and advised her of its contents. He asked her for a written reply which the complainant subsequently provided. I note that this reply is intricately detailed with respect to amounts of money claimed owing including the claim regarding the $320.00 hospital bill. In addition, it clearly asserts the complainant's view of her entitlement to LTD. Despite the otherwise intricate detail, however, nowhere in this document does the complainant suggest any earlier request for LTD application forms from the employer - requests which she later claimed had been denied on numerous occasions.
Mr. Rodgers, by letter dated June 20, 1988 wrote to the employer supporting various aspects of the complainant's claim. He challenged the employer's assertion that the LTD coverage was not in place in October and November of 1986, raised various issues regarding monies owing and the unilateral set off against retroactive pay and concluded that, assuming a proper accounting, an arrangement could be made for weekly deductions from the complainant's pay to reimburse the employer for any amounts still outstanding. In this respect it is again significant to note that all parties agreed that payment for premium benefits during the relevant period was exclusively the complainant's obligation. Mr. Rodgers also attached a copy of the complainant's written reply referred to in the previous paragraph.
While none of the parties offered any coherent account of what transpired in the interim, a meeting was held on September 29, 1988 and was attended by the complainant, union officials, and employer representatives. Following a detailed accounting provided by Bill Szakaly, an accountant in the employ of the region, the parties were able to agree on all monies outstanding and further agreed to weekly deductions from the complainant's pay to discharge her debt.
At that meeting the complainant was provided, for the first time, with the forms necessary to file an LTD application. These forms were not completed and submitted to the employer by the complainant until March of 1989. The employer then forwarded a package of documents, including Dr. Ellison's controversial letter dated September 29, 1986 to the insurance company. By letter dated April 19, 1989 the insurance company rejected the claim for benefits in the following terms:
We have completed our assessment of your claim for disability benefits.
Under the terms of this policy a claim must be received by us within three months after the end of the qualifying period. According to the information received, you became totally disabled on July 21, 1986. Therefore, you would have qualified for benefits on October 19, 1986 and your claim should have been received by January 19, 1987.
Since we did not receive your claim until April 5, 1989, we must decline benefits based on the late filing restriction in the contract.
One reason for the time limit is to ensure our right to a full investigation of your condition, and possibly an independent medical examination, at/or very soon after the time you would have qualified for benefits under the disability provision.
I'm sorry, but since we didn't receive your claim within the time limit stated in the policy, we must deny your claim.
At about the same time that the complainant filed her LTD application with the employer, she also approached Bonnie Robison, the union's unit chairperson at Sunset Haven, and requested that a grievance be filed regarding non-receipt of LTD benefits. Ms. Robison, after receiving advice regarding the appropriate wording for such a grievance, advised the complainant that she was ready to file the grievance on her behalf. Ms. Gasiorek said she would have to consult with her father, Mr. Marshall, who was now representing her. By early May the complainant had still not responded so Ms. Robison contacted her again and was advised that Mr. Marshall was still "checking into it". Ms. Robison never received any instructions from the complainant to file the grievance.
The complainant's claim is threefold. It is asserted that the union breached its duty of fair representation by:
a) failing to accept the conditions attached by the employer to the complainant's reinstatement in a timely fashion thus delaying the complainant's return to work from January 6, 1988 to March 7, 1988;
b) failing to advance the complainant's claim regarding the $320.00 hospital bill to arbitration and;
c) failing to advance the complainant's claim for LTD benefits to arbitration.
Section 68 of the Labour Relations Act provides:
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
- The delay in the complainant's return to work.
Given my finding that the complainant did not, prior to January 1988, communicate her acceptance of the employer's conditions to the union (or to the employer), this aspect of her claim is difficult to support. While the factual finding is at variance with the complainant's evidence to the contrary, it is consistent with the testimony of numerous other witness whose evidence I accept. Whatever one's view of the propriety of the conditions imposed, the complainant's position that the union should have accepted them sooner is difficult to accept in view of the conflicting messages provided to the union on this point. Neither did the complainant strike me as the type of person who was incapable of putting such an acceptance, if it existed, in writing. Given that the union acted promptly upon receiving clear notification from the complainant of her acceptance of the conditions, any delay in her return to work cannot be attributed to the union.
In any event, I cannot help but observe that the approximate eight week delay between Dr. Hope's "fit for duty" note and the complainant's return to work may well be fully attributable to factors other than any delay in accepting the conditions. In view of the complainant's agreement to an examination by the region's physician and to attending an orientation course prior to returning to work, the eight week period would, in all likelihood, not have been significantly shortened.
