P-2005-1033
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Ted de Boer
Grievor
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Kathleen O’Neil
Vice-Chair
FOR THE GRIEVOR
Ted de Boer (Grievor) Zoltan Ronkai (Representative)
FOR THE EMPLOYER
Mr. Suneel Bahal Counsel Ministry of Government Services
HEARING
February 8, 2006
WRITTEN SUBMISSIONS
March 8, 2006.
Decision
This decision deals with preliminary motions brought by the employer in respect of Mr. Ted DeBoer’s grievance, which alleges that he was discriminated against when the employer failed to accommodate his disability from January 2002 until his retirement in June 2003. The grievance was filed in March, 2004, over eight months after the retirement, which leads the employer to object to the Board’s hearing the matter because of the delay in grieving, as well as on the basis that the grievor was no longer an employee or a public servant when he grieved. The employer also relies on the fact that the grievor voluntarily retired, at a time when, to his knowledge, there were temporary assignments available to him and possible permanent positions in the near future, consistent with his restrictions. Further, the employer maintains that a number of the remedies requested by the grievor, including retroactive pay for performance, are beyond the jurisdiction of the Board.
By way of background, the grievor was an operational manager at Guelph Correctional Centre when he retired in 2003. He had sustained a workplace injury in 1992, which lead to his receipt of workers’ compensation benefits. He returned to work with modified duties, until his condition became chronic, and his doctor advised in January 2002 that he was to have no inmate contact. The employer’s position is that it did not have work that met that restriction until late 2002, but that they continued to look for work which would meet the grievor’s restrictions. The grievor’s position is that he named certain jobs in January 2002 that were within his restrictions but the employer did not assign him to them. The grievor did not dispute the employer’s statement that he made no complaint about the failure to return him to work at the time. Mr. DeBoer went back on workers’ compensation benefits which were augmented by certain credits until June 2002. By the time those credits were exhausted, the grievor sought to return to work.
In December 2002, the employer advised that a job had been found on a temporary basis which met his restrictions, and that they would continue to look for a permanent one. The grievor was then offered the option of being declared surplus and retiring with an unreduced pension with his Factor 80 instead of returning to work at a job within his restrictions, and being on paid leave until his retirement on June 25, 2003. The grievor accepted that offer, and both he and a representative of the employer, Barry Thomas, Senior Transition Specialist, signed a letter dated February 7, 2003, which reads as follows:
The Ministry of Public Safety and Security, Correctional Services Division is committed to assisting staff to safe and timely return to work. This is achieved through the use of individualized workplace accommodations. Over the past year, Guelph Treatment Centre has endeavoured to find suitable work that would fit your medical restrictions. At this time there are temporary assignments available, with possible permanent positions in the near future. Consequently, we are prepared to offer a position consistent with any accommodation needs you may require.
However, it is our understanding that you are entitled on June 25, 2003, to access your Surplus Factor 80. Therefore, the employer is willing to abolish your position as OM16, Operational Manager, Guelph Correctional Centre effective February 10, 2003. However as your Surplus Factor 80 date is June 25, 2003, the employer is prepared to allow you to commence non-working notice from February 10, 2003, up to June 25, 2003.
As a result you will then be able to begin receiving an actuarial unreduced Surplus Factor 80 pension on June 26, 2003. You will also receive payment for any outstanding accumulated credits as well as legislated severance.
I realize the past several months have been very difficult for you and on behalf of the Regional Director, Western Region I wish to thank you for your many years of dedicated service to the Ontario Correctional System and for your co-operation during this difficult transition period.
Please indicate your acceptance and understanding of this action by signing a copy of this letter.
In March, 2004, the grievor became aware that he could have argued that the employer should have been looking more widely for accommodated work throughout the year 2002. It is now the grievor’s contention that the employer was looking too narrowly at the correctional institution in which he worked, whereas there was the whole public service available to consider for jobs within his restrictions. The grievance, which flows from that position, was filed on March 19, 2004. A meeting was held with the grievor, his representative Mr. Ronkai, and the Regional Director on May 10, 2005. At that time the settlement requested was recorded by the employer as follows:
Employment credits used from January 2002 to July 2002 restored
From July 2002 to February 10th 2003 WSIB difference in monies lost
Pay for Performance – January 1st 2002 to March 1st, 2002
Pay for Performance – April 1st 2002 to March 31st, 2003
Pay for Performance – April 2003 to June 25th, 2003.
Due to the fact you did not receive Pay for Performance, you did not receive your last raise on April 1st, 2003, therefore you wish 1.95%, retroactive from April 1st, 2003 to June 25th, 2003
Lost monies from the 2002 OPSEU strike, as you were not given the opportunity to participate.
