Labour board dismisses Duty of Fair Representation complaint against OPSSU

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ONTARIO LABOUR RELATIONS BOARD

 

Labour Relations Act, 1995

OLRB Case No: 0493-21-U Duty of Fair Representation

Haran Thurairasah, Applicant v Ontario Public Services Staff Union, Responding Party v Ontario Public Services Employees Union (OPSEU), Intervenor

COVER LETTER TO THE PARTIES LISTED ON APPENDIX A

The Board is attaching the following document(s): Decision – April 08, 2022

DATED: April 08, 2022

Catherine Gilbert Registrar

Website: www.olrb.gov.on.ca

Address all communication to:

The Registrar

Ontario Labour Relations Board 505 University Avenue, 2nd Floor Toronto, Ontario M5G 2P1

Tel: 416-326-7500

Toll-free: 1-877-339-3335

Fax: 416-326-7531

 

ONTARIO LABOUR RELATIONS BOARD

OLRB Case No: 0493-21-U

Haran Thurairasah, Applicant v Ontario Public Services Staff Union, Responding Party v Ontario Public Services Employees Union (OPSEU), Intervenor

BEFORE: Maureen Doyle, Vice-Chair

DECISION OF THE BOARD: April 8, 2022

1. This is an application filed with the Board pursuant to section 96 of the Labour Relations Act, 1995, S.O. 1995, c.1, as amended (the “Act”). The applicant asserts that the responding party, Ontario Public Service Employees Union (“OPSSU”, the “union”) violated section 74 of the Act with respect to the applicant’s relationship with the employer, Ontario Public Service Employees Union (“OPSEU”, the “employer”). OPSSU denies that the Act has been violated.

2. In its response, in addition to denying that it has violated the Act, OPSSU seeks dismissal of the application on the basis that it does not reveal a prima facie case.

3. In a decision dated October 29, 2021, the Board directed the applicant to file submissions in response to the request of OPSSU that this matter be dismissed as revealing no prima facie case, including copies of any case law relied upon, and to copy the other parties. The applicant requested an extension of the time for those submissions, stating that an extension is required “due to work commitments” and the need to consult “outside counsel”.

4. The applicant was granted an extension to December 1, 2021 to provide the above-noted submissions to the Board, and to copy the other parties. In a decision dated January 24, 2022, the applicant was granted a further extension to February 8, 2022 to provide submissions and to copy the other parties. The decision stated that if the applicant failed to provide submissions in the timeframe provided, the Board would consider whether to dismiss this matter on a prima facie basis of the materials before it.

5. The Board has received nothing further from the applicant and accordingly this matter is decided on the basis of the materials currently before the Board.

6. The applicant includes Schedule “A” to an Unfair Labour Practice complaint (ULP), which states, among other things that the union understood the employer had hired 24 individuals who were temporary employees, to permanent positions, without competition. The applicant states that the union filed the Unfair Labour Practice (ULP) complaint against the employer on April 16, 2021, and that this complaint has a “direct impact” on the applicant’s pension. The applicant states that the union did not discuss with the applicant its intention to file the ULP and it did not disclose any information to the applicant regarding three days of mediation which took place with the employer, presumably about the ULP.

7. The applicant states that the union asserts it is acting in the best interests of all members but the applicant says that in the ULP the union wants to remove the applicant from the applicant’s permanent position. The applicant asserts that the union has said on more than one occasion that the pension plan is being “impacted as a result of the employer not filling positions on a permanent basis”. The applicant states that the applicant has suggested to the union leadership that the ULP complaint could be resolved by “working out an MOU with the employer on converting temporary staff to permanent positions”, but that the union has not addressed this suggestion. The applicant states that at a General Members Meeting of the union on January 30, 2021, there was “extensive discussion” about the “pension issue”.

8. The applicant also states that the applicant is a racialized person, and that when the employer offered the applicant a permanent position, it wanted to “promote diversity and inclusion within the organization”. The applicant states that the current leadership of the union is not “diverse and inclusive” and asks “Given this, how can OPSSU fairly represent me?”

9. The union submits that the applicant has not established a prima facie case, and requests that the Board dismiss the application. It submits that it is under no obligation to discuss filing a ULP with the members, nor is it permitted to divulge confidential settlement discussions.

10. The union submits that it has taken actions to ensure that temporary positions are filled in accordance with the collective agreement and filed a grievance and the above-noted ULP regarding this issue. It submits that it has worked to resolve the matter on an amicable basis, including participating in mediation with the employer regarding the issue. The union submits that it is obliged to represent all members, and states that the applicant has pled “nothing to suggest that the union wanted the Applicant specifically removed” from the applicant’s position.

11. The union submits that the applicant has not plead anything which would establish that the union treated the applicant in a way that was arbitrary, discriminatory or in bad faith. The union submits that though the applicant states that the union leadership cannot represent the applicant as its leadership is not diverse and inclusive, the applicant has provided “no basis whatsoever to support this claim” and the applicant asks a hypothetical question without any basis in fact.

12. In support of its position that the applicant has not made out a prima facie case, the union cites several decisions: Savage Shoes Ltd., [1983] OLRB Rep. Dec 2067; Bartlett v. Amalgamated Clothing and Textile Union. Local 307, 1983 CanLII 791 (ON LRB) (“Bartlett”); Kezia Motluk v. Halton District Educational Assistants Association, 2013 CanLII 15756 (ON LRB), and Sukhoo v. Labourers International Union of North America, Local 506, 2001 CanLII 20549 (ON LRB).

Analysis and Decision

13. At this stage, the question to be answered is whether any of the applicant’s allegations, if true, make out a violation section 74 of the Act. Section 74 reads:

74. 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.

14. The Board has the authority under Rule 39.1 of the Board’s Rules of Procedure to dismiss an application without a hearing where it does not make out a prima facie case. To plead a prima facie violation of the duty of fair representation under section 74 of the Act, the applicant must plead facts capable of supporting a conclusion that the union acted in a manner that is arbitrary, discriminatory, or in bad faith.

15. The Board in Hill v Canadian Union of Public Employees, Local 793, 2006 CanLII 7208 (ON LRB) summarized the Board’s jurisprudence considering the terms arbitrary, discriminatory and bad faith as follows:

(a) “arbitrary’ means conduct which is capricious, implausible or unreasonable, often demonstrated by a consideration of irrelevant factors or a failure to consider all relevant factors;

(b) “discriminatory” is broadly defined to include situations in which a trade union distinguishes between or treats employees differently without a cogent reason or labour relations basis for doing so;

(c) “bad faith” refers to conduct motivated by hostility, malice, ill-will, dishonesty, or improper motivation.

16. The Board has held repeatedly that the threshold for pleading a prima facie case is not particularly high. In J. Paiva Foods Ltd., [1985] OLRB Rep. May 690, at page 691, the Board held as follows:

The Board’s discretion to dismiss a complaint on the grounds that it does not disclose a prima facie case should only be exercised in the clearest of cases, that is, when the Board is satisfied that there is no reasonable likelihood that a violation of the Act can be established on the facts as alleged.

17. In assessing whether an application states a prima facie case, the Board must assume that the applicant’s allegations are true and could be established if the matter proceeded to a hearing or consultation. The Board does not consider any explanation or defense offered by a responding party in making this determination.

18. While it is clear that the applicant is not happy that the union has filed a ULP compliant which could have an impact on the applicant’s position, there is nothing in the application which would establish that the union has acted in a manner which is arbitrary, discriminatory or in bad faith.

19. The union is not obliged to consult with the members prior to filing a ULP, nor is it required to discuss the substance of settlement discussions with members in these circumstances. Though the applicant believes that the union should conclude an agreement with the employer which would convert temporary staff to permanent positions, and asserts that the union has not addressed this suggestion, the applicant has not made allegations which would establish that by not discussing settlement strategies with the applicant, the union has acted arbitrarily, discriminatorily, or in bad faith. In fact, the applicant has asserted that the union spent three days in settlement discussions regarding the ULP: there is no basis to conclude that in doing so it behaved in a way which was arbitrary or in any way that was contrary to its obligations under the Act.

20. The applicant has asserted that the union wants to remove the applicant from the applicant’s permanent position. As the Board observed in Bartlett:

36. Section 68 requires that each trade union decision be grounded on a consideration of relevant matters, free from the influence of irrelevant considerations. The requirement that a trade union not act in a manner which is in bad faith protects the legitimate expectation that an individual employee’s bargaining agent will act honestly and free of any personal animosity toward him. The requirement that a trade union not act in a discriminatory manner protects against the making of distinctions between employees and groups of employees on bases which have no relevance to legitimate collective bargaining concerns. “Bad faith” and “discriminatory”, therefore, test for the presence, in the process or results of union decision-making, of factors which should not be present. “Arbitrary”, on the other hand, describes the absence in decision-making of those things which should be present. A decision will be arbitrary if it is not the result of a process of reasoning applied to relevant considerations. The duty not to act arbitrarily requires a trade union to turn its mind to the matter at hand.

21. The applicant has provided no indication of how the union has taken action to target the applicant in a way which was due to any personal animosity or took actions for reasons which were unrelated to legitimate collective bargaining concerns. I am not persuaded that the applicant’s allegations would establish that the union acted in a way which was arbitrary or in bad faith or discriminatory.

22. The applicant also asserts that the leadership of the union is not diverse or inclusive and draws the conclusion that the leadership will not be able to represent the applicant fairly. The applicant has provided no particularized assertion to establish that the union has not represented the applicant fairly, and there is nothing in the applicant’s hypothetical question to establish that the union has acted contrary to its obligations under the Act.

23. The applicant has not pleaded facts which are capable of establishing capable of supporting a conclusion that the union acted in a manner that is arbitrary, discriminatory, or in bad faith. For all of the reasons above, this application is dismissed as stating no prima facie case that the union has contravened its duty of fair representation under the Act.

“Maureen Doyle” for the Board


Bargaining update 4.0

Hello OPSSU members,

The bargaining team met with the employer on March 22 for our first day of bargaining.

The parties exchanged proposals, engaged in discussions and will meet again next week on March 29, 30, and April 1.

We will continue to keep you updated and suggest you monitor your email regularly next week.

Stronger, Solid, United!

With warm regards from your OPSSU bargaining team.


Vision Care Reminder

Hi everyone,

This is a reminder that the current window for vision care expenses ends on March 31 and a new period starts on April 1.

Article 22 Insurance, Health and Dental

22.02 e) Vision Care

(i) Eyeglasses, frames and/or contact lenses, per person, per eighteen (18) month period commencing October 1, 1996 to a combined total of four hundred dollars ($400). Dependent children under the age of eighteen (18) are eligible for this benefit annually (twelve months). The plan will pay for all eye tests.

(ii) Provide contact lenses or glasses following surgery (maximum 2 pairs per lifetime). Effective January 1, 2013.

(iii) One additional pair of eyeglasses, frames and lenses, per eighteen (18) month period commencing October 1, 1996, for employees who use a computer, up to a maximum of four hundred dollars ($400) per employee, who is required to operate a computer for two (2) hours or more a day on average; and who is required to undergo a special eye examination once per year, as per Article 26 of this Agreement.

(iv)Provide for a second pair per lifetime for contact lenses or glasses following surgery. Effective January 1, 2013.

Thank you

Lois


Unfair Labour Practice complaints resolved

It is with great pleasure that I write to report that following several weeks of ongoing discussions between OPSSU and OPSEU, the Parties have resolved both of OPSSU’s ULPs and OPSEU’s ULP, along with many outstanding grievances relating to the ULPs. We are very pleased with the outcome of our discussions and the settlement that we were able to achieve.

For the past few weeks, OPSSU and OPSEU have had constructive discussions regarding improving labour relations; these included, in large part, working to resolve the outstanding ULPs and related grievances. On the morning of Mar 9, 2022, the Parties executed a Memorandum of Settlement resolving the ULPs (and related grievances).

Here’s the text of the agreement, along with a PDF.

MEMORANDUM OF SETTLEMENT

BETWEEN:

Ontario Public Service Employees Union/Syndicat des employés de la fonction publique de l’Ontario(the “Employer” or “OPSEU/SEFPO”)

– and –

Ontario Public Service Staff Union (the “Union” or “OPSSU”)

WHEREAS

the Employer and the Union are Parties to a Collective Agreement, effective March 10, 2019 to March 9, 2022 (“the Collective Agreement”);

  • the Parties wish to continue to foster positive labour relations between them, including by making best efforts to communicate regularly;
  • the Union filed two (2) applications alleging unfair labour practices under the Labour Relations Act, 1995, with the Ontario Labour Relations Board (“OLRB”), bearing OLRB File Numbers 2839- 20-U and 0134-21-U (“Union ULPs”);
  • the Union filed several grievances, alleging contraventions of the Collective Agreement; the Employer filed an application alleging unfair labour practices under the Labour Relations Act, 1995, with the OLRB, bearing OLRB File Number 2860-20-U (“Employer ULP”);
  • the Parties have already fully and finally resolved some of the issues in their respective ULPs; on January 14, 2022, the OLRB issued a written decision deferring both the Union ULPs and the Employer ULP to a number of ongoing arbitrations under the Collective Agreement;
  • the Union has filed both a Request for Reconsideration and a Judicial Review application of the January 14, 2022 OLRB decision;
  • in the interest of good labour relations, the Parties wish to resolve certain outstanding matters between them, including the Union ULPs and the Employer ULP, without further recourse to litigation.

NOW THEREFORE, the Parties do hereby agree without prejudice and precedent and without any admission of wrongdoing to the following:

1. The Union ULPs and the Employer ULP are fully and finally settled and resolved.

2. Within ten (10) working days of executing this Settlement, the Union and the Employer shall separately write to the OLRB, with a copy to the other Party, and advise that their respective ULPs are fully and finally settled and resolved and that the ULPs are withdrawn. Further, the Union will advise the OLRB that it abandons its Request for Reconsideration filed in respect of the OLRB’s January 14, 2022 decision. Further, the Union will advise the Divisional Court that its application for Judicial Review has been abandoned without costs and on consent.

3. Both Parties unconditionally retract the allegations that were made in their unfair labour practice applications. Further, neither Party will seek any further remedy with respect to any of the allegations raised in the settled ULPs in future, including in any litigation involving OPSSU and OPSEU/SEFPO.

Vacation Overages and Coverage

4. The Parties agree to consider the 2019 and 2021 calendar years as discrete vacation accrual/overage periods for the purposes of Article 19.03 of the Collective Agreement.

5. The Parties agree to address the issue of “vacation carry-over” during the current round of bargaining, set to commence in March 2022.

6. The Employer will pay out vacation overages that were clawed back from employees in 2019. Payment will be made at the applicable 2019 rates under the Collective Agreement, will be less all statutory deductions and tax withholdings and will be paid with forty-five (45) days of the execution of this Settlement.

7. Within thirty (30) days of the date of full execution of this MOS, the Employer shall review its records to determine whether any OPSSU members have carried over vacation for the 2021 calendar year, in excess of that allowable pursuant to Article 19.03 of the Collective Agreement. Should the Employer determine that an OPSSU member has carried over excess vacation, the Employer shall pay to that member the monetary value of the excess accrued vacation, except as otherwise previously agreed by the Parties.

8. Should there be any disputes with respect to the Employer’s calculations at Paragraph 7, and should the Parties be unable to resolve these disputes, the Parties agree that such disputes shall be resolved using the Mediation/Arbitration Procedure outlined at Article 8.09 of the Collective Agreement.

9. The Parties agree that in accordance with Article 19.03(a), and except as provided for in 19.03(c), employees may not accumulate more than two (2) years of vacation credits. The Parties agree that commencing the date of full execution of this MOS and until the expiry of the current

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Collective Agreement, for the purposes of Article 19, December 31st of each calendar year will be used to calculate the employee’s carry-over, in accordance with the Collective Agreement. The Parties agree to refer the issue of the effective date of this calculation to their respective Bargaining teams with a recommendation that December 31 of each calendar year be used for this calculation. Further, the Parties agree to refer any inconsistencies in the language between Article 19.03(a) and 19.03(b) to bargaining with the goal of resolving these inconsistencies.

10. For the purposes of vacation entitlement and overage when going off on pregnancy and/or parental leave: a) Vacation Bank as of the Commencement of the Leave: The employee is to work with their Supervisor to reduce their vacation bank prior to their leave, such that upon return to active work, they will not exceed the vacation overage as set out in Collective Agreement Article 19.03, except in circumstances beyond the employee’s control.

b) Vacation Accumulation during the Leave(s): Any vacation accumulated while on the leave(s) will not be reduced in accordance with Article 19. At the end of the leave, the employee will work with their Supervisor and will be able to extend this leave by using vacation. Regardless, the Employee’s vacation balance must be reduced to the levels detailed in Article 19 within one year of returning from the leave.