This aspect of complaint is therefore dismissed.
- The claim for the $320.00 hospital bill.
In argument Mr. Marshall did not, subject to one qualification, seriously press the claim for $320.00 hospital bill.
Without reviewing this aspect of the claim in great detail, Mr. Marshall's qualified acknowledgement that this aspect of the claim is without merit is readily apparent. No premiums had been paid for the coverage in question and under the terms of the agreement the complainant was not eligible for such coverage. Even apart from that the union's decision not to advance the grievance to arbitration was reasoned and rational given (not only the dubious merits of the claim but also) the possible negative affect on other bargaining unit members in advancing the matter to arbitration. Finally, there was no evidence to suggest that the complainant challenged or even disagreed with the union's decision at the time it was taken. The issue of the hospital bill, having been disposed of by the union, was not raised for close to a year nor did the complainant take advantage of any of the internal union appeal procedures offered to her.
Subject to the qualification which follows, this aspect of the complaint is also dismissed.
Under the terms of the collective agreement, premiums for benefits are continued to be paid by the employer in respect of employees receiving LTD. Thus, had the complainant been in receipt of LTD prior (and continuing) to January 1987 when the hospital bill was incurred, her insurance coverage would have been in place.
Thus, I cannot finally dispose of this aspect of the claim without considering the third area of the complaint.
- The claim for LTD benefits
Some further review of the evidence is required in the context of this aspect of the claim.
The complainant was injured in July, 1986, she received LTD application forms in September, 1988 and filed her application in March, 1989. The complainant testified that prior to September of 1988 and as early as August of 1986 she endeavoured to secure LTD application forms. She claimed that during that period she made numerous requests (up to 10) of Ms. Mickle for the relevant forms. She testified that in each case (prior to September, 1988) Ms. Mickle refused to provide the forms and, although specific details of the various requests were not provided, asserted that Ms. Mickle advised her she was not eligible for LTD. On one occasion she did secure (although not from Ms. Mickle) and subsequently file a form which she thought was an LTD from but which in fact was related to her pension plan (OMERS). She agreed that anyone who bothered to adequately read the form would have known that it related to OMERS and not to LTD. Ms. Mickle, on the other hand, denied that any request for an LTD application form had been made prior to September of 1988 and further testified that had such a request been made she would have had no reason to refuse to comply. None of the various union witnesses who testified had any recollection of the complainant raising any issue related to LTD prior to her return to work (January, 1988) or the next months following. That evidence is consistent with the complainant's admission that she never sought (at least prior to September, 1988) any assistance from anyone in the union to require the employer to furnish the LTD forms she claims she was requesting. Similarly the complainant acknowledged that, prior to March of 1989, she made no request of anyone in the union to file a grievance regarding LTD benefits. Finally, while there was no dispute that the complainant asked Ms. Robison to file a grievance on her behalf in March of 1989, the complainant's evidence was that although she never signed it (as she had with previous grievances), Ms. Robison advised her that the grievance had been filed but was subsequently lost or misplaced. As already indicated, Ms. Robison's evidence was that the complainant never gave her the instructions she was awaiting before filing the grievance.
Although I have already set out some general observations and conclusions about the complainant's credibility, I find it necessary to specifically find that her evidence regarding the events just recounted strikes me as highly improbable in the circumstances. Had the complainant been trying unsuccessfully for over two years to secure LTD forms one would have expected some supporting written documentation or, at a minimum, some evidence of an attempt to secure the union's assistance. Similarly, had the complainant believed since August of 1986, that she was wrongfully being deprived of LTD benefits, one would have thought that a request to file a grievance would have pre-dated March, 1989. It may well be that the complainant has internalized what I have referred to as the unfortunate paragraph in Ms. Mickle's March 1988 reply regarding LTD entitlement and seized on that response giving it exaggerated importance. In any event I accept the evidence of the union and the employer and find that the complainant did not raise any issue of LTD entitlement prior to her return to work in January 1988, did not ask for LTD forms until September of 1988, did not request any grievance be filed until March of 1989, and filed the present complaint before giving the union the final instructions they were awaiting regarding whether or not to file the grievance.
In the context of these facts it is difficult to see any merit whatsoever in the complainant's claim against the union.