The first prong of the employer’s objection is based on the submission that the grievance was filed well after the 14-day time limit set out in s. 34(1) of Regulation 977, under The Public Service Act as follows:
- (1) A person described in subsection (2) who is aggrieved about a working condition or term of his or her employment may file a grievance with his or her deputy within 14 days after becoming aware of the working condition or term of employment giving rise to the grievance. O. Reg. 168/96, s. 6 (1).
(2) Subsection (1) applies to a person who has been employed in the public service under the jurisdiction of a deputy minister continuously for at least six months before the deadline under that subsection for filing a grievance. O. Reg. 168/96, s. 6 (1).
Further, the employer notes that the grievor grieved in March 2004, but did not refer the matter to the Board until June, 2005, adding a further period of delay. The second prong of the preliminary objection is more fundamental. The employer maintains that it should not be required to litigate a grievance from someone who has voluntarily retired and that the grievor should not be given access to the grievance procedure afforded to public servants since he is no longer one. Counsel notes that the statute has specified that people can grieve after they are no longer in the employ, if they are removed or dismissed from their employment, but there is otherwise no provision for ex-employees to grieve.
The grievor and his representative resist the preliminary motions on the basis that the grievor grieved when he became aware in March 2004 of the full extent of his right to accommodation of his disability, and thus he has grieved in a timely manner under s. 34(1). Further, the grievor’s submission is that the issue of accommodation is a human rights matter, which should be considered sufficiently important to allow the Board to extend any time limits, and to be undeterred by the fact that the grievor was retired when he grieved. The grievor’s representative points out that the terms of the Workplace Discrimination and Harassment Prevention policy (WDHP) provides that it applies to:
-former employees, generally within six months of separation from the OPS who believe they are discriminated against or harassed during their employment in the OPS.
Furthermore, although time frames are presented within the policy, the preamble to the Section entitled “Time frames” reads as follows:
While every effort must be made to comply with the following time frames, failure to so does not void the process.
The grievor relies on the WDHP policy as the source in employer policy for the rights flowing from the Human Rights Code, including the duty to accommodate disabilities. As to the voluntary retirement issue, Mr. Ronkai submitted on the grievor’s behalf that he had little real choice except to retire given his injury, as he was aware that his options with the Ministry would be limited in the future. Given that the grievor was not aware of the full extent of his rights to accommodation, it submitted that it is unknowable if he would have made the choice he did, had he been aware that he might have been able to obtain accommodation elsewhere in the public service.
The employer responds by submitting that even though it is true that Human Rights statutes have a quasi-constitutional status, there are procedures and time lines involved in filing complaints dealing with such issues, as illustrated by the rulings of the Ontario Human Rights Commission recorded in Dubash and the Ministry of Health, PSGB # P/0010/90 (Willes). See also Jones and the Ministry of Correctional Services PSGB #P/0009/92 (Willes) for an example of a grievance involving an allegation of harassment which was not heard by the Board because it had not been grieved in a timely manner.
The most basic provision regarding the Board’s grievance procedure is s. 34(1) of Regulation 977 of the Public Service Act, set out above. Because the wording of that provision focuses on when the grievor became aware of the matter he is complaining about, the first question for determining whether a grievance is timely relates to the grievor’s personal, subjective, state of knowledge or awareness. Setting aside for a moment the question of whether the grievor retained the status to grieve after his retirement from the public service, it is important to note that, even for persons still in the employ of the public service, the Board has held that the subjective portion of s. 34(1) must be tempered with the objective component of a consideration of the time elapsed since the events complained of and considerations of its impact on the employer. Delayed awareness of their rights by grievors has not lead to an open-ended right to grieve long after the events complained of. See, for instance the analysis in Amirault and Ministry of the Solicitor General and Correctional Services PSGB # P/0028/94 (Lynk) as well as Kroeger and Ministry of the Solicitor General and Correctional Services PSGB # P/0060/98 (Willes) and Lay and Ministry of the Solicitor General and Correctional Services PSGB # P/0014/95 (Leighton), two cases in which it was held that grievors must take some responsibility for informing themselves and, in the absence of compelling circumstances, the grievances were dismissed on the basis of delay. Although the periods of time involved in those cases was longer than on the facts of this case, the same considerations apply, and are heightened by the other elements of this case, most notably the intervening agreement to retire. For a further discussion of the Board’s timeliness jurisprudence, see the decision in Marshall and the Ministry of Health and Long-Term Care O’Neil PSGB #P-2004-2738, relied on by the employer, and the cases cited therein.
The usual elements taken into account by the Board in deciding whether a case should go forward, despite a lengthy lapse of time since the events complained of, include the nature of the grievance, the reasons for the delay, the length of the delay and the question of prejudice to the employer.