11. The Parties agree that the Union grievance (2020-25) is fully and finally settled and resolved.

12. Any grievances related to vacation overage are fully and finally settled and resolved, without limitation: Union (2020-02); Norman (2020-13); Rosales (2020-14); Darazi (2020-15); Nicu (2020- 16); Danbrook (2020-17); Bahn (2020-18); Walker (2020-19); Malik (2020-20); Sostar (2020-21); Banerjee (2020-22); Gilchrist (2020-23); Union (2020-25); Adach (2020-28); Fraser (2020-31); Grenci (2020-36); Boggs (2020-38); and Mulhall (2020-39).

13. Within one (1) week of the execution of this Settlement, the Employer agrees to rescind its direction requiring that OPSSU members obtain their own coverage while on vacation or their vacation will not be approved, and shall approve vacation pursuant to the Collective Agreement. Grievance Union (2020-24) is fully and finally settled and resolved.

14. The Union will, within thirty (30) days of the execution of this Settlement, advise the Employer what, if any, losses are claimed by Grievor Fraser (2021-08). Within fifteen (15) days, the Employer will respond with respect to these claims. Any disputes shall be resolved using the Mediation/Arbitration Procedure outlined at Article 8.09 of the Collective Agreement. If there are no losses being claimed, the Union agrees to withdraw the grievance.

Job Posting and Filling

15. The Parties agree that bargaining unit positions shall be filled in accordance with the Collective Agreement.

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16. The Union withdraws the following grievances: 2020-46, 2021-05, and 2021-28, which are fully and finally settled and resolved.

17. The Union agrees it is no longer challenging the post and fill process used by the Employer for competitions fully completed between June 30, 2020 and January 10, 2022, and the employees who were awarded permanent full-time jobs during that time are full-time permanent employees in those positions. The Union will not file or pursue any grievances, or any other legal proceedings, related to or arising out of the post and fill process used for competitions completed between June 30, 2020 and January 10, 2022.

18. The Parties agree that Article 11.02.01 (a) and (b) of the Collective Agreement are interpreted as follows:  Permanent employees with more than eighteen (18) months shall be given first consideration, in accordance with the Collective Agreement.  Qualified temporary employees and applicants from outside the OPSSU bargaining unit, in accordance with the Collective Agreement, shall compete for bargaining unit positions in the same manner as permanent employees, including using the same testing, interviews, and/or scoring.  The Parties agree that the Employer need not grant interviews to temporary employees and applicants from outside the OPSSU bargaining unit if they do not pass the testing that forms part of the job competition. 19. The Parties agree that unless and until the relevant Collective Agreement language is changed, Paragraph 18 shall remain in force. The Parties agree that the remainder of Article 11 remains in full force and effect.

20. The Parties agree to develop a working group to review staffing levels and consider where increases in the OPSSU-represented staffing complement are necessary; the working group shall be comprised of three (3) OPSEU/SEFPO representatives and three (3) OPSSU representatives, chosen by the respective Parties. The Parties will have their initial meeting within thirty (30) days of the full execution of this settlement, and will meet at least once monthly, with the goal of having a proposal to take to the Executive Board by the September 2022 board meeting for their consideration.

21. The Employer agrees to contribute five hundred and twenty thousand dollars ($520,000) to the Parties’ joint pension plan and thirty thousand dollars ($30,000) in dues in accordance with Article 4.03 of the Collective Agreement to OPSSU. The Employer will provide written confirmation that this has been completed within forty-five (45) days of the execution of this Settlement.

22. The Union will, within thirty (30) days, advise the Employer what, if any, losses are claimed by Grievors Noakes (2021-09), Lewis (2021-10), Lucente (2021-11), Hall (2021-22), Evans (2021-23),

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Lumley (2021-24), Mahon (2021-26), and Liddle/Campbell (2021-07). Within fifteen (15) days, the Employer will respond with respect to these claims. Any disputes shall be resolved using the Mediation/Arbitration Procedure outlined at Article 8.09 of the Collective Agreement. If there are no losses being claimed, the Union agrees to withdraw these grievances.

Pandemic Exit Initiative

23. The Union agrees to withdraw the following grievances: Near (2021-12); Mason (2021-13); Ledwidge (2021-14); Janson (2021-15); Guppy (2021-17); Simms (2021-18); Szymanski (2021-19); Robinson (2021-20); Clayton (2021-21); and Orzel (2021-27). These grievances are fully and finally settled and resolved. Save and except for enforcement of the Pandemic Exit Initiative (“PEI”) on behalf of the bargaining unit members who were granted the PEI and subject to paragraph 25, the Union will not file or pursue any grievances, or any other legal proceedings, related to or arising out of the PEI.

24. Within forty-five (45) days of the execution of this Settlement and signing the release, the Employer agrees to pay the Grievors listed in paragraph 23 thirty thousand ($30,000) dollars, less statutory deductions, as a retiring allowance in accordance with the Pandemic Exit Initiative/Agreement. Each employee receiving the PEI will sign a release, attached hereto as Schedule A.

25. Should Grievor Ingriselli wish to retire within the next ninety (90) days of the execution of this Settlement, the Employer agrees to pay her thirty thousand ($30,000) dollars, less statutory deductions, as a retiring allowance, in accordance with the Pandemic Exit Initiative/Agreement and Ingriselli (2021-16) shall be deemed to be fully and finally settled and resolved. Should Ingriselli not want to retire within that time frame, the Union agrees to withdraw Ingriselli (2021- 16).

26. The Employer will not re-open the PEI.

Hours of Work

27. The Memorandum of Agreement regarding hours of work signed by the Parties on or about February 26, 2021 continues in full force and effect.

ERFP

28. The Employer acknowledges that it entered into merger and employment agreements with another union and its full time staff, and it did not discuss the impact of those agreements on staffing with the Union in advance of the merger’s completion. The Employer agrees that in any future merger agreements with other unions and/or employee associations, it will discuss any impacts on the staffing complement in OPSSU with the Union in advance of the merger being finalized, and will not enter into any employment agreements directly impacting the Collective Agreement of the OPSSU bargaining unit without the Union’s knowledge and consent.

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General

29. The Employer agrees to withdraw all outstanding Employer grievances which shall be deemed fully and finally settled and resolved.

30. The Union agrees to withdraw grievance Union (2021-31).

31. OPSEU/SEFPO confirms that it has instructed its legal counsel, Mark Mendl that he is not to communicate directly via email to the Union’s Executive Committee regarding outstanding legal matters involving the Parties, unless required by law. OPSSU confirms that it has instructed its legal counsel that it is not to communicate directly with OPSEU/SEFPO’s Executive Board regarding outstanding legal matters involving the Parties, unless required by law.

32. The Employer confirms in accordance with paragraph 3 of this Settlement that it unconditionally withdraws its allegation that Lois Boggs “lied on the witness stand.”

33. The Parties agree that in the event of any breach or alleged breach of this MOS by any of the Parties, this MOS will be enforced by the Union or the Employer by way of grievance and arbitration, as per the provisions of the Collective Agreement, and that arbitration will be the exclusive forum for resolution of such disputes.

34. The Parties acknowledge and agree that nothing in this MOS affects any position that either Party may take in the hearing of the Inglis (2021-06) grievance.

Dated in the City of Toronto this 9th day of March 2022

__________________________ __________________________ For OPSSU – Lois Boggs For OPSEU/SEFPO – Ilana Goodman

__________________________ __________________________ For OPSSU – Tim Mulhall For OPSEU/SEFPO – Stephen Giles

__________________________ For OPSSU – Alison Nielsen-Jones

 

 

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SCHEDULE “A”

RELEASE IN CONSIDERATION OF the payments and undertakings to be provided by Ontario Public Service Employees Union to, or for the benefit of, NAME as set out in the attached Minutes of Settlement, the receipt and sufficiency of which is hereby acknowledged I, NAME, DO HEREBY RELEASE AND FOREVER DISCHARGE ONTARIO PUBLIC SERVICE EMPLOYEES UNION, ONTARIO PUBLIC SERVICE STAFF UNION and their associated, affiliated, predecessor, successor and parents, their respective officers, servants, agents and directors (both in their official and personal capacities) and their respective administrators, successors and assigns, (collectively, the “Employer” and “Union”) of and from all present and future grievances, actions, causes of action, claims and demands (“Claim” or “Claims”) which I, or any of my heirs, executors, administrators or assigns has against them, upon or by reason of any matter, cause or thing whatsoever existing up to the present time, whether legal or equitable, and arising in contract or tort, including without limitation, negligence, and without limiting the generality of the foregoing, specifically of and from all such Claims arising out of my employment and the end of my employment with the Employer. I agree that once I have received the payments and benefits set out in the Memorandum of Settlement, I shall have received all wages, salary, incentive payments, credits, overtime pay, severance pay, pay in lieu of notice of termination, termination pay, vacation pay, holiday pay, pensions or any other employment benefits to which I am entitled, including, but not limited to, any amount to which I may have been entitled under the Collective Agreement. I hereby agree that I have no Claim and therefore will not commence any Claim under any applicable law, including but not limited to the Employment Standards Act, the Labour Relations Act, the Human Rights Code, the Pay Equity Act, or the Occupational Health and Safety Act, with respect to any aspect of my employment (including but not limited to the salary or wages provided to me during such employment) or the end of my employment or alleging breach of any of the provisions of such statutes, including, but not limited to, those provisions which prohibit reprisals by an employer. Further, any and all grievances filed by me and/or the Union on my behalf, or in any way related to my employment with OPSEU, including the PEI and harassment/discrimination grievance, are fully and finally settled and resolved. I agree that I shall be liable for the full amount of any payments or repayments, including, but not limited to, any tax, penalties or interest, which may be demanded pursuant to the Employment Insurance Act, the Income Tax Act, and/or the Canada Pension Plan and/or any similar applicable provincial laws as a result of any payment contemplated in this Agreement, or any payment which may, in future, be found to be payable by the Employer in respect to, and I hereby agree to indemnify and save harmless the Employer from any claim made against it under such statutes I agree that I have canvassed any and all human rights concerns or issues which may have arisen out of my employment with the Employer, the end of such employment and/or the execution of the attached Memorandum of Settlement and this Release. Furthermore, I agree that I am aware of my rights under the Human Rights Code and the anti-discrimination provisions of the Collective Agreement, and I confirm that I have not and will not assert such rights or advance any human rights claim in respect of any matter which arose out of my employment with the Employer, the end of such employment and/or the execution of the attached Memorandum of Settlement or this Release. I acknowledge that the Employer has freely offered the payments and undertakings in the Memorandum of Settlement without admission of any liability and that the payments and undertakings are the sole consideration for this Release.

I acknowledge and agree that:

(i) I have obtained independent legal advice with respect to the execution of this Release and the attached Memorandum of Settlement, or I have freely taken the decision not to do so;

(ii) I have read, understood and agree with all of the terms and conditions contained herein;

(iii) I fully understand that this document contains a FULL AND FINAL RELEASE of all Claims that I have or may have against the Employer and/or Union; and,

(iv) I have signed this Release freely and voluntarily.

Dated at the City of Toronto , Province of Ontario, this day of March , 2022.

SIGNED IN THE PRESENCE OF

____________________________ ______________________________ WITNESS NAME

Name and Address of Witness: [someone other than the Grievor’s spouse] _____________________________

_____________________________

_____________________________

 


Bargaining Update 3.0

Hello OPSSU members,

We will be engaging in negotiations with our employer later this month.

We have secured the following dates to meet with the employer March 22, 29, 30 and April 1st.

Your Bargaining Team is ready to go, and we hope to have a very productive first day on March 22. The employer bargaining team is comprised of: Tara Maszczakiewicz – Chair, Edie Strachan – Vice Chair, Ilana Goodman, Kenneth MacLam, Linda Mariani, Ted Panagiotoulias, Ken Steinbrunner, and Brock Suddaby.

We will continue to provide you with updates during this process. If you have any questions for the team, please email us at bargaining2022@opssu.ca.

With warm regards from your OPSSU Bargaining Team,

Cheryl Wing, Chair
Lois Boggs, President OPSSU
Mirla Alvarado Fenn
Ceceil Beckford
Jean-Philippe Maher
Bryan Stamm


Return to work

As our return to the workplace is fast approaching (commencing March 7 for Support Staff and March 14 for Pro-Tech Staff), I’m reaching out to provide you with further information. I apologize for the lateness of this communication, but we wanted to ensure that we had as much information as possible before communicating; we met with OPSEU yesterday in order to raise our members’ concerns, and OPSEU was able to answer almost all of our questions.

You have all received an email today from Ted Panagiotoulias, outlining some important information about the return to the workplace.

In our meeting with OPSEU yesterday, we heard loudly and clearly that OPSEU’s plan for the return to workplace is based on flexibility and understanding, taking into consideration that each employee will have different comfort levels in the return to the workplace; OPSEU advised that it is considering both physical health and safety and psychological health and safety. As such, if you require flexibility or accommodation in the return to work, you should reach out as soon as possible to your Supervisor to request the necessary assistance, flexibility, and/or accommodation. Some solutions may be flexible start/end times, a gradual build-up of days in the office, attending meetings virtually, etc. If you need assistance in this regard, please contact your Steward.

As Ted outlined in his email, all employees (whether permanent or temporary) will continue to be paid if they are unable to attend the workplace due to having COVID-19 symptoms or they need to self-isolate, etc. We were heartened when OPSEU advised us that this has been – and will continue to be – its practice. We also want to remind you that all OPSSU members (whether permanent or temporary) have 10 sick days per calendar year, paid at 100%.

As you may already be aware, OPSEU members are not – at this time – able to physically attend any OPSEU offices (or membership centres attached to OPSEU offices). If you believe that you are being directed or pressured to meet with members in person, please contact your Steward. In addition, OPSEU has advised us that ALL persons entering an OPSEU worksite (including visitors, contractors, etc.) are subject to OPSEU’s COVID-19 Safe Workplace Directive AND its masking policy; if any concerns arise with respect to this, please contact your Supervisor, Steward, Health and Safety Representative and/or email healthandsafetycommittee@opssu.ca. There is a JOHS committee meeting on Monday, March 14th so if you have questions our committee representatives can take those questions directly to the Employer.

I hope that this information provides you with additional clarity and comfort in the return to the workplace.

We are committed to continuing dialogue with OPSEU through the return to the workplace process. If you encounter any issues or have any outstanding questions, please reach out and we will try to get an answer and/or solve the problem.

Stay safe,

Lois Boggs
President, OPSSU


Vacation Approval

Hi everyone,

I’m writing regarding a recent communication to Local Services and the Collective Bargaining Division from Steve Saysell.  I want to clarify OPSSU’s position on the matter of finding your own vacation coverage.

Steve’s statement that “this has been the accepted practice” is false and misleading. 

Article 19.10 (a) clearly states that vacation requests “will be granted on the basis of seniority within a particular regional office or Head Office department.”

OPSEU is well aware of our position on this issue and OPSSU has filed a policy grievance, an individual grievance, and has included this in our Unfair Labour Practice charges against OPSEU.  Just because the Employer has unilaterally and erroneously implemented a direction in contravention of the Collective Agreement for several years does not, in any way, mean that OPSSU has accepted this practice.  OPSSU has in fact continuously challenged this practice since its inception.

Unfortunately, if you want your vacation approved, based on Steve Saysell’s direction, you will need to find coverage until such time as the issue is resolved by mutual agreement or determined by an arbitration decision.

I am saddened that OPSEU continues to issue direction in clear violation of our Collective Agreement.

I will keep you updated as we move forward.

Thanks and take care,

Lois

President, OPSSU 


Bargaining update 2.0

Hello OPSSU members,

The bargaining team is ready to meet with the employer to negotiate a renewal collective agreement. We have secured the following dates to meet with the employer: March 22, 29, 30 and April 1. 

As always, if you have any questions for the team, please email us at bargaining2022@opssu.ca.

Stronger, Solid, United!

With warm regards from your OPSSU Bargaining Team

Mirla Alvarado Fenn

Ceceil Beckford

Lois Boggs, President OPSSU

Jean-Philippe Maher

Bryan Stamm

Cheryl Wing, Chair


Arbitrator defers ULP pending arbitrations

Hi everyone,

I’m writing to provide an update on the Unfair Labour Practice (ULP) applications. As you may be aware, there was a hearing at the OLRB (by Zoom) on November 13, 2021 before Vice-Chair Maureen Doyle.

At that hearing, the Employer argued that every issue contained within our ULP where OPSSU had also filed a grievance be deferred until the conclusion of all of the grievance arbitration proceeding, including one such grievance that has a first hearing date in 2023; OPSSU argued against such deferral. I should point out that both OPSEU and OPSSU agreed that the deferral request by OPSEU did not include issues from the ULP that had not been grieved.