While more prompt action might have resulted in a successful LTD application, the lack of timely steps taken can hardly be attributed to the union. This is not the only example of the complainant's procrastination - just as she allowed the issue of the conditions attached to her reinstatement to languish, just as she ignored the employer invoices regarding benefits payment, just as she resurrected the claim for the hospital bill months after it was apparently resolved, so too did she allow a situation to evolve where a claim for LTD benefits was not filed until almost 3 years after the injury giving rise to the claim (note here that even after receiving the requisite forms it took the complainant close to six months to file the application).
In the face of these facts, the complainant argues that the union should, having been possessed of sufficient information regarding the complainant's situation, have taken positive steps to protect and insure her rights under the collective agreement. While it might be possible to conceive of circumstances where a union which deliberately turns a blind eye to an employee's employment difficulties may be found to violate its statutory obligations, this is certainly not that case. In any event this Board is cautious in not imposing unrealistic or excessive positive duties upon unions discharging their statutory obligations. As the Board observed in Tony Mederios, [1986] OLRB Rep. Nov. 1541 at paragraph 20:
To hold that a union violates section 68 by awaiting some indication from potential grievors that they wish to complain about their treatment at the hands of the employer, would be to place an unreasonable burden upon a union. When a union learns that an employee has suffered employment consequences, but has not sought its help, though there has been ample opportunity to do so, it cannot be said that the union acts arbitrarily, or in bad faith, by declining to actively seek out that employee to advise them of their rights. If, as counsel for the complainants suggested, the union had a positive duty to seek out and advise the potential grievors of their rights under the collective agreement given that the union was then aware of the discharges, union would be routinely and constantly required to approach employees and explain to them all their rights and obligations under the collective agreement. A union would be required to meet, individually or collectively, with all such employees and not only recite each clause of the collective agreement, but explain to the satisfaction of all employees what such clauses meant. It simply cannot be sustained that a failure to do so amounts to arbitrary or bad faith conduct within the meaning of section 68 of the Act. If any positive duty does exist, it is the duty of employees who want union assistance to so request it.
Thus, even if I were prepared to find that the union (by virtue of the cumulative knowledge of the many individuals involved in the complaint's case over a period of years) possessed sufficient information to know of a possible grievance regarding LTD benefits, I would not be prepared to find, in the circumstances of this case, that the union violated its statutory duty by not actively seeking to solicit the filing of the grievance.
Indeed, in the circumstances of this case, even if the union had refused, in March of 1989, to process an LTD grievance it is difficult to see how such a refusal could be characterized as violation of the Act. Mr. Marshall conceded that given the lapse of time and given the limited employer obligations under the agreement (the employer is obliged to provide the plan not the benefits) the likelihood of any successful grievance could be generously described as remote.
In view of all of the above this final aspect of the complainant's claim (including any subsisting claim regarding the hospital bill) is dismissed.
Having dismissed the complainant's claim in its entirety, I feel compelled to offer some additional comments which may assist the parties. Mr. Marshall advised us that he had been invited (on more than one occasion) by the insurance company to appeal their decision denying benefits. Although consistent with the complainant's conduct generally, it is difficult to understand why this invitation was not acted upon. Nothing in this decision precludes any of the parties from taking any steps available to convince the insurance company to reconsider its decision. Indeed, it might well be in the interests of future harmony between all the parties to co-operate in any such effort.
While there is obviously no guarantee that any such efforts would be successful, there are a few factors the parties may wish to bear in mind should this avenue be pursued. While some twenty documents were filed in these proceeding containing medical information of various sorts it would seem that only a handful of these documents were available to the employer, the union or the insurance company prior to these proceedings. Secondly, it may well be that Ms. Mickle's "unfortunate" reply regarding Ms. Gasiorek's LTD eligibility may have contributed to the delay in filing the application. Finally, and perhaps most important from the insurance company's point of view, the actual value of the LTD claim may well be far less than one might assume at first blush. Although the claim involves an absence in the range of 15 months, I was advised of a number of factors: benefits are not payable until one month after the 90 day waiting period; the complainant received a significant cash settlement in respect of the civil action commenced; the complainant received maternity benefits and was apparently on (or eligible for) maternity leave during a portion of the period in question - each of these factors may serve to reduce the final value of any successful claim. Were the parties to co-operate in seeking to appeal the insurance company's decision, all of the above should be brought to the insurance company's attention.
The complaint is dismissed.