Turning to those factors as found in this case, the basic nature of the grievance is an allegation of failure to accommodate going back to 2002. The employer urges a finding that it would be prejudiced in litigating a case of this kind, which would require reconstructing events and job opportunities existing over two years prior to the grievance. Employer counsel submitted the case of OPSEU (Smith) and the Ministry of Northern Development and Mines (Mikus) GSB#2002-0243, 0244 and 1243 in which the Grievance Settlement Board found that, in a case of delay in grieving a job posting, the employer would be prejudiced in trying to reconstruct the circumstances of a number of years ago, in not just one office but several, which would be similar to what would be required to litigate this case. Further, given that there was no objection to the failure to return the grievor to work in January 2002 or request for accommodation from January to June of 2002, the employer was not in a position to have preserved records or evidence as it would have if there had been an earlier claim.
The length of the delay from the main actions complained of, the failure to accommodate in 2002, ranges from almost 15 months, to more than two years, amounts of time that have lead to dismissal of grievances, even where the grievance concerned a dismissal. See for instance Arkelian and Ministry of Health PSGB #P/0044/92 (Willes) , and Johnson and Smith and the Ministry of Community and Social Services PSGB # P/0003/99 (Leighton).
In this case, the reason for the delay is that the grievor had not previously been aware that there might be a wider obligation on the employer to seek a job for him outside the correctional institution in which he worked. The grievor indicated that he grieved within fourteen days of becoming aware of this broader right to accommodation, and argued that the delay should not be considered to start running until he learned of his rights in March 2004. This aspect of the case is very similar to the situation in Lay and Kroeger, cited above, where it was found that delayed awareness was not sufficient to overcome the other factors in those cases.
I have carefully considered all the arguments made as to why I should allow this matter to proceed and have concluded that they are not sufficient in this case. There are good reasons to exercise my discretion to dismiss this case on the basis of undue delay. These include the fact that the overall delay from the time of the events complained of is of a length that has lead to dismissal in many Board cases. Further, although the grievor had a delayed awareness of the full nature of his complaint, neither this, nor the nature of the grievance, essentially to recoup wages that he would have earned if he had been offered work within his restrictions earlier, are so compelling as to overcome the prejudice to the employer which would be involved in allowing the matter to proceed. In this case, that prejudice would include not just the difficulty of reconstructing the events of several years ago concerning job openings potentially in several areas of the public service, but also the prejudice which would flow from allowing the litigation of this grievance despite events which took place in the interim, including the grievor’s retirement.
As noted above, during the time elapsed since the events complained of, the grievor voluntarily retired instead of accepting the employer’s offer of accommodated work, by signing the document dated February 7, 2003, set out above. After that date, the employer was entitled to consider any issues of accommodation at an end, especially as the grievor acted on the agreement and departed five months later in June. To allow the issue of the accommodation of the grievor’s disability to be reopened based on a grievance filed eight months after the retirement, over a year after the agreement to retire, and two years after the now disputed decisions in early 2002, would be unduly prejudicial to the employer’s legitimate expectations, based on the signed agreement, that the grievor was no longer requesting accommodation and that the employment relationship was severed. Once an employment relationship is voluntarily severed by way of an agreement such as the one signed in February 2003, an employer is generally free to conduct itself on the basis that there will be no future obligations to the former employee, once it has complied with its side of that agreement. There might be special circumstances in some other case that would form an exception to that general rule, but those present in this case are not sufficient to base such an exception. Although the grievor submits that he did not have much choice about signing the agreement, there was no dispute that he had over a month to think about it. He was free to get further advice about his choices, including the duty to accommodate, at that time. There are no facts before me which give any suggestion that the grievor was under any type of duress. The grievor may have found the choice difficult, and wished that the choices before him were more varied, or that the employer had offered to return him to work earlier in 2002, but that does not constitute duress. The terms of the February 2003 document make it clear that he was declining the employer’s offer of accommodation and taking paid leave until retirement with an actuarially unreduced pension instead. There is no dispute that the grievor voluntarily retired in June 2003; he does not seek to undo the resignation or to be reinstated to employment. None of his remedial claims extend past the date of his retirement.
It is very important as a matter of policy that agreements voluntarily signed be upheld, or workplace parties would not be able to have confidence in the finality of agreements made and their ability to govern their affairs accordingly. The question of finality of agreements is fundamental to the entire legal system, and is especially important in the ongoing operation of any workplace. Otherwise, parties would be constantly wondering which agreement they could count on, and which one would be subject to being reconsidered indefinitely in the future. It would be overly prejudicial to the employer and all concerned to create a precedent which would amount to a questioning of the finality of the agreement between the parties that lead to the grievor’s voluntary retirement, and the severance of the employment relationship that followed.
Given the above finding, it is not necessary to address the second prong of the employer’s motion which engages the question of the extent of any right to grieve for ex-employees who have not been dismissed or removed from employment.
In the result, for the reasons set out above, the grievance is dismissed.
Dated at Toronto this 10th day of May, 2006