Please see attached Vice-Chair Doyle’s award; she decided to defer all three ULPs until the conclusion of all arbitrations. Either Party may return to the OLRB within 18 months.

We are very disappointed with her decision because at arbitration hearings, we will not be able to “connect the dots” between each unfair labour practice that OPSSU and its members have had to endure for the last two-and-a-half years.

We have had a discussion with our lawyer as how to proceed and will discuss our options with the grievance committee at our next meeting (January 27). We will likely ask for reconsideration on the entire decision, but – at the very least – reconsideration of the decision with respect to the several complaints that were not grieved.

OPSSU is committed to ensuring we have an open and shared conclusion to the events that have taken place over the last two-and-a-half years.

As always, OPSSU remains open to settlement discussions in the hopes that the Parties can resolve these issues and move forward with improving our labour relations. I personally hope this discussion will take place with Smokey given that these unfair labour practices took place under his watch; however, if Smokey is not interested in engaging in such discussions, then I hope we can have meaningful discussions with the new OPSEU President in April.

Take care and we will continue to update you through this process.

Lois Boggs
President OPSSU


Deferral Decision OLRB Jan 2022

PDF version here

The Registrar
Ontario Labour Relations Board

Website: www.olrb.gov.on.ca
Address all communication to:

ONTARIO LABOUR RELATIONS BOARD

Labour Relations Act, 1995

OLRB Case No: 2839-20-U
Unfair Labour Practice
Ontario Public Service Staff Union, Applicant v Ontario Public Service
Employees Union, Responding Party

OLRB Case No: 2860-20-U
Unfair Labour Practice
Ontario Public Service Employees Union, Applicant v Ontario Public Service
Staff Union, Lois Boggs, Tim Mulhall, Cheryl Wing and Emily Visser,
Responding Parties

OLRB Case No: 0134-21-U
Unfair Labour Practice (Bad Faith)
Ontario Public Service Staff Union, Applicant v Ontario Public Service
Employees Union, Responding Party

COVER LETTER
TO THE PARTIES LISTED ON APPENDIX A:

The Board is attaching the following document(s):
Decision – January 14, 2022
DATED: January 14, 2022

Catherine Gilbert
Registrar

Pg. 1 of 2


505 University Avenue, 2nd Floor
Toronto, Ontario M5G 2P1
Tel: 416-326-7500
Toll-free: 1-877-339-3335
Fax: 416-326-7531

 

Pg. 2 of 2

 

ONTARIO LABOUR RELATIONS BOARD

 

 

OLRB Case No: 2839-20-U

 

Ontario Public Service Staff Union, Applicant v Ontario Public Service
Employees Union, Responding Party

 

 

OLRB Case No: 2860-20-U

 

Ontario Public Service Employees Union, Applicant v Ontario Public
Service Staff Union, Lois Boggs, Tim Mulhall, Cheryl Wing and Emily
Visser, Responding Parties

 

 

OLRB Case No: 0134-21-U

 

Ontario Public Service Staff Union, Applicant v Ontario Public Service
Employees Union, Responding Party

 

 

APPEARANCES: Katy O’Rourke and Joanne McMahon appearing for
Ontario Public Service Staff Union et al; Michael Mendl appearing for
Ontario Public Service Employees Union

 

 

BEFORE: Maureen Doyle, Vice-Chair

 

 

DECISION OF THE BOARD: January 14, 2022

 

 

1. These are applications alleging unfair labour practices under the
Labour Relations Act, 1995, S.O. 1995, c.1, as amended (the “Act”).
Two applications, 2839-20-U and 0134-21-U were filed by the Ontario
Public Service Staff Union (the “union”) and 2860-20-U was filed by the
Ontario Public Service Employees Union (the “employer”).

 

 


– 2 –

 

 

2. Each application contains numerous allegations. Each
allegation is the subject of at least one preliminary objection by the
opposing party. In addition to the other preliminary objections it made,
the employer also submitted that many of the issues are currently
placed before arbitrators for determination, and the Board should defer
consideration of those matters.

 

3. The union takes the position that there should be no deferral
and that the Board should proceed to hear its applications. Generally,
it takes the position that the matters should not be deferred, as the
Board is in a position to hear all of the allegations together, and this is
important in order to discern what it characterizes as a “pattern” of
employer behaviour which is contrary to the Act.

 

4. In a decision dated October 21, 2021, the Board directed the
parties to provide their positions on the opposing party’s preliminary
objections and to be prepared to address them at the Case Management
Hearing. It also directed the parties to be prepared to address the
significance of the grievances, if any, related to the allegations
contained in these applications, including their current status and any
decisions or interim decisions.

 

5. At the Case Management Hearing, the parties provided an
exhaustive list of the grievances which touch upon the allegations
contained in these applications, including their status. With some
exceptions, noted below, the parties were in agreement with respect to
the relationship of the grievances to the allegations contained in the
applications.

 

6. The parties were directed to provide their submissions
regarding the question of deferral of the applications. The Board did not
invite submissions on the possibility of proceeding with the allegations
for which there is no “related” grievance, and indeed such an approach
would appear to be inconsistent with the union’s stated goal of having
all of the allegations being placed together before the Board.

 

2839-20-U

 

7. In Board File No: 2839-20-U (“ULP 1”), the union asserts that
the employer has violated sections 70, 72, 73, and 76 of the Act. The
allegations span the time period from approximately June 2020 to late
April, 2021. The union alleges that the employer held “captive
audience” meetings regarding an arbitral award and that it made
disparaging remarks about the union at the meetings. It further alleges


– 3 –

 

 

that following remarks they made at the meetings, its First Vice
President Cheryl Wing and its former First Vice President Emily Visser
were terminated due to union activity. It alleges that the employer and
some of its members who were in acting supervisory positions to
“infiltrate” a zoom meeting it held regarding the arbitral award, and the
acting supervisors reported back to the employer. It alleges that the
employer changed long-standing practices regarding correspondence to
the union, such as sending copies of discipline and dismissal letters to
its president, sending notice of hiring and contract extension letters to
its president and ending the practice of denoting which employees were
in acting assignments by using “A” or “acting” on emails etc. It alleged
that the employer demanded that its President Boggs and Chief Steward
Mulhall return the laptops and cellphones it had issued to them. It
alleges that unless employees arranged their own vacation coverage,
the employer would not grant their vacation requests, despite seniority
provisions in the collective agreement. It alleges that the employer
refuses to consolidate related grievance, increasing its costs
unnecessarily. It alleges that the employer has not posted vacancies
since June 2020, leaving 40 positions unfilled on a permanent basis. It
further alleges that the employer merged with the Educational Resource
Facilitators of Peel (ERFP) and as part of an agreement with the ERFP,
the employer awarded permanent positions to its members. The union
also alleges that following discussions with it, the employer unilaterally
announced a “Pandemic Exit Initiative” (“PEI”) to employees, though
there is no agreement regarding the process or approval of individuals,
nor is it something which can be grieved. The union also alleges that
its Membership Secretary Alyssa Walker was denied reimbursement for
courses subsequent to having provided testimony on behalf of the union
in proceedings against the employer, and it alleges that this was in
violation of the Act. Finally it asserts that the employer terminated
several other individuals, Shawn Koza, Stacey Tamblin and Jeff Westin,
due to union activity.

 

2860-20-U

 

8. Board File Number No: 2860-20-U (the “employer ULP”) is an
application filed by the employer, in which it alleges that the union has
violated sections 76 and 96(7) of the Act.

 

9. The employer alleges that the union has abused the “Full Time
Book Offs” of President Boggs and chief steward Mulhall, who have been
excused from their full-time duties as employees in order to fulfill their
obligations to the union, because they did not attend special events it
expected them to attend, and was slow in providing it with a draft of the


– 4 –

 

 

collective agreement. It also alleges that President Boggs was slow in
providing it with a reconciliation of paid time off for union members on
union business, and she under-reported members’ time off for union
business. It alleges that with respect to the implementation of the
above-noted arbitral award, the union encouraged members to inundate
supervisors with requests regarding work hours, and that union
President Boggs told the workers to blind copy the union on all such
requests, using an email address it had set up “surreptitiously” to
monitor the requests and responses, without permission from the
employer. Finally, it alleges that Cheryl Wing “verbally berated and
challenged the authority” of senior management in front of staff at the
above-noted meetings it convened to discuss the arbitral award with
employees, and that President Boggs had Emily Visser do the same. It
alleges that the union engaged in a “transparent scheme to thwart the
implementation” of the award in violation of the Act. It also alleged that
in making allegations about the meetings in ULP 1, the union resiled on
its commitments in relation to a Memorandum of Agreement (MOA) it
signed regarding the award. It further alleges that the union
commenced ULP 1 for the improper purpose of intimidating the
employer and its leadership, and using it as a propaganda tool. It also
provides its response to allegations contained in ULP 1. It alleges that
the union has abused the mediation process, citing a lengthy
unsuccessful mediation for which it paid. It alleges that the union’s
communications regarding the PEI were coercive and intimidated
employees, causing fear and anxiety in order to thwart the
implementation of the PEI.

 

10. The employer filed a request to amend its application, providing
additional allegations. The first additional allegation it seeks to provide
is that the union has filed the ULP for the purpose of interfering with the
employer’s leadership elections. It also makes two additional
allegations which do not directly relate to the union’s ULPs or issues
raised therein. In particular, it alleges that the union attempted to gain
access to privileged information by virtue of its choice of law firms, and
also alleges that the union disclosed confidential settlement discussions.

 

0134-21-U

 

11. In 0134-21-U (“ULP 2”), the union alleges that the employer
violated sections 70, 72, 73, and 76 of the Act.

 

12. It alleges that the employer engaged in bad faith negotiations,
because during an extension for filing a response, the employer made
offers of full-time employment to approximately 24 temporary


– 5 –

 

 

employees, without posting the positions. It also alleges that the
employer failed to provide it with answers about the hires, preventing it
from being able to advise and represent its members. It alleges that
two temporary employees have now filed Duty of Fair Referral
complaints against it, due to the employer having violated the Act.

 

13. The union alleges that president Boggs sent an email to the
employer’s counsel regarding litigation and that he responded, copying
members of Boggs’ union executive, in an effort to embarrass union
President Boggs.

 

14. The union alleges that after April 21, 2021, the employer sent
an email to employees in which it made “barely veiled accusations that
the union has disputed OPSEU’s assignment of permanent jobs (in clear
violation of the Collective Agreement) because they are trying to uphold
white supremacy”. It alleges that this is continued interference and
undermining of the union, contrary to the Act.

 

Grievances

 

15. The parties are bound by a Collective Agreement which expires
on March 9, 2022. Article 32.01 of the Collective Agreement provides
as follows:

 

32.01 Discrimination
There shall be no discrimination, restraint, or intimidation
practised or permitted by the Employer or the Union or any
of the officials or officers of the Employer or the Union
against any employee because of sex, sexual orientation,
gender identity, gender expression, age, martial status,
race, colour, creed, ancestry, place of origin, political
opinions, ethnic origin, citizenship, family status, receipt of
public assistance, record of offences, on account of any
Union activity, or because of disability or upon any other
grounds referenced in the Ontario Human Rights Code.

 

32.02 Harassment
There shall be no discrimination, restraint, or intimidation
practised or permitted by the Employer or the Union or any
of the officials or officers of the Employer or the Union
against any employee because of sex, sexual orientation,
gender identity, gender expression, age, marital status,
race, colour, creed, ancestry, place of origin, political
opinions, ethnic origin, citizenship, family status, receipt of
public assistance, record of offences, on account of any


– 6 –

 

 

Union activity, or because of disability or upon any other
grounds referenced in the Ontario Human Rights Code.

 

16. Article 8.05 of the Collective Agreement permits that grievances
related to Articles 32.01 and 32.02 may be filed in a reasonable period
of time after the alleged discrimination or harassment occurred.

 

17. The parties agree that the union has filed grievances regarding
the following:

 

• The termination of Cheryl Wing – ongoing grievance
alleging unjust termination and violation of Article
32;

 

• The termination of Emily Visser – first day of
arbitration grievance scheduled, alleging unjust
termination and a violation of Article 32;

 

• Alleged change in practice of sharing discipline and
hiring/contract extension letters – grievance
referred to arbitration under section 49 of the Act;

 

• Employer’s requirement that Union President and
Chief Steward return their computer equipment and
phones to OPSEU – grievance includes allegation of
violation of Article 32, grievances held in abeyance
at union request pending resolution of related
grievances currently ongoing;

 

• Alleged change in practice regarding vacation
approval process – grievance ongoing;

 

• Alleged failure to post and fill vacancies referenced
in ULP 1 and 2 – grievance ongoing;

 

• Employer’s announcement of Pandemic Exit
Initiative – no parallel grievance, PEI suspended by
employer, but Union has filed 10 grievances on
behalf of individuals to whom it says employer
should have extended payment – first day of
arbitration scheduled, grievance includes allegation
of violation of Section 32;

 


– 7 –

 

 

• Grievances on behalf of Shawn Koza, Stacey
Tomblin, and Jeff Weston – Koza’s termination
grievance and grievance of violation of section 32,
award pending; Tomblin suspension and dismissal
grievances both ongoing; Weston grievance
regarding dismissal ongoing;

 

• Awarding of permanent positions to temporary
staff, referenced in ULP 2 – first hearing day
scheduled; additional grievances filed on behalf of
individuals who awarded permanent positions but
had the offers revoked – first hearing day
scheduled;

 

Amendments to ULP 1

 

18. The union has now written to the Board advising that the parties
have settled some of the issues contained in ULP 1 and that they have
agreed to remove those allegations from the pleadings. In particular,
the parties have agreed that the following allegations be removed from
ULP 1: the allegation that the termination of Cheryl Wing was due to her
participation in a trade union; the allegation that the termination of
Emily Visser was due to her participation in a trade union; and the
allegation that Jeff Weston was terminated contrary to the Act. Further,
the union no longer seeks an order that the employer reinstate Ms.
Wing, Ms. Visser, or Ms. Weston and make them whole.

 

19. The parties’ request that ULP 1 be amended to remove the
above-noted allegations and various references to them in ULP 1, is
granted.

 

Decision regarding Deferral

 

20. The employer submits that the Board’s practice of deferral
encourages the practice and procedure of collective bargaining under
the Act and the dispute resolution mechanism contained in the collective
agreement and it cites Board decisions including Valdi Inc., 1980 CanLII
884 (“Valdi”), INVISTA Canada Company, 2008 CanLII 4768 (ON LRB)
(“INVISTA”), and Maple Leaf Consumer Foods Inc., 2006 CanLII 37797,
(ON LRB) (“Maple Leaf Consumer Foods”), and Conestoga College, 2004
CanLII 13850 (“Conestoga”). The employer submits that the Board only
departs from its general practice of deferring a dispute to arbitration in
exceptional cases, such as where the arbitration process is unavailable
or unsuitable to resolving issues in dispute. It cites Montebello Metal


– 8 –

 

 

Inc., 1982 CanLII 998 (ON LRB) (“Montebello”). It submits that the
Board’s practice is founded on a preference to avoid a multiplicity of
proceedings and to promote the expeditious and efficient determination
of labour relations disputes. It submits that the potential for
inconsistent findings of fact is also a “critical consideration”.

 

21. It submits that the fact that the union has raised a series of
complaints against the employer is not a sufficient reason for the Board
to hear the complaint. It submits that the Board must be satisfied that
the arbitration process is clearly unavailable or unsuitable to resolving
the issues in dispute, and it cites Dupont Canada Inc., 2001 CanLII 9561
(ON LRB) (“Dupont”).

 

22. It submits that deferral would promote the most efficient
determination of the disputes and would avoid the potential for
inconsistent findings of fact. It also submits that there is no doubt that
a labour arbitrator appointed under a collective agreement can deal with
the alleged breaches of the Act with the same force and effect as can
the Board, and it cites INVISTA, especially as here where Article 32
prohibits discrimination on the basis of Union membership or activity.

 

23. The employer submits that the parties have completed many
hearing days over the above-noted grievances, and have expended
considerable time and resources in those grievance processes. The
employer submits that this is duplicative litigation and that there is no
purpose in proceeding, but that in any event, the matters ought to be
deferred to arbitration. It does not submit that the matters ought to be
dismissed outright, but that it is appropriate for the Board to “stand
down” the ULPs and retain jurisdiction to deal with any residual issues
that may not be resolved through the grievance arbitration process.

 

24. The employer submits that the union’s submission that, as it
alleges a pattern of behaviour, the Board should not defer, is not a
relevant consideration under the Board’s deferral process. It submits
that simply labelling allegations as a pattern is not probative in
determining whether to defer. Rather, it submits that according to Valdi,
the Board should be persuaded by the fact that the parties have a
dispute resolution process in place, and that the parties have and
continue to deal with their disputes under the mechanisms provided
under the collective agreement. The employer submits that the process
under the collective agreement is working and that nothing has been
done to stand in the way of that process. It also noted that in Valdi, the
probationary employee did not have access to the arbitration provisions,
and the Board declined to defer as it was not satisfied that there was


– 9 –

 

 

another process available. The employer notes that that is not the case
here.

 

25. The employer noted that in Dupont, the Board deferred where
there were numerous allegations of wrongdoing by the employer. It
noted that the Board noted that the parties’ relationship was a
longstanding one, as is the one here. It submits that labelling disparate
events as a pattern of conduct does not change the analysis of whether
deferral is appropriate.

 

26. The employer also submits that in large part, the remedies
sought by the union at arbitration are remedies it seeks from the Board
in the ULPs. It submits that where the grievances make reference to
Article 32 of the collective agreement, the arbitrator’s analysis will be
very similar to that which the Board would undertake and the arbitrator
will determine whether anti-union animus has tainted the employer’s
actions.

 

27. The union submits that in its ULPs it describes a pattern of
conduct in which the Employer has engaged, which has had the effect
of, among other things, undermining the Union and interfering with its
administration in violation of the Act. It submits that it is not a series
of isolated incidents which can be examined independently of each
other, as at arbitration the employer’s pattern of conduct would not be
addressed. It cites Ontario Public Service Employees Union, 2016 CanLII
81077 (ON LRB) (“Ontario Public Service Employees Union”), where the
Board declined to defer. It submits that by leaving the various
allegations to the grievance process, they would be heard separately by
different arbitrators and the “pattern of behaviour would not be
addressed”. It submits that while some allegations may appear less
serious than others, in the context of all of the allegations together, it
becomes clear that the employer’s actions have amounted to violations
of the Act. It submits that the allegations all relate to a common
workplace dispute and should be before one adjudicator.

 

28. It submits that in Ontario Public Service Employees Union, the
allegations were of a “broad and concerted effort of illegal activity,
involving numerous aspects, in order to undermine the staff union and
punish members for exercising their rights under the Act”. The Board
in that case stated that “…given the broad scope of alleged misconduct,
which falls squarely within the Board’s jurisdiction, this was not an
appropriate case to defer” and the Union submits that the same
reasoning ought to be applied in this case. It submits that the parties
here are the same as the ones in that case and similarly, there were


– 10 –

 

 

complaints of “widespread misconduct”. It submits that here, as there,
the allegations relate to a “broad and concerted effort” to interfere with
rights under the Act.

 

29. The union also submits that where Article 32 has been
referenced in grievances, certain remedies available under the Act are
not before the arbitrators for consideration. It submits that it has an
obligation to represent its members and that “one of the primary aspects
of the duty is to file grievances” on behalf of its members. It submits
that if it had not done so, it would have “lost the right to represent” its
members. It also submits that some allegations listed in the ULPs are
not before arbitrators.

 

30. The union submits that the employer seeks to rely on
jurisprudence where a there was a “single issue ULP” which was deferred
in the face of arbitration, for example Maple Leaf Consumer Foods. The
union submits that such a situation is very different from these
applications. The union submits that this is “not an ordinary labour
relations conflict that can adequately be dealt with” by arbitration. The
union submits that the Board should prefer the decision in Ontario Public
Service Employees Union over the approach taken in Dupont and
Montebello.

 

31. With respect to remedies sought, the union acknowledges that
it has asked for some of the same remedies in various grievances as it
seeks from the Board, but submits that the declaratory remedies it
seeks at the Board are important to the union.

 

32. In reply, the employer submits that the volume of complaints
should not be determinative, as that would encourage litigants to “pad
their complaints and add issues that are not complaints”. It also notes
that though there are numerous allegations, they have not been proven
and cannot be presumed to have merit. The employer cites Montebello
and notes the Board’s interest in avoiding using its resources where
there is parallel litigation, as well as the Board’s interest in avoiding
inconsistent findings of fact and law.

 

Decision

 

33. The Board finds that this is an appropriate case for deferral to
the arbitration process.

 


– 11 –

 

 

34. At paragraph 7 of Valdi, the Board canvassed a number of
factors that the Board will take into account in deciding whether to defer
to arbitration:

 

7. … However, where key provisions of The Labour
Relations Act require important elaboration and application
or where the employer’s or trade union’s conduct represents
a total repudiation of the collective bargaining process, it
becomes more difficult to characterize the complaint as
essentially contractual. It is in these situations that the
Board has asserted its jurisdiction. The former situation is
reflected in Thomas Built Buses Ltd., [1980] OLRB Rep. Feb.
264 and the latter can be seen in New Gregory
House, [1977] OLRB Rep. Sept. 584. Other circumstances
in which the Board has been unwilling to defer to grievance
arbitration involve cases where arbitration may have been
unavailable to the complainant or where relief in that forum
could have been inadequate. See Wallace Barnes Company
Ltd., (1961), 61 CLLC ¶16,198 and the general discussion
in Imperial Tobacco Products (Ontario) Limited,
supra. Moreover, where the Board defers to the arbitration
process it will nevertheless retain jurisdiction as the NLRB in
order to insure (a) that the dispute over the meaning of the
collective agreement is resolved with reasonable
promptness; (b) that the arbitration procedures have been
fair; and (c) that the outcome of arbitration is neither
repugnant to the purposes of the Act nor remedially
inadequate. See Imperial Tobacco Products (Ontario)
Limited, supra, for a full discussion of these subsidiary
principles. We are also of the view similar to positions taken
in Banyard and Stephenson, supra, that the Board will not
defer or will exercise its retained jurisdiction where the
grievance or board of arbitration fails to deal directly and
explicitly with the unfair labour practice issues.

 

35. The union relies heavily upon Ontario Public Service Employees
Union in which it says a similar situation, involving these same parties,
resulted in a decision not to defer. It is evident from that decision that
the various allegations against the employer dated from a compressed
period of approximately two months, at which time the parties were
engaged in bargaining. The allegations were that during that time
period, “four employees were discharged, five employees of the I.T.
department were suspended indefinitely, and other employees were
called into meetings with management and it is alleged were
threatened.” In addition, there were allegations that “the applicant’s
officials were excluded from the employer’s office, among other things”.


– 12 –

 

 

The Board stated that it found there were approximately 6 arbitration
proceedings either ongoing or about to be started, but stated that there
was “no practical way for the union to rely on volume and pattern of
alleged misconduct as evidence of a general scheme”. The Board also
stated that “while not a total repudiation of the collective agreement,
the allegations against the employer are akin to that”.

 

36. The union’s allegations in ULP 1 and ULP2 span a period of close
to one year and are varied. It is not evident that the allegations
presented in these ULPs support an inference of complete repudiation of
the collective agreement, or something akin to that, as the allegations
from a two-month period during bargaining, were found to have been
done in Ontario Public Service Employees Union. The parties have a
long-standing bargaining relationship which appears to be a functioning
one. The parties are experienced in matters of labour relations and have
a dispute resolution process in the collective agreement which the union
has engaged to deal with the matters which are before the Board. While
the Board in Ontario Public Service Employees Union found that there
was no practical way for the union to rely on the “volume and pattern
of alleged misconduct” at arbitration, it cannot be that a large number
of allegations over a more extended period, without more, will
automatically render arbitration insufficient for the resolution of
disputes.

 

37. Many of the allegations are also the subject of current
arbitration proceedings which appear to be fairly advanced in the
process. In addition to the general preference to avoid multiplicity of
proceedings, the risk of disparate findings of fact is accentuated in such
circumstances. Further, many of the allegations are contractual in
nature, for example, failure to post vacancies, the process for vacation
approval, and terminations of employment, and as such are amenable
to grievance arbitration. In my view, there is no need for elaboration
regarding a key provision of the Act, nor is there conduct representing
a total repudiation of the bargaining process.

 

38. Given the inter-relatedness of the union’s ULPs and the
employer’s ULP, it is also appropriate to defer consideration of the
employer’s application.

 

39. The applications are adjourned for a period of eighteen months
from the date of this decision. Unless within that period any party
requests that the Board process the applications or extend the period of
adjournment, the application may be terminated without further notice
to the parties.


– 13 –

 

 

 

40. I am not seized.

 

 

 

 

“Maureen Doyle”
for the Board


Grievance of Shawn Koza – Final Award

PDF version here

BETWEEN:

IN THE MATTER OF AN ARBITRATION
UNDER THE COLLECTIVE AGREEMENT AND THE ONTARIO LABOUR RELATIONS ACT

ONTARIO PUBLIC SERVICE EMPLOYEES UNION

AND
ONTARIO PUBLIC SERVICE STAFF UNION

GRIEVANCE OF SHAWN KOZA


FINAL AWARD

(“the Employer”)

(“the Union”)

Arbitrator: Barry Stephens

Union Counsel: Roberto Henriquez, McMahon Molyneaux Henriquez

Employer Counsel: Mark Mendl, Mendl Workplace Law

Heardings on January 17, June 5, July 8, 23, 30, October 22, November 9 and December 18, 2020; January 18, February 12, 2021
And by Video Conference on May 14, June 2 and July 7, 2021.

Decision Released December 7, 2021

AWARD
[1] This case involves five grievances that are related to events around the termination of the grievor, who worked as a Staff Representative for the employer. The grievor had approximately 11 years of service, and was terminated for cause on September 9, 2019, for being continuously absent from work without leave or authorization for the period from September 3 to 9, 2019, and for failing to provide a medical note when asked to do so. In the letter of termination, the employer characterized the grievor’s conduct as unacceptable and insubordinate.


[2] The main facts are not in dispute. The grievor advised his supervisor, Denis Boyer, that he was filing a health and safety complaint about a training assignment under the Member Development Training (MDT) program that involved work with a particular individual with whom the grievor had had a previous conflict. Boyer’s response to the health and safety complaint was to ask the grievor whether he would be interested in a “buy-out” package to voluntarily end his employment. The grievor made a buyout proposal. The employer’s response was that the grievor’s proposal was not acceptable, and the employer did not make a counter-proposal. The grievor was advised his grievances would be discussed on his return to work the following week. The grievor then went off work ill, and it is this period of illness that led to the grievor’s termination.


[3] The parties agreed that there were five grievances that were relevant to the events that led to the grievor’s termination, and all of them were consolidated in this hearing:

 


2019-44 Termination Grievance
2019-50 Discrimination in Termination
2019-49 Improper Request for Sick Note
2019-48 Violation of Occupational Health and Safety Act, s. 25.2(h) 2019-51 Toxic Work Environment and Harassment – this grievance to be
addressed as part of compensation, pending outcome of grievances above
There was a sixth grievance that did not form part of this hearing and is not affected by this award:
2019-52 Parties agreed this grievance would be placed in abeyance
pending the outcome of another arbitration hearing


Evidence
[4] Denis Boyer, the Region 6 & 6 Supervisor for OPSEU, was the main employer representative in the events leading to the grievor’s termination. Unfortunately, Mr. Boyer became ill in the early stages of the hearing and, although he was expected to testify at some point, he did not recover and passed away in December 2020. I offer my condolences to his family, friends and colleagues for their loss.


[5] Brock Suddaby was the Senior Advisor Employee Relations at OPSEU. He was directly involved in the events related to the grievor’s termination. His evidence-in-chief was provided by way of a will-say statement that he confirmed at the hearing. Suddaby stated that the grievor was terminated for insubordination and for being absent from work from September 3 to 9, 2019 without reasonable cause or justification. The sequence of events is not in dispute. The grievor advised Boyer on August 28, when the buyout issue was first raised, that he would take the rest of that week to consider the


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buyout suggestion. He also told Boyer on August 28 he would to be off sick as of Tuesday, September 3. Although the grievor was in the office from August 28 to 30 (Wednesday through Friday), he spent his time cancelling scheduled meetings and packing personal items in his office. He did not attend work from September 3 through to Monday September 9, the date of his termination. On August 30 the grievor sent Boyer an email saying he would voluntarily resign in exchange for two years of salary continuance including benefit coverage. Boyer responded to state that the grievor’s proposal was “not even in the ballpark” and that he would discuss the grievor’s grievance about the MDT assignment when the grievor returned to work after the Labour Day long weekend.


[6] On Tuesday, September 3, the grievor wrote Boyer to ask him to forward the application forms for Short Term Disability (STD) to his personal email address. That email prompted an email exchange between the two men, which led to Boyer making his first request for medical information.


[7] There was no deadline associated with this request for information, just a request the documentation be provided at the grievor’s “earliest convenience.” Suddaby testified that the grievor’s response indicated that he was refusing to provide medical documentation.


[8] The “threshold” mentioned by the grievor is in Article 23.02.02, which reads as follows:

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23.02.02 After five (5) consecutive days of absence due to illness, no leave with pay shall be allowed unless a certificate from a legally qualified medical practitioner is forwarded to the Employer certifying that the employee is unable to attend to their official duties.
After frequent absences due to sickness, the Employer may request a medical note or require the employee to submit to a medical examination, at the expense of the Employer.

The grievor took the position at the time that Article 23.02.02 prohibited the employer for asking for a sick note except in the two circumstances set out in the article. During the hearing the union agreed that Article 23.02.02 did not prevent the employer from asking for a medical note in circumstances where there were reasonable grounds to suspect abuse of sick leave.


[9] The next day, September 4, Boyer emailed the grievor a longer and more formal communication about his absence. Boyer detailed his understanding of how the buyout discussions had arisen and been disposed of and set a deadline to provide the information, stating as follows:
Based on the sequence of events described above, your assertion that you would be off sick before having consulted with your “medical Team”, the fact that you did not report for work on September 3 without contacting your supervisor or Employee Relations, as well as a less than clear response to my specific request for a medical certificate, are issues that of are [sic] great concern to the Employer. Further, your calendar shows no appointments except for pre-scheduled sector conference calls in what is normally a busy time of the year. Lastly, you verbally advised me that you would be off sick on August 28th, but I have no further notifications regarding any credits being used on August 29th and 30th.
Under the circumstances, your absence remains undocumented and questionable. Article 23 of the OPSSUE CA does not preclude the Employer from requiring documentation to substantiate absences that the Employer reasonably considers suspect.

4

 

 

You are hereby ordered to provide medical documentation and any further information you deem relevant to explain your absence from work since last Thursday, August 29/19. If this information is not provided by 4 p.m. on Thursday September 5, you will be deemed to have abandoned your position and as a result, may be subject to discipline, up to and including termination.
[10] On Friday, September 6, Suddaby emailed the third request for medical information setting out another deadline for the information. Suddaby stated that the grievor had “one final opportunity” to provide documentation by 7 p.m. that day.


[11] The grievor did not respond to the emails of September 4 and September 6. He was terminated on the following Monday, September 9. Suddaby testified that the employer did not receive any documents with respect to the grievor’s medical condition until just prior to the first hearing date in this arbitration. Suddaby testified that the employer’s view was that the grievor’s sickness was not legitimate. He had advised the employer almost a week before his absence that he would be sick the following week. In addition, the grievor attended the workplace over the weekend, on Saturday, August 31, returning his OPSEU laptop and cellphone and removed his personal effects from his office. He also changed his business phone greeting to state that he would be absent until September 11. There were no meetings or other work activities scheduled on the grievor’s work calendar for the month of September 2019.

[12] In cross-examination Suddaby confirmed the employer did not treat this case as a deemed termination. He stated that he normally communicates with employees by email

5

 

or in person. He testified that he preferred to use email and that letters are only sent via Canada Post when employees were hired. He did not want to send the grievor a letter because it would take too long to be delivered. In this case, he used the grievor’s home email address because he was not at work and the home address was the same address the grievor was using for the STD application process. He confirmed that it was normal for the employer to advise the insurance carrier immediately as soon as an employee was terminated. Suddaby stated that he was not aware of any discussion among management officials about the possibility that the grievor’s health may have impacted his actions during the relevant time.


[13] Stephen Giles was a Senior Human Resources Advisor for OPSEU, responsible for overseeing the administration of the sick leave STD plan. He testified that, while the employer was aware that the grievor had requested the STD application forms, the employer was not made aware of when employees apply for STD, and that he did not become aware that the grievor had applied until his application was denied in October, well after his termination. He stated that the employer always followed the medical conclusions reached by the insurance carrier, even in cases where the employer had concerns about the carrier’s decision. Giles testified that, in this case, the employer had concluded that the grievor’s absence was not related to an illness because the grievor had stated during the week of August 26 that he was going to be sick the following week. His subsequent actions indicated that his departure from the office was not a result of illness but of a decision to “elect to not come back to work.” Under cross-examination Giles

6

 

confirmed that the STD packages were routinely sent to employees by both email and regular mail. Giles agreed that he was not a doctor and agreed that the question of whether the grievor qualified for STD was different from the question of whether he was suffering from an illness.


[14] Alison Raison testified for the union. Raison was a social worker with a private practice in the Thunder Bay area. She was a member of the Ontario College of Social Workers and Social Service Workers. She had been a social worker for more than thirty years. Her clients were mostly adults, who presented with a variety of issues such as past trauma, depression, anxiety, and related problems. Raison stated that, as a social worker, she was not permitted to render a diagnosis of mental disorders, but that she worked closely with physicians and psychiatrists who have the authority to render diagnoses, and that those practitioners often reviewed her assessments of her clients when reaching their own conclusions. She testified she worked with clients with a variety of mental health conditions, and she had used different types of psychological therapies. She testified that she has a copy of the DSM-IV manual (now DSM-V) used to diagnose mental health conditions. She stated that it took from six months to a year to see a psychiatrist in the Thunder Bay area and from two weeks to three months to book an appointment with a family doctor.

[15] Raison’s first contact with the grievor was after he had been in a car accident in March 2018. She stated that he told her he had problems with the treatment he had

7

 

received at the hospital and with the other person who had been involved in the accident. The grievor also reported that he was experiencing considerable pressure at work at the time. Raison recommended he take some time off in order to process his reactions. She saw him several times in April and May 2018, at which point he was able to cope on his own and she advised him to call if he needed any further assistance.


[16] Raison next saw the grievor on September 2, 2019. At that time, he told her that
he felt overwhelmed and hopeless. She described him as at times shaking, in tears, having trouble finding his words, and he told her he was not sleeping well. She concluded that
he was not someone who could perform professional duties, and she recommended he see his family doctor in order to find out if it would be appropriate to take some time off.


[17] Under cross-examination Raison confirmed she was not a licensed psychotherapist. She stated that, although she was aware the grievor was being treated by his family doctor, Dr. Toppin, she did not speak directly to Dr. Toppin about the grievor. She stated her assessment of the grievor was based on what he was reporting but also her observations of his emotional state as described above. She noted during the session that he had a diminished ability to think or concentrate. She stated she assumed the events he was describing were described accurately but she was also aware that there was always “another side.” She added she had to base her interventions on what she learned and observed during the session. She stated that she did not ask the grievor if he had been using prescribed or recreational drugs. She was not aware the grievor had been

8

 

in discussions to leave his job. Raison agreed that “stress” was not identified as a disability under the DSM V.


[18] Dr. James Toppin was a General Practitioner in Thunder Bay. He was the grievor’s GP since 1990. He provided diagnosis and treatment for approximately 1700 patients for physical and mental illnesses. He testified that if he was unsure about the diagnosis of a mental illness, he referred the patient to a psychiatrist. Dr. Toppin stated that the Diagnostic and Statistical Manual of Mental Disorders (DSM-V) was the standard reference for the medical profession with respect to mental illness, and that it provided criteria for diagnosis as well as suggested treatments of various disorders.


[19] Dr. Toppin testified about the difference between adjustment disorder and major depressive disorder (MDD). MDD was a deeper-rooted condition that involves the individual’s past experience. Adjustment disorder was a form of depressive state that arose from the individual’s difficulty in absorbing the impact of a traumatic external event and reorienting their lives to a new reality created by the event. Dr. Toppin stated that his method of diagnosis included information reported by the patient as well as observations of their behaviour during assessment.


[20] Dr. Toppin testified about the history of the grievor’s treatment for mental health problems. The first occurred in 2010 as the result of the end of a relationship. Dr. Toppin testified that he diagnosed this incident as adjustment disorder and treated the grievor

9

 

with medication. He noted that the grievor had a relapse after finishing his course of treatment and returned to taking the medication for several months thereafter. Dr. Toppin testified that the adjustment disorder might have sparked an underlying MDD, which could have explained the relapse after first going off the medication.


[21] The grievor’s next mental health issue arose in response to a motor vehicle accident in 2018. Dr. Toppin testified that the grievor was anxious and stressed in the aftermath of the accident but reported the source of his problems to be related to workplace issues. He stated that the grievor seemed to recover quickly from this episode.


[22] Dr. Toppin was asked about booking procedures in his office. He testified that if a medical issue is ‘acute’ he can see a patient within an hour but that otherwise an appointment can take between 2 to 6 weeks to schedule. He stated that after speaking to the person in his office who had taken the grievor’s call, he determined the grievor was “under pressure” and that the need for an appointment was “urgent but not life threatening.” He offered the grievor an appointment the following week, on September 10.


[23] During the September 10 appointment the grievor advised that he had been fired the night before. Dr. Toppin testified that the grievor exhibited symptoms including: upset, crying, flustered, agitated movements, a “hang-dog” demeanour, difficulty finding words and answering questions, and an uncharacteristic slovenly appearance. He

10

 

testified that, although he did not conduct a full mental status examination, his observations amounted to “about 90%” of such an examination. He concluded the grievor was experiencing an adjustment disorder at that point, observing that the DSM-V indicates that MMD is not normally diagnosed unless the patient exhibited depressive symptoms for a period of more than two weeks. The grievor had a follow-up appointment on September 24. The doctor observed at that point that he was “still crying” and reached the conclusion that the grievor was suffering from a more severe depression and suspected that the grievor may have been suffering from a “low level” depression since 2018 which had resurfaced because of the loss of his job. Dr. Toppin stated that it was possible that the grievor had known that he would need time off after the employer raised the possibility of a buy-out, because he may have felt the onset of the symptoms of his depression.


[24] During cross-examination Dr. Toppin agreed that his report, dated November 11, included all his observations up to that point, not just the results of the September 10 appointment. He stated that the assessment on September 10 lasted approximately 10- 12 minutes and included time to fill out the STD form. He testified that he changed his view about the severity of the grievor’s condition during the September 24 appointment because he observed depression-related symptoms that had been in place for more than two weeks, at which point he diagnosed the grievor with depression.

 



11

 

[25] Dr. Toppin was cross-examined closely on his notes, and particularly why his clinical notes did not contain direct references to the criteria for depression. He responded generally that he does not take detailed notes and tends to record either observations or conclusions with respect to how the patient presents and responds during an assessment. At times he would note a conclusion in his notes, while at other at times he might note a detail that points to a conclusion. It was put to Dr. Toppin that he was “jumping to conclusions” to conclude from the fact that the grievor was wearing sweatpants that he was depressed. He responded that he had diagnosed depression based on several factors. The grievor’s appearance was one factor given that he knew the grievor to be someone who normally dresses well, and the notation about the grievor wearing sweatpants to the November session was his way of recording that the grievor had an unusual unkempt appearance, which reflected his low mental state. Dr. Toppin stated that he observed that the grievor was better dressed when he arrived at the appointment on January 14, and that this was an indication that his mood had improved in that he was taking better care of himself.


[26] Dr. Toppin stated that he had known Raison for years, was familiar with her reports, and had found her to be a reliable health care professional. His conclusion was that the grievor’s state of mind in 2019 was very similar to the depressive episode after the motor vehicle accident in 2018, that the grievor was unwell and that he had no information that pointed to a better explanation than a recurrence of the adjustment disorder and MDD.

12

 

 

[27] The grievor, Sean Koza, worked previously as a psychiatric nurse. He joined OPSEU staff in 2008 in a temporary position, and eventually became a Staff Representative. He testified that Denis Boyer became his supervisor approximately five years prior to his termination.


[28] The grievor testified that he lived about a half hour drive outside of Thunder Bay and his home was in a “fringe” area for internet access. For this reason, he testified, he did not often work from home. He stated that his co-workers, including Boyer, were aware of these limitations on his access to internet.


[29] The grievor testified about his medical history. He was involved in a motor vehicle accident in March 2018. Ultimately, this accident contributed to his decision to begin to prepare for his retirement, including enrolling in the employer’s pre-paid leave plan, which he hoped to use as a means of retiring early. After he returned to work from the accident, he said, he experienced a higher-than-normal workload, which included often driving to Dryden, about four hours from Thunder Bay. He testified he often felt stressed and exhausted. He developed some concerns about the distribution of work because his opinion was that his assignment was more demanding than that of other staff and discussed these issues with Boyer, but no changes were made.

 



13

 

[30] One of the events that led up to the grievor’s termination involved Membership Development Training. The grievor spoke to Boyer about one participant in the program with whom the grievor had previously had a conflict. He asked Boyer not to assign him to work with that individual during the MDT process. The grievor testified that Boyer got back to him later and advised him that the response to his request from higher-level OPSEU management was less than favourable, and that Boyer then asked him what it would take for the grievor to voluntarily leave his employment. The grievor said that the suggestion of a buy-out “hit me hard”, and he contacted Boyer later that day to ask if he was “serious” about the question, and Boyer confirmed he was. The grievor said he would need a few days off to consider, get advice and respond, and that Boyer agreed he should do so.


[31] The grievor testified that he felt like his options were limited. He either had to “play ball” with respect to the MDT issue or take a buy-out. He stated that he assumed that if he did not take a buy-out he would be in danger of being terminated regardless. He needed to consider the possibility of a buy-out. The grievor responded to Boyer by email on August 30, stating that he would leave his position in exchange for two years’ salary continuation with full benefit coverage. Boyer responded quickly by email to the grievor’s proposal as follows:
Hi Shawn.
Your proposal is not even in the ballpark. We can discuss your grievances next
week.



14

 

The grievor testified that he was “stunned” by the response. He advised Boyer that he would likely be taking sick leave the following week. The grievor testified that, given his history with mental health issues, he knew it would take a week or two to come to terms with events and, as he put it, “get the train back on the rails.” He stated that he had taken similar leaves for mental health reasons in the past that Boyer had accepted, and he had covered his pay by using vacation or compensating times as permitted by the collective agreement.


[32] On Saturday the grievor drove to the Thunder Bay office twice to return items that belonged to the employer. He also cleared his scheduled for the month of September. These actions indicate the grievor did not expect he would be returning to work. He testified that he understood that the employer did not want him to continue working and that he “had to be prepared for termination.”


[33] The grievor attended an appointment with his therapist, Raison, on Monday, September 2. He testified that he was an emotional “mess” that day, which was confirmed by Raison’s evidence. He said that she advised him to get an appointment with Dr. Toppin because she thought it might be appropriate for the grievor to take time off from work. The grievor did not report to work on September 3. Boyer sent the grievor an email that day stating that the grievor should provide a medical note for his absence at his “earliest convenience.” The grievor responded to Boyer that a medical note was not required under Article 23.02.02 of the collective agreement and that he intended to

15

 

grieve. He testified, however, that once he received Boyer’s request, he took steps to secure an early appointment with his doctor. He conceded that he did not mention this fact in his response but that once it had been requested it was “understood” that he had to provide it. The next day, September 4, the grievor was able to secure an appointment with Toppin for September 10, the following week. He testified that the appointment was booked more quickly than was normally the case, and that he thought he was being compliant with Boyer’s instructions by booking the appointment for the following week. He did not believe he was being insubordinate and that the appointment was booked at his “earliest convenience.”


[34] The grievor began the process of applying for short-term illness benefits (STD) on September 3 by asking Boyer to arrange for the STD application package to be sent to his personal email address.


[35] Under cross-examination, the grievor stated the drive from the OPSEU Thunder Bay office was approximately 30 to 45 minutes, depending on the time of year and the weather. He agreed that he did not provide complete medical information to the employer until after having been ordered to do so as part of these arbitration proceedings. He stated that he had discussed the end of his employment with Boyer on one previous occasion but in the context of succession planning in the office, given that he intended to use the pre-paid leave plan to bridge to an early retirement.



16

 

[36] The grievor agreed that on August 28 he had advised Boyer he would be “off sick” the following week. He stated that he knew on August 28 that he would be sick on the following Tuesday, after the long weekend. He agreed he was not sick on August 28, 29 and 30. He testified, however, that he felt a mounting anxiety around the circumstances given that he was only 50 and was about to become unemployed. He stated it was “difficult to get his head wrapped around” the major life change he saw coming. He knew he needed time to manage his anxiety and would need to take time off work to do that.


[37] Employer counsel put to the grievor that clearing out his office and other actions indicated that he had decided that he would never return to work with OPSEU. The grievor responded that that was a decision that had already been made by the employer when they told him that there was a desire on the part of OPSEU management for him to leave. He agreed, however, that he had not been formally terminated. When it was put to him that his actions were not consistent with a person intending to return to work, he responded that his actions were consistent with a person who was not welcome back at work. The grievor agreed that the employer had the right to ask for a sick leave note despite Article 23 in cases where there was a reasonable suspicion of misuse of sick leave. The grievor acknowledged that he had asked the employer to send him the STP application forms by email.


[38] The grievor testified that he became aware that he had been terminated when he received a text from Lois Boggs, the OPSSU President, at approximately 5 p.m. on

17

 

Monday, September 9. Boggs advised the grievor to check his email. He testified that he drove down the road to download his email and read the letter of termination. He testified that, similarly, he did not read the September 5 deadline email notice sent by Boyer until the next day, September 10. Similarly, he testified he had not previously read either of the two ‘deadline’ emails, one sent by Boyer on September 4 and the other by Suddaby on September 5.

[39] The grievor was asked why it was that he saw his doctor on September 10 but that he did not get a medical report from his doctor until November 11. He stated that by the time he saw his doctor he was aware he had been fired and he “did not see any point” to providing the documentation. He stated in retrospect this was not a good decision but that he was not in a “good mental condition” at the time. The grievor acknowledged that he had posted a harsh comment about Boyer on a Facebook group shortly after Boyer’s death. He stated that, while it would be difficult to return to work at OPSEU, he did not want to close off any options.


Employer Submissions
[40] The employer stated that the grievor had been terminated for being absent without leave from Tuesday, September 3 to Monday, September 9. The grievor had no valid medical reason to justify his absence, nor did he follow clear directions to provide medical information in a timely manner. The employer asserted that the only way to understand the evidence was to accept that the grievor had voluntarily absented himself


18

 

from the workplace, believing that the employer would eventually propose a severance package. All his actions were intended to serve this aim, and to increase the pressure on the employer to make a proposal for a buyout of his employment. The employer submitted that it had good reason to suspect the grievor’s absence and to ask for medical confirmation. The union asserted he knew on August 28 that he was going to be sick the following week, but he did not ask for the STD forms until September 4. This was not explained. His statement that he knew he would need two weeks off to “get back on track” was incoherent and self-serving.


[41] The employer described as “incredible” the grievor’s story about not reading the emails from Boyer and Suddaby setting deadlines for medical information. His evidence was not consistent with the surrounding known facts, including that the grievor had communications through the same email address with the employer both before and after the two emails in question. At the time the grievor was also expecting the employer would make an offer for a termination package. It was highly likely that the grievor was checking his email and that he read but decided to ignore the two messages. The employer argued that it did not matter why the grievor ignored the messages. He held the mistaken view at the time that the employer did not have the right to request medical documentation until after five days of absence, and he also harboured a deep animosity to Boyer, as was demonstrated by his Facebook post in the aftermath of Boyer’s death. Either or both could have motivated the grievor to ignore the employer’s clear directions.



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[42] The employer argued the evidence demonstrated that the grievor had decided he was not going to return to work with OPSEU. He stopped working for the employer during the week of August 26. He attended the workplace that week only to work on disengaging from the job, cancelling meetings, organizing his personal effects, and so on. He ceased communicating using his work email address and he cleared his calendar of all meetings in the month of September. He drove to the office on Saturday to pick up his remaining personal items and to return all OPSEU property in his possession. He made the long drive to the office a second time on Saturday to return a file he had at home but had failed to return on the first trip. After that Saturday, he did not return to the office. There was no question that the grievor considered that his employment at OPSEU was over, yet he did not properly explain why in his evidence. His actions to terminate his working contact were taken prior to consulting with any of his medical advisors, which demonstrates that his decision to leave was unrelated to any medical considerations.


[43] The union argued that the grievor had a history of mental disorders, but the employer was not aware of his medical condition, so the only relevant question was whether he was properly absent from work. The employer relied on the fact that it received no medical documentation until shortly prior to the first hearing day in this arbitration and full disclosure required an order for production. As a result, the employer asserted it had been deprived of the opportunity to reconsider the decision to terminate in light of timely medical information solely because the grievor decided he would not disclose any information to the employer.

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[44] The employer argued that the grievor’s assertion that he did not see the ‘deadline’ emails was not credible and did not pass the test set out in Faryna v. Chorny. The grievor had argued that he checked his email before and after the two key emails, but not for a period of five days in between. Such an assertion was simply not believable, particularly given all that was happening and the critical nature of any communication that would have been coming from the employer around this time. Similarly, the grievor’s failure to tell Boyer on September 3 that he was making plans to see his doctor, and to let him know on September 4 that he had booked an appointment on September 10 deprived the employer of the chance to consider how those facts affected the situation. The grievor had decided that the employer was not entitled to any information, and he kept Boyer in the dark. In the circumstances, it looked as though the grievor hoped the employer would terminate him. Ultimately, the employer asserted, it did not matter because email was the grievor’s chosen method of communication, and his failure to check it would have been highly unreasonable and irresponsible.


[45] The employer was critical of the medical evidence of Raison and Dr. Toppin. Both relied on “sketchy”, incomplete notes. Raison was “argumentative” and acted as an advocate for the grievor. Dr. Toppin was not a specialist and not qualified to treat psychological disorders and, rather than apply objective testing, he conceded much of his obligation to diagnose the grievor to the analysis made by Raison. Dr. Toppin did not have independent recall of the grievor’s condition, and he relied on his vague notes as the basis

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for his evidence. He did not check to find out if the grievor’s behaviour was related to drug abuse; he did not observe symptoms daily over a two-week period before diagnosing depression, as required by the DSM-V; he did not conduct a full mental health assessment; and he never stated in his testimony that the grievor was unable to perform his full duties because of his condition.


[46] In summary, the employer argued the grievor ignored employer directives to provide medical documentation. He was absent without leave from September 3 to 9 inclusive but his explanation of illness was not substantiated by any medical evidence. Those were sufficient facts to support termination. In addition, there were aggravating factors, including the grievor’s refusal to disclose medical information, his unexplained measures to sever his employment relationship, and the fact that he did not acknowledge that he has any responsibility for the events around his termination.


[47] In the alternative, the employer submitted that it would not be appropriate to reinstate the grievor and that this case should be considered as one requiring compensation in lieu of reinstatement. In the event the termination was not upheld, the withholding of medical information should be weighed as an egregious transgression on the part of the grievor, and that he be suspended without pay until the date of the award.


[48] The employer relied on the following authorities: Salvations Army Grace Hospital, [1980] O.L.A.A. No. 23 (McLaren); St. Joseph’s Health Centre, [1998] O.L.A.A. No. 79

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(Joyce); City of Toronto, [1987] O.L.A.A. No 51 (Davis); Kubota Metal Corporation, [2012] CarswellOnt 13497 (Trachuk); Sault Area Hospital, [2011] CarswellOnt 12072 (Steinberg); Regional Municipality of Waterloo, [2011] CarswellOnt 15619 (Rayner); Labatt’s Ontario Breweries, [1990] CarswellOnt 4183 (Brandt); Brown & Beatty, 7:6142; Town of Caledon, [2008] CarswellOnt 5574 (MacDowell); City of Brampton, [2008] CarswellOnt 5338 (MacDowell); TRW Linkage & Suspension Division, [2005] CarswellOnt 6375 (Hinnegan); Toronto District School Board, [2009] CarswellOnt 10856 (Luborsky); Aviscar Inc., [2012] CarswellOnt 4961 (Chauvin); Calgary Co-operative Association, [2012] CarswellAlta 941 (Ponak); Canada Post Corporation, [2004] CarswellNat 1192 (Jolliffe); Canadian Regional Airlines Ltd., [1998] CarswellNat 3225 (Smith); Regional Municipality of Cape Breton, [2003] CarswellNS 660 (North); Grand Erie District School Board, [2018] CarswellOnt 9820 (Howe); Real Canadian Superstore, [2015] CarswellAlta 1521 (Sims); Spectra Energy Transmission, [2013] CarswellNat 5701 (McPhillips); Telus Communications Co., [2015] CarswellNat 7398 (Hornung); Toronto Community Housing Corporation, [2016] CarswellOnt 9657 (Johnston); Metro Ontario Inc., [2017] CarswellOnt 8258 (Chauvin).

 

Union Submissions
[49] The union argued that this case was largely one about fair treatment of the grievor. The grievor was an employee who was suffering from high levels of stress and having difficulty coping in the workplace. He had a history of mental disorders going back to 2010 and as recently as 2018, one year before he was terminated. Boyer was aware of this history and had previously demonstrated flexibility when the grievor needed time off.

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[50] The grievor testified that he had been devastated when the employer raised the possibility of a buyout. It was a blow to him, and it caused another mental health episode, diagnosed initially as adjustment disorder and then as Major Depressive Disorder by Dr. Toppin. In other words, the grievor was ill and had required time off.


[51] The union submitted that there was no substance to the employer’s allegation that the grievor had been insubordinate. He told Boyer’s he was going to grieve the first request, but, at the same time, he took immediate steps to get an urgent appointment with his family doctor, responding appropriately to Boyer’s instruction to do so at his “earliest convenience.” Unfortunately, he did not read the next two emails with the deadlines, and the situation deteriorated from there. The employer did not show any concern about the grievor’s state of health although, they were aware that the grievor was applying for sick leave benefits. The grievor had no disciplinary history and yet he was terminated with unseemly haste, with the employer imposing tight deadlines and not taking responsibility for ensuring those deadlines were clearly communicated.


[52] The grievor had about eleven years of experience, during which time he had worked as the “face of the organization” to OPSEU members. Despite the grievor’s lengthy service, the employer appears to have discounted his concerns about the MDT assignment. There was no evidence that the employer had conducted a basic investigation into the grievor’s concerns. When the buyout option was raised, and the

24

 

grievor had absorbed the impact of the employer’s response, he realized he would need time to consider his response and relied on Boyer to allow him similar flexibility with respect to time off, just as he had been accorded in the past. The grievor took two days to respond. He made an opening proposal. The employer’s response was particularly damaging. Boyer refused to make a counterproposal and suggested the situation could all go back to normal, and they would carry on with reviewing the grievance the following week. The response was, for obvious reasons, hard for the grievor and, understandably, he confirmed that he was going to be sick the following week. At this point, the grievor understood his career as a union representative with OPSEU was over and he had difficulty accepting he was unemployed at the age of 50.


[53] The grievor sought medical care for his mental distress. He saw Raison on the Labour Day Monday and booked an appointment with his family doctor on September 10. On September 4, the employer unilaterally decided to “up the ante” and sent an email to impose a 24-hour deadline for providing medical information. This act appeared to be a direct response to the grievor’s request for STD forms. The grievor testified that Boyer regularly reached him via text messages, but that did not happen this time. The grievor was not well and the employer used an unreliable means of communication.


[54] The union asserted that Raison’s evidence was reliable and useful. She was a health care professional with more than 30 years of experience providing counselling and support for people with mental health disorders. She had worked with the grievor

25

 

previously. She assessed the grievor’s symptoms without providing a diagnosis, which she was not permitted to do. She was subjected to tough cross examination but remained consistent in her observations. Dr. Toppin also had decades of experience as a family doctor and treated the grievor for each of his major episodes of depression in 2010, 2018 and 2019. His diagnosis of depression was attacked on the basis that his notes were not clear and, in the employer’s opinion, did not match with the DSM-V. Even assuming the notes were not easily understood by anyone else, that did not affect Dr. Toppin’s ability to understand them, and he was able to testify in detail about his observations and state of the grievor’s health.


[55] The union argued that the medical evidence showed the grievor was in a mental health crisis at least by September 2, when he was seen by Raison, and he was diagnosed by Dr. Toppin on September 10 as suffering from a “severe” adjustment disorder. The union argued that it was not appropriate to discipline an employee in such circumstances, particularly when the discipline was based on rushed timelines contained in unverifiable communications.


[56] In summary, the union submitted that the central question was whether the grievor was genuinely ill. The union argued that, if the grievor was scheming, his plan had no coherent logic and led to his termination, which provided him with no advantages. The evidence did not show that the grievor was insubordinate or absent without leave. The request for medical information was improper because there was no basis to suspect

26

 

the grievor was abusing sick leave. The grievor complied with Boyer’s first request and took steps to obtain medical information at his earliest convenience. The subsequent requests were not clearly communicated. The grievor was sick during the relevant time. Even if the grievor bore some culpability in the circumstances, termination was not a reasonable response, and a short suspension would have been more appropriate given the mitigating circumstances of the grievor’s illness.


[57] The union relied on the following authorities: Ontario Provincial Police, [Unreported, Abramsky, August 31, 2018]; Ontario Ministry of Housing, [1994] O.L.A.A. No. 19 (Stewart); Lilly Industries Inc., [2000] O.L.A.A. No. 91 (Dumoulin); Maritime Paper Products, [Unreported, Richardson, September 7, 2018]; Good Humour – Breyers, [2008] O.L.A.A. No. 79 (Trachuk); Mistahia Health Region (Alta.), [1998] A.G.A.A. No. 87 (Moreu); Wm. Scott & Co., [1976] B.C.L.R.B.D. No. 98 (Weiler); Dashwood Industries Ltd., [1998] O.L.A.A. No. 430 (Rose); Good Humour-Breyers, [2005] O.L.A.A. No. 173 (Kirkwood); Labatt’s Ontario Breweries, [1990] O.L.A.A. No. 60 (Brandt).

 

Conclusions and Decision
[58] The grievor was terminated for two reasons. First, the most important allegation was that the grievor had been absent without leave and not sick for the period from September 3 to September 9, the date of his termination. Second, the employer alleged that he insubordinately failed to provide medical evidence when requested by his managers.

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Allegation 1 – Was the Grievor sick?
A – Impact of the Medical Evidence
[59] The question as to whether the grievor was legitimately sick from September 3 to 9, 20019 is an issue that turns on medical evidence. Dr. Toppin saw the grievor on September 10, the day after his termination, and diagnosed the grievor was suffering from adjustment disorder with anxiety. Raison observed similar symptoms during her session with the grievor on September 2. In addition to their testimony, the medical evidence included Dr. Toppin’s and Raison’s reports, dated November 11 and September 19 respectively, their clinical notes and the relevant portions of the STD application and appeal. The employer urged that the combined evidence of Raison and Toppin should be given no weight, that both witnesses were unreliable, that their reports were questionable and that both were wrong in what they observed and the conclusions they reached.


[60] Raison was a social worker with more than thirty years of experience. She had previously counselled the grievor with respect to depression. The grievor contacted her office requesting an “emergency appointment.” Raison saw the grievor on September 2. He presented as “very tearful and overwhelmed” according to her clinical notes. She stated the grievor reported symptoms of lack of sleep, feeling overwhelmed and hopeless. She noted that she thought he might have been experiencing a “relapse of his depression symptoms.” Raison testified that, given what she observed on September 2,

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she thought the grievor was not capable of carrying out the complex professional duties associated with his position, and she advised him to see Dr. Toppin to find out whether he should take some time off work.


[61] Dr. Toppin had been the grievor’s family doctor for 30 years. He had treated the grievor during his prior episodes of depression. He testified that the appointment on September 10 was scheduled on an “urgent” basis. Dr. Toppin also testified that he observed many of the same symptoms that had caused Raison’s concerns. On September 10 he diagnosed the grievor with anxiety adjustment disorder, although on September 24 he changed the diagnosis to a major depressive disorder. I note that Mr. Mendl identified issues with the latter diagnosis but I do not need to rule on that aspect of the grievor’s medical history. The issue before me is the grievor’s medical condition from September 3 to September 9, and whether he was unable to work during that period due to illness. The illness identified on September 10 was adjustment disorder.


[62] The employer submitted that I should discount the medical evidence of both Raison and Dr. Toppin with respect to the grievor’s state of health from September 3 to 9. Both witnesses testified that they did not believe the grievor was capable of working, given the symptoms they observed. Thus, to reach the conclusion urged by the employer, I would have to conclude that both Raison and Dr. Toppin were taken in by the grievor, who was feigning symptoms, or they were both incompetent, or that they both gave unsubstantiated, false testimony and false assessments of the grievor’s condition.

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[63] I do not accept the employer’s submission that neither Raison nor Dr. Toppin provided useful medical evidence. It does not seem reasonable to conclude that two seasoned health care professionals were fooled by the grievor, who was only pretending to be ill. I note that the conclusions reached to by both Raison and Dr. Toppin were largely based on the grievor’s behaviour and how he presented himself, not on self-reporting. The facts are distinguishable from those in the TDSB decision, where a medical examination found no evidence of “any diagnosable psychological condition.” This was not a case of the grievor telling his medical advisors that he had flu symptoms several days prior but had since recovered. The grievor had a history of mental illness. Both medical professionals had been involved in the treatment of his previous mental illness. The symptoms observed by both Raison and Dr. Toppin included crying, shaking, slovenly appearance, difficulty “word finding”, being flustered and agitated, exhibiting a “hangdog” expression and so on. These collected symptoms could have been observed by someone with no medical training and still lead them to the reasonable conclusion that the grievor was not capable of performing his job, as alluded to by Arbitrator Trachuk in Good Humour. Raison and Dr. Toppin, were best placed to assess the genuineness of the grievor’s behaviour and to determine if he was faking or embellishing the symptoms, and neither indicated they detected any such dishonesty. It does not strike me as likely that the grievor would have been able to successfully feign such symptoms and do so in a manner that would have convinced Raison and Dr. Toppin, both of whom had known and



30

 

treated the grievor for some time and both of whom had many years of clinical experience.


[64] Similarly, I have not concluded that either Raison or Dr. Toppin gave false evidence or acted as unethical advocates for the grievor. Both were closely cross-examined by Mr. Mendl about their reports and their clinical notes. The employer was particularly critical of Dr. Toppin’s clinical notes. I agree that some of his notes were difficult to understand from the perspective of a non-medically trained layperson, and perhaps even for another doctor. However, I am satisfied that Dr. Toppin explained the contents of his notes and how those notes related to his diagnosis of adjustment disorder and, later, depression. The issue of the clarity of his notes is not a matter I have to rule on. What is important in this case is the nature and quality of Dr. Toppin’s testimony and his medical reports. In this regard, it matters that this was not the first time Dr. Toppin, or Raison treated the grievor for mental health issues, which increases the likelihood that they could more readily identify the signs of illness for this patient, a factor noted by Arbitrator Davis in City of Toronto. In my view, both Raison and Dr. Toppin provided coherent evidence about the grievor’s observed symptoms, how such symptoms related to past mental health problems, and how such symptoms compared to the grievor’s behaviour when not mentally ill. I expect that neither Raison nor Dr. Toppin found the cross-examination process to be an easy experience. However, both defended their observations and conclusions vigorously and, in my view, in a manner that was rational and persuasive – I did not reach the conclusion that either were acting as an advocate for the grievor or that

31

 

they tailored their testimony to benefit the grievor. I have concluded that the medical evidence provided by both Raison and Dr. Toppin about the grievor’s health between September 3 and September 9 was objective and relevant.

[65] The employer cited the decision in Spectra as authority for the proposition that GPs do not have the expertise or the training to diagnose mental illnesses. I do not agree with this general proposition, nor can it reflect the state of the law. GPs are not specialists in mental health – it requires additional training to become a psychiatrist. However, GPs are part of the mental health care system, in the same way that they are part of any other area of health care. GPs have the competence and authority to assess, diagnose and treat mental illness, including prescribing medication. GPs are usually the first place at which individuals seek help with mental illness and, as Dr. Toppin testified, the GP must be able to determine when it is necessary to refer a patient to a specialist, which is not different from any other kind of health complaint. I would not discount the opinion of a GP on a mental health issue solely because they are not psychiatrists, and I have not done so in this case. Similarly, Dr. Toppin’s evidence is not diminished by the fact that he did not refer the grievor to a psychiatrist.


[66] As mentioned previously, Mr. Mendl raised some issues about Dr. Toppin’s diagnosis of depression during the September 24 session in relation to the criteria for depression set out in the DSM-V. As stated above, the focus of this dispute was the state of the grievor’s health at the time of his termination, which Dr. Toppin diagnosed on

32

 

September 10 as adjustment disorder with anxiety. The question I must answer is whether the evidence shows that the grievor was likely suffering from an adjustment disorder with anxiety during the week leading up to his termination that was serious enough to prevent him from performing his job.


[67] In my view, the critique of Dr. Toppin’s later diagnosis of MDD does not affect his initial diagnosis of adjustment disorder. Adjustment disorders are diagnosable mental health conditions, and are described in the DSM-V as emotional or behavioural symptoms in response to an “identifiable stressor.” The definition of the diagnosis provides several examples of possible stressors, including “marked business difficulties” which would capture events involving the loss of or threat to one’s career. The DSM-V stipulates that adjustment disorders are characterized by marked distress as well as significant impairment in social, occupational, and other functioning. Dr. Toppin observed and identified the following symptoms exhibited by the grievor that are listed as symptoms of adjustment disorder: low mood, tearfulness, feelings of hopelessness, nervousness, worry and jitteriness. The doctor characterized the symptoms as “severe” in his report for the grievor’s application for STD, and he indicated it was his conclusion that the grievor should be on indefinite sick leave. This was not a case where the employee claimed they could not work due to “stress”, such as in TRW. Adjustment disorder is a recognized mental illness, and the medical evidence was consistent with the hallmarks of the illness set out in the DSM-V. I do not think it reasonable to conclude that the grievor could perform his normal duties as a union representative when in such state of health.

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[68] Given the clinical observations made by both Raison and Dr. Toppin, and given their evidence placing those observations in context of the grievor’s history of mental illness, I am not persuaded there is a basis to discount the conclusions of either health care professional. Even though the grievor’s sick leave declaration on August 28 was suspicious (a point I discuss in detail below), I have reached the conclusion that, at least by September 2, he was demonstrating objective indicators of a diagnosable mental illness, and that his behaviour was sufficiently serious to lead Raison to conclude that he should see his family doctor to get an opinion on whether he should report for work. Raison, as a social worker, could not and did not provide a medical diagnosis but her evidence was important in establishing when the grievor began exhibiting the symptoms that would lead to the diagnosis of adjustment disorder. Dr. Toppin made his assessment on September 10. By that time, the grievor had already been terminated. However, given that the symptoms Dr. Toppin observed on September 10 were like those observed by Raison on September 2, I find that the evidence is sufficient to conclude that the grievor’s mental health began to deteriorate at the latest by September 2, and that the diagnosed adjustment disorder would have prevented him from performing his duties as an OPSEU representative between September 3 and September 9.

 

B – Impact of Insurance Carrier Rejection of STD Claim
[69] The employer relied on the findings of the insurance carrier, SSQ, to support the assertion that the medical evidence did not demonstrate that the grievor was medically

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unfit to work. The evidence of Giles was that the employer had a practice of following the medical decisions of the insurance carrier, even in cases where they may not necessarily agree with the carrier’s opinions.


[70] The insurance carrier initially rejected the grievor’s claim for STD on the basis that he was not “totally disabled” and that he had not seen a doctor for his illness before his coverage was ended by his termination on September 9. These conclusions were set out in the letter rejecting the grievor’s claim dated October 25, 2019. The key finding of SSQ in this letter was as follows:
While we recognize you may have some difficulties and associated symptoms, the medical evidence does not confirm that you have experienced a level of impairment that has restricted you from performing your job duties as a Staff Representative.

[71] The employer relied on the decision in Caledon for the proposition that a conclusion contrary to that of the insurance carrier, whose task it is to review STD applications, must be based on “clear and cogent” evidence, and that otherwise it is reasonable for the employer to rely on the carrier. However, Caledon was a case about eligibility for sick benefits, not about the termination of an employee. Giles explained why the employer follows the decisions of the insurer with respect to the assessment of sick leave claims, and that explanation makes sense and was consistent with the reasons outlined by Arbitrator MacDowell in Caledon. However, an arbitrator’s decision with respect to just cause for discipline is based on evidence weighed on the balance of probabilities. The quality of such evidence is not coloured by administrative

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considerations, but by the impact the evidence has on the factual issues in dispute. For this reason, I do not think it would be helpful to apply the reasoning in Caledon to a termination case.


[72] Secondly, even were I to apply the same standard, MacDowell’s point was predicated on the condition that the insurer’s decision should stand so long as it was within a range of reasonable conclusions. I do not believe that it is prima facie reasonable to conclude that a person suffering from adjustment disorder can carry out the duties of a union representative. Thus, some explanation from SSQ as to why they thought the grievor was able to work would have been necessary. It is not possible to assess the reasonableness or medical relevance of the SSQ rejection of the grievor’s claim in this matter because no reasons were provided. The passage excerpted above set out SSQ’s decision. The first part is a statement of sympathy or compassion. There is nothing wrong with that, but it contains no medical analysis. The rest of the passage says no more than that the medical evidence did not meet the carrier’s standard, which is the same as saying you did not qualify for benefits because you did not qualify for benefits. Dr. Toppin’s medical evidence was that the grievor had “severe” symptoms of adjustment disorder and needed time off work. The insurer’s statement added no meaningful response to the medical evidence and it cannot be considered as an alternative medical analysis. The conclusion reached by SSQ was, in essence, that they did not agree with Dr. Toppin’s conclusions, but the disagreement was not explained and there was no analysis of the



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medical information they had been provided. Some reasoning is required if the carrier’s conclusion is to be given weight beyond a bare statement of ineligibility.


[73] It is reasonable to assume from SSQ’s later appeal decision that the primary reason the grievor was denied benefits was the fact that he did not see his doctor before he was fired. By September 10 it was too late because his benefit coverage had terminated at the moment he lost his job. This was mentioned in the initial rejection letter but was made clearer in SSQ’s reasons for the rejection of the grievor’s appeal, dated April 21, 2020. In the appeal decision the carrier stated that benefit payments commenced on the date the employee is under the care of a doctor, adding:
As your disability coverage terminated on September 9, 2019 you were not eligible for STD benefits prior to the date you first were seen by a licensed doctor, September 10, 2019.

In other words, SSQ rejected the appeal because the grievor had been terminated on September 9 prior to seeking treatment from a licensed doctor. As was the case with the first letter rejecting the STD application, there was nothing substantive in the SSQ appeal decision that can be viewed as medical evidence or analysis that should impact my evaluation of the evidence of Dr. Toppin or Raison. When the initial rejection and the appeal decisions from SSQ are read together, I can find no reasoning or critique of the medical evidence. As a result, there is no evidence available that would allow me to assess the reasonableness of SSQ’s rejection of the medical evidence. The only medical evidence in this case is that provided by Raison and Dr. Toppin, as outlined above.


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Allegation 2 – Insubordination re Requested Medical Note
A – Background to the Dispute
[74] The background for the events that led to the grievor’s termination was that he was advised that he would be working with an OPSEU member as part of Member Development Training (MDT), an OPSEU program to train union activists as OPSEU Representatives. The grievor testified that he had had a previous negative experience with the member in question, but the experience was based on hearsay and for that reason I will identify the member as X. The grievor stated he had been advised that some OPSEU members had voiced criticisms of him in a discussion with X, and that X had said to them: “If he [the grievor] is giving you a hard time, I will take it up with the Board of Directors of OPSEU and get him straightened out.” The grievor was not present for this alleged exchange. He was told about X’s alleged comment by someone else, and no evidence was led about the truth of the statement attributed to X. Nevertheless, the grievor believed the incident to be true. He spoke to Boyer about his concerns and advised that he would not work with X as part of the MDT and would instead exercise his rights under the Occupational Health and Safety Act (OHSA) to declare a work refusal.

 

B – The Buyout ‘Discussion’
[75] The employer’s response to the grievor’s concerns about the MDT assignment was a clear sign that the employment relationship was not healthy. Boyer spoke to the grievor on August 28 and advised him that he had raised the MDT matter with senior managers

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at OPSEU and that they had a negative reaction to the grievor’s concerns. Boyer then formally raised the question of whether the grievor would be interested leaving OPSEU with a buyout package. Boyer wrote later that he made this suggestion because the grievor had previously stated that he would be interested in a buyout. The grievor testified that his previous comments were taken out of context. Be that as it may, it is significant that the employer, not the grievor, raised the possibility of a buyout.


[76] The grievor responded to the buyout suggestion by telling Boyer that he would need some time to consider his position and to confer with his spouse and advisors. He told Boyer that he would take the rest of the week off to consider the matter, and that he would take sick leave starting on September 3, the Tuesday after the long weekend. Although it appears it was not clear to Boyer what credits the grievor would use for August 28 through 30, there is no dispute that those days were taken as one personal day and two compensating days. The employer considered the grievor to be absent without leave on the first working day after the long weekend, September 3.


The grievor responded to the question of a buyout package in an email to Boyer on Friday, August 30, with an offer to leave his position in exchange for two years of salary continuance including benefit coverage. Boyer responded within half an hour, stating that the grievor’s offer was “not even in the ballpark” and that they would discuss the grievor’s outstanding grievances after the long weekend. The employer made no counter-offer. Boyer’s response appeared to indicate the employer was no longer interested in

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discussing the buyout option, and that the grievor was expected to report for work the following Tuesday. Anyone who has performed the job would understand that a union representative could not work effectively in an environment where they know that the leadership of the union may not be there to back them up when needed. In my view, it was not reasonable for the employer to open the door to a buyout and then slam it shut and expect that the grievor could return to “business as usual” the next day. I cannot say whether this was a bargaining strategy or an expression of frustration, but it was a decision that had a major impact on what followed.

 

C – Grievor’s Actions After Buyout Raised
[77] It was reasonable in the circumstances for the grievor to conclude that he had lost the confidence of his employer. It was clear that the employment relationship was in trouble, both from the fact that Boyer had raised the possibility of a buyout and by the dismissive and somewhat contemptuous response to the grievor’s proposal. The grievor testified that he considered his work at OPSEU to be over. He took steps to follow through with that conclusion. He cleared all appointments from his calendar for the month of September. On Saturday, August 31 he made two trips from his home to the Thunder Bay office to collect his personal effects and return the employer’s property. The grievor agreed that, as of August 28, he no longer performed any work for the employer, other than the work of disengaging from his assignments. But he did not tender his resignation and, although the employer had given a strong indication of non-confidence in him, the grievor had not been formally terminated.

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[78] The employer suggested that the grievor’s decision to separate himself from his job duties was part of a scheme to pressure the employer to make a buyout offer, and that the grievor hoped that his absence would force the employer’s hand. The employer also asserted that the grievor believed that he would be successful in an application for STD commenced on September 3, and that he would be well placed to ‘wait it out.’


[79] It is possible the grievor was, as the employer asserted, engaged in some sort of scheme designed to pressure the employer but the self-defeating nature of his decisions argues against such a conclusion or at least suggests that his scheme was incoherent and illogical. It is difficult to accept that the grievor, an individual with considerable experience as a union representative, would take steps to deliberately force his own termination. Such a move would mean he would be without any income and forced to fight for compensation. He had applied for STD, which offered his best chance for income security, but termination could, and did, put his application for sick benefits at risk. If his decision to disengage was a plan, it was not a part of a plan that brought him any obvious benefits. The actions the grievor took to separate himself from the workplace were not rational and did not advance his interests.

 

D – Did Employer have Reasonable Grounds to Suspect Abuse of Sick Leave?
[80] The grievor did not report for work on September 3. The employer sent a total of three emails to the grievor requesting confirmation of sickness, the first one sent by Boyer

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on September 3; the second one also from Boyer sent on September 4 with a deadline for providing the sick note of September 5 at 4 p.m.; and the third from Suddaby on September 6 with a deadline of that same day at 7 p.m.


[81] There was an issue between the parties as to whether the employer had the right to make the requests for sick notes given Article 23.020.02. However, at the hearing both parties agreed that, despite Article 23.02.02, the employer had the right to request a medical note prior to five days absence where there were reasonable grounds to suspect abuse of sick leave, as set out in the decision in Salvation Army and the long line of cases following therefrom. The question, therefore, is whether the employer had such reasonable grounds for suspicion?


[82] The documentation from Boyer seems to suggest that he was uncertain after the conversation on August 28 what the grievor was doing, but the grievor agreed in cross- examination that he had told Boyer on August 28 that he would be off sick on the following Tuesday, September 3. As Giles pointed out this was, to say the least, an unusual assertion to make before seeking medical advice unless one is expecting to be absent for scheduled surgery or some other medical procedure. Indeed, as Giles as testified, in the case of mental illness it is hard to predict how one might feel from one day to the next. The fact that the grievor claimed almost one week prior that he would be sick on September 3 was not consistent with the normal process of the onset of illness. In addition, the comments were made in the context of the failed buyout discussion.

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[83] It was reasonable for the employer to assume that the assertion of sick leave was not related to bona fide illness but was related to the buyout process. I have concluded that the assertion of the illness in advance and in this context gave rise to reasonable grounds for the employer to suspect the validity of the grievor’s claim for sick leave. For this reason, the employer’s decision to request medical confirmation of illness was related to a reasonable suspicion of sick leave abuse and was not limited by the normal sick leave procedures set out in Article 23.02.02.

 

E – Grievor’s Response to Boyer on September 3
[84] There is no dispute that the grievor read Boyer’s September 3 email requesting medical documentation to cover his absence from work. In the email, Boyer did not stipulate a deadline, asking only that the information be provided at the grievor’s “earliest convenience.” The grievor testified that he knew at the time that, even if he disagreed, the email put him in an “obey now, grieve later” situation and that he intended to follow through. Although the grievor stated he intended to comply with Boyer’s September 3 directive, he did not express that intention to Boyer at the time. The email exchange between the two on September 3 started when the grievor sent Boyer an email asking that STD application forms to be sent to his personal email address. That prompted an email exchange that can be summarized as follows:
Boyer: Have you provided HO with a doctor’s note or an indication of a time
frame regarding your expected sick leave?


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Grievor : I have not but I have not passed the threshold at this point. …
Boyer: The Employer requires you to provide a sick note from a medical practitioner from your first day off sick at your earliest convenience.
Grievor: This is contrary to Article 23.02.02 and as such please be advised of
my intent to grieve.

What is significant here is what the grievor did not say. The grievor did not say that he had seen Raison the day before, and that she had advised him to make an appointment with Dr. Toppin on an urgent basis. He could have advised Boyer he was going to make an appointment with Dr. Toppin. He could have let Boyer know about the September 10 appointment with Dr. Toppin after it was scheduled on September 4. These were all pieces of information that were relevant to the medical note demand. The grievor did not share any of this information with Boyer. Had he disclosed the information, at worst Boyer might have insisted the grievor attend a clinic immediately. Given the grievor’s claim that he knew he was in a situation where he had to ‘obey now and grieve later’, such an outcome would have been a minor but not unexpected inconvenience. The grievor’s explanation for his silence was puzzling. During cross-examination he said “it was understood” he would comply because his supervisor had made the request. This struck me as more of a rationalization than an explanation. The grievor’s response to Boyer on September 3 did not imply any compliance. It was clear that there was not a good working relationship between the two men, so clarity of communication was important. There was nothing about the grievor’s efforts to see his doctor that would have been difficult or stressful to explain or that might have provoked any greater conflict


44

 

with Boyer. Indeed, assuring Boyer that he was taking steps to get medical information, while reserving his right to grieve, would have helped to reduce tension between the two.

[85] I accept that the grievor was sick and was likely in a poor mental state at the time. However, he recognized the importance of providing medical evidence to support his STD application. This implies that the grievor was capable of responding more fully to Boyer on September 3 and September 4 and to Suddaby on September 6 but, for reasons of his own, he did not. He might have maintained his silence out of anger or for some other reason, but whatever his motivation, his decision to do so played a significant role in this dispute.

 

F – Did the Employer Properly Communicate the Deadlines?
[86] The secondary reason why the grievor was terminated was for insubordination for refusing to provide medical documentation when requested. The two ‘deadline’ emails, sent by Boyer on September 4 and by Suddaby on September 5, were emailed to the grievor’s home email address. As stated above, the employer had a right to request medical documentation, and that would include the right to attach reasonable deadlines for providing such information. There was an issue between the parties as to whether those deadlines were communicated to the grievor. The grievor stated he did not read either email until after he was terminated. The employer argued it was highly unlikely the grievor did not read the emails, and it was more likely that he chose to ignore them.



45

 

[87] It seems likely that the grievor received the emails in question. He received and responded to other emails with the employer before and after the warning emails were sent. He responded on September 3 to the first email in which Boyer requested the medical documentation at the grievor’s “earliest convenience.” He also received and responded to emails related to his application for STD, including on September 6. It seems unlikely that he would have failed to receive these two specific emails. Thus, I accept the employer’s submission that the grievor likely received the emails of September 4 and September 6.


[88] However, I am not persuaded that the employer has been able to demonstrate that the grievor read and ignored the two emails. Insubordination requires proof that an employee willfully disobeyed an order, and there must be evidence of a clearly communicated order. In this case, the evidence of communication is not clear.


[89] The employer was aware that the grievor had initiated the process to apply for STD coverage, which meant the employer was aware that there was the possibility that the grievor had a valid medical condition that prevented him from working. Even though the grievor’s pre-announced sick leave was suspicious, the employer could not be sure of the grievor’s fitness to work until after seeing medical reports. One of the key factors in this case is that the employer moved so rapidly to termination. In addition to the fact that the employer could not be certain that the grievor had received the two ‘deadline’ emails, and they could not be sure whether he was healthy enough to work, the period

46

 

from the first request for medical information to the grievor’s termination was just six days, September 3 to September 9. Compare that to the efforts employer made prior to terminating an employee, as set out in the jurisprudence. In Aviscar, the grievor went off work on August 7. After some weeks, the employer made several unsuccessful attempts to reach him by phone and then, in October, sent him a registered letter. The grievor refused delivery of the letter and did not respond to Canada Post notices to pick up the letter at a local post office for several weeks. In Calgary Co-op, there were similar facts to the instant dispute, in that the grievor in that case was off work for up to 6 weeks with depression. He asked his employer for a buyout. After the six-week period, the employer made multiple attempts to contact the grievor, both directly and through the union, over a period of several weeks. Similarly, multiple attempts to communicate over extended periods can be seen in the Canada Post, Canadian Regional Airlines and Cape Breton decisions. The question of what efforts are required in cases such as the one before me must be answered in context of the specific facts, but it was clear in this case the employer moved very quickly to terminate the grievor’s employment. Added to these considerations is the fact that the employer should have known that a union representative, even one without a history of mental illness, would have faced considerable difficulty returning to work in the circumstances. It may well be that a broader context for this troubled employment relationship has been lost because Boyer was not able to testify, but I note there was no history of discipline against the grievor. Regardless, there is no question but that the employer moved with some haste to terminate the grievor’s employment. It was not reasonable for the employer to move to

47

 

terminate the grievor’s employment so quickly without making greater efforts to first ensure he had received the warning emails and secondly to clarify his medical status.


[90] The grievor’s actions after he discovered he was terminated are difficult to understand. Upon being told by his local president that he had been terminated he should have immediately understood that the employer had acted under the misapprehension that he was not gathering the requested medical documentation. The obvious reaction should have been to contact the employer immediately and advise that he had an appointment with is doctor scheduled for the next day, that he had already been assessed by Raison, that he had not seen the deadline emails – in other words he should have provided the same explanation to the employer at the time that he provided during his testimony. Given that he asserts the OPSSU president advised him of the termination letter, he did not even have to take these steps on his own. He could have given his union president the information and asked her to communicate with OPSEU management in an to attempt to reverse the termination. Surprisingly, the grievor took no steps to get an immediate medical report and did not ask Dr. Toppin for a medical note on September 10, the day after his termination. He testified that he did not because he had already been discharged by then, so there was “no point.” Obviously, there was a point. In the end, the employer was not provided with any medical documentation about the grievor’s health until shortly before the commencement of the hearings in this matter.

 



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[91] The failure of the grievor to provide the employer with medical documentation remains an issue to be addressed. As Arbitrator Luborsky pointed out in TDSB, there is an important contractual expectation that employees should provide medical confirmation of illness, and that failure to do so can lead to loss of sick pay and, eventually, termination of employment. However, while I consider it important that the grievor withheld medical information, most of that happened after he was terminated. Arguably he withheld information from Boyer on September 3 about steps he was taking to see his doctor, but that was not a decision that should attract serious discipline. Otherwise, the grievor’s withholding of information took place after he was terminated. Although the withholding of medication information should not be considered a disciplinary matter, it was significant that the grievor’s mental health did not prevent him from arranging to provide SSQ with the necessary documentation to process his claim for STD. From this I have concluded as a fact that the grievor understood, despite his illness, that medical information had to be provided to others if he wanted them to consider it in assessing his rights. The grievor’s explanation that he did not provide the employer with any medical information after termination because it was “too late” was not sufficient. The employer did not have the chance to reconsider the termination based on timely medical reports, which would have included reports that could have been provided soon after termination. These are aggravating factors to be weighed in calculating compensation owed to the grievor.

 



49

 


Resolution of Grievances
1. Grievance re OHSA – 2019-48
[92] This grievance alleges a breach of the Occupational Health and Safety Act in relation to the employer’s response to the grievor’s concerns about the assignment related to the MDT.


[93] There is no evidence to support a conclusion that the employer breached the OHSA. The MDT training situation had not materialized by the time the grievor was terminated and there were no steps the employer could or should have taken to address a work refusal regarding an anticipated future unsafe situation, other than what it did, which was to indicate its willingness to meet the grievor to discuss the matter. The last communication on the subject was in Boyer’s August 30 email to the grievor, indicating they could discuss the matter in greater detail after the Labour Day long weekend. The grievor was terminated before that meeting took place. Grievance 2019-48 is dismissed.

 

2. Grievance re Sick Note – 2019-49
[94] This grievance alleged that the employer improperly requested a sick note prior to the five-day period in Article 23.02.02. It was my understanding that the union had conceded this grievance during the hearing. Regardless, as explained above, the employer had the right to request the sick note in the circumstances in accordance with the long line of cases following Salvation Army. Grievance 2019-49 is dismissed.



50

 


3. Grievance re Discrimination for Union Activity – 2019-50
[95] This grievance alleged that the employer: “reprised against me and acted in a discriminatory fashion as a result of my Union membership.” The evidence did not support any such finding with respect to union discrimination. The grievor had difficulties with Boyer, but there was no evidence to connect those difficulties with the grievor’s membership or participation in his union. Grievance 2019-50 is dismissed.

 

4. Grievance re Discrimination related to Disability – 2019-51
[96] This grievance raised issues of discrimination related to the employer’s alleged failure to accommodate the grievor’s disability, as well as his complaint with respect to a toxic work environment. The employer’s decision to terminate the grievor was to a large extent triggered by the grievor’s failure to communicate at the time that he intented to provide the medical information requested. Moreover, the grievor did not provide the employer with any medical information until shortly before the arbitration hearing. There is no basis for concluding that the employer did not accommodate the grievor’s medical condition. Grievance 2019-51 is also dismissed.

 

5. Grievance re Termination – 2019-47
[97] The employer had the right to request medical information from the grievor outside of Article 23.02.02 because the grievor’s advance declaration of sickness gave rise to a reasonable suspicion of abuse of sick leave. However, I find that the evidence does not support the conclusion that the grievor was absent without leave, given that he was,

51

 

in fact, sick and unable to perform his regular duties from September 3 to 9. The grievor’s illness was real and serious. Even during the hearing, it was evident he found it emotionally difficult to talk about the issues in dispute.


[98] I find that it is likely that the grievor received the two ‘deadline’ emails, in the sense that they were in the grievor’s inbox in his email application, but the employer has not demonstrated that the grievor read and ignored those instructions. The grievor might have seen but avoided the emails out of anger or anxiety, he might not have noticed them, or he might have read them and decided to ignore them. Any of these is possible but none has been demonstrated to be more likely than the other. Insubordination requires a clearly communicated order. The evidence of communication in this case was not clear enough to support a finding of insubordination as just cause for discipline.


[99] The employer argued in the alternative that the employment relationship has been irredeemably damaged, and I agree. Although Mr. Boyer has since passed away, the message of non-confidence he communicated to the grievor was described as a joint opinion of OPSEU management. The grievor also took steps to terminate his working relationship with OPSEU. It is fair to say OPSEU did not want the grievor to continue working as a union representative and the grievor did not want to continue working for OPSEU. It did not help matters that, after his termination, the grievor published a harshly critical opinion online about Boyer shortly after the latter’s death. In addition, the trust necessary for the employment relationship has been further undermined by the grievor’s

52

 

unexplained failure to provide medical evidence until the onset of the arbitration process. The arbitration hearing has not brought to light any softening of attitude on either side. I agree with the employer’s submission that there is no reasonable prospect that the employment relationship can be renewed.

Summary Conclusion
[100] The employer has not proven just cause for discipline, and the termination is rescinded. There is no reasonable prospect of re-establishing the employment relationship, and I decline to order the grievor to be reinstated to employment with OPSEU. The grievor is entitled to compensation in lieu of reinstatement. I refer the issue of the quantum of compensation back to the parties for discussion and resolution if possible. The grievor’s decision to withhold medical information is an unusual factor in this case that should feature in the calculation of the remedy, along with the usual considerations. The parties have until December 23, 2021 to reach a settlement. If no agreement is reached by that date, either party may contact me to request the reconvening of the hearing to resolve the issue of compensation and any other outstanding issue related to the implementation of this award.

 

 

________________________
Barry Stephens, Arbitrator December 07, 2021

 


OPSSU Executive Committee 2021-2023

President – Lois Boggs, president@opssu.ca, 905-978-3147

1st Vice President – Cheryl Wing, 1stvicepresident@opssu.ca

2nd Vice President – Alison Nielsen-Jones, 2ndvicepresident@opssu.ca

Chief Steward – Tim Mulhall, chiefsteward@opssu.ca, 705-790-3104

Secretary – Lorri Foley, secretary@opssu.ca

Treasurer – Jean-Philippe Maher, treasurer@opssu.ca

Membership Secretary – Alyssa Walker, membershipsecretary@opssu.ca

Steward at Large – Ceceil Beckford

Steward at Large – Hasnain Abid

 


Q and A questions

President

The following are the unedited questions submitted for presidential candidates:

  • Do you support excluding members serving in acting positions?
  • Have you ever secretly gathered evidence against a member of your own union, and provided that evidence to the employer? If yes, please describe the circumstances and explain why you did this.
  • If elected, what will be your strategy to resolve OPSSU’s ULPs?
  • Recently our employer waived posting and testing provisions. This was done without the endorsement of our union and with the “name” of equity. However, the equity committee was not consulted either. If this situation was to happen again, and you were to be elected President what steps would you have taken to address this situation? Be specific.”
  • What is the position regarding the sustainability of our Union as our employer continues to allegedly violate and erode our collective agreement. What is your position regarding the membership’s desire (or lack of) regarding a possible Union merger?
  • our employer has refused to meet at EERC for over 3 years. in addition; the mediation attempts under Med/Arb Gerry Lee were not successful. If the employer continues to refuse to meet at EERC AND engage in positive relations (or any labour relations at all), how would you handle it and what steps would you take? Please be specific and to the point.”
  • what do you think is the biggest barrier Racialized employees encounter today and how would you address this with our employer?
  • it has become evident to me that tokenism, sexism, nepotism, etc. Have become the norm in this corporation. What would you do to address this with our employer and provide at least 2 examples of how this can be remedied?
  • What is your past involvement with SSU and how will that inform your work in the future?
  • What will be your approach to the outstanding grievances?
  • What are your goals for SSU?
  • We have had several Duty of fair representation charges filed against our union over the past year. How do you plan to address the clear dissatisfactions from our members in terms of how they feel they are being represented?’
  • What positions have you held in OPSSU and how did they prepare you to lead it? If you have not held a position in OPSSU before, why not?
  • Do you intend to work out of the OPSSU office at head office once we return to the workplace?
  • Can you give an example of how you have shown your solidarity with OPSSU members in the past?
  • The President of OPSSU is booked off full-time from their OPSEU position- what do you see the daily work of the President being?
  • In 2016 under a different executive, OPSSU filed a ULP because OPSEU fired the bargaining team chair, that ULP was settled. After it was settled, OPSEU suspended five SSU members from the IT unit, and fired three SSU leaders. Again we filed a ULP complaint against OPSEU that was settled. Both times the parties committed to working better together afterwards. We all hoped when a new executive was elected in 2017 that they would be able to work with OPSEU. However, OPSEU is still targeting and terminating OPSSU leaders. Do you think it was the right move strategically to settle those ULPs, and should we really expect a change in treatment if we settle a third ULP or should we hold the line now?
  • Would you consider changing our legal counsel in the midst of ongoing grievances & ULPs? If so, why or why not?
  • How do you intend to work with the elected leadership of SSU, such as committee chairs?
  • Are there any priority items you seek to address with the assistance of SSU committees? If so, what are they?
  • There are increasing demands to work from home for pro-tech staff. We have proven our ability to meet the needs of the members fully while being 100% remote. There are other important reasons that justify a continuing ability to work from home such as: we are still in a pandemic, increased wellness and balance with the ability to reduce commute time, increase focus and quiet time, increased staff retention etc. Many employers have introduced a three day return to office in order to reduce high traffic in offices. Even prior to the pandemic many employers had a one-day standing work at home day (if not more). How does the candidate, if elected, intend to address this issue?
  • How do you intend to work with the leadership of SSU, such as Committee Chairs?
  • If elected how do you intent to address our pension shortfall and staff vacancies?
  • How do you correct the issue that we are spending more money in legal fees then we are taking in on dues while having 2 full time book offs. Is there a point to having book off positions if there work is farmed out?
  • How are you going to repair labour relations between OPSSU and OPSEU?
  • After Multiple DFR’s filed against our union, how do you address the dissatisfaction from our members on how they are being represented?
  • What is your position on members who willfully share information with the employer that harms another member or multiple members, and have you ever done this?
  • When the employer refuses to meet for an EERC meeting, how will you force them to respond and meet with the union?
  • I have heard accusations of dropping grievances against board members and sectors. This is not enough information for me to form an opinion. Can you please explain this, and tell me what should have been done differently?
  • Since being a member of SSU (whether temp or perm), have you ever provided information/documentation to the employer about another member of SSU that could have or did result in disciplinary action? Why or why not?
  • Please explain your position on the ULP’s, and if elected how you plan to move them forward?
  • Please explain all positions you have held on any LEC, and your past experience representing members of your local (this excludes representation done for work purposes).
  • In your view, why do members pay union dues?
  • What did you do prior to working for OPSEU?
  • Since being a member of SSU (whether temp or perm), have you ever provided information/documentation to the employer about another member of SSU that could have or did result in disciplinary action? Why or why not?
  • Please explain your position on the ULP’s, and if elected how you plan to move them forward?
  • Please explain all positions you have held on any LEC, and your past experience representing members of your local (this excludes representation done for work purposes).
  • In your view, why do members pay union dues?
  • What did you do prior to working for OPSEU?
  • Since being a member of SSU (whether temp or perm), have you ever provided information/documentation to the employer about another member of SSU that could have or did result in disciplinary action? Why or why not?
  • Please explain your position on the ULP’s, and if elected how you plan to move them forward?
  • Please explain all positions you have held on any LEC, and your past experience representing members of your local (this excludes representation done for work purposes).
  • In your view, why do members pay union dues?
  • What did you do prior to working for OPSEU?
  • Since being a member of SSU (whether temp or perm), have you ever provided information/documentation to the employer about another member of SSU that could have or did result in disciplinary action? Why or why not?
  • Please explain your position on the ULP’s, and if elected how you plan to move them forward?
  • Please explain all positions you have held on any LEC, and your past experience representing members of your local (this excludes representation done for work purposes).
  • In your view, why do members pay union dues?
  • What did you do prior to working for OPSEU?
  • Do you think stewards or other elected members of the executive who are trained to do so should be handling some of our arbitations?
  • How concerned are you about our finances?
  • How do you plan to move the parties back to a functioning relationship?
  • Do you agree that there are barriers in our processess for members to be involved, and if so, what will you do about that?

Treasurer

The following are the unedited questions submitted for treasurer candidates:

  • The financial health of the union has been an ongoing subject at GMMs, do you have a plan or strategy to ensure the short-term financial health of the union?
  • The financial health of the union has been an ongoing subject at GMMs, do you have a plan or strategy to ensure the long-term financial health of the union?
  • Do you have any backgrounds that are applicable to the role of treasurer? If so, what are those backgrounds?
  • Have you served in any other leadership capacity in this union, or another bargaining unit? How has that prepared you for this role?
  • Why do you want the position of treasurer?
  • You will have voice and vote on the Executive Committee as it relates to matters unrelated to treasurer tasks.  What can you bring to these discussions and how do you plan to use your voice and vote to represent the membership?
  • If elected how do you intend to address the staff pension shortfall and staff vacancies?
  • We have seen some cost savings by holding virtual meetings due to the pandemic. Should we be able to resume in person meetings in 2022, what is your plan for ensuring that OPSSU does not incur a deficit of funds?
  • A prior Treasurer recommended changing our policies to reduce some of the expenses that the Union reimburses to members/retirees in order to reduce costs. Do you agree or disagree with that strategy?

OPSSU Constitution, Dec 2021

OPSSU Constitution, Dec 2021 PDF version here

 

 

 

 

 

Ontario Public Service Staff Union

 

 

CONSTITUTION

and

POLICIES

 

 

 

 

 

ARTICLE 1 – NAME 3

ARTICLE 2 – OBJECTIVES 3

ARTICLE 3 – MEMBERSHIP RIGHTS AND DUTIES 3

ARTICLE 4 – DUES AND ASSESSMENTS 4

ARTICLE 5 – FUNDS 5

ARTICLE 6 – ELECTION PROCEDURES 6

ARTICLE 7 – EXECUTIVE COMMITTEE 8

ARTICLE 8 – TRUSTEES 10

ARTICLE 9 – SHOP STEWARDS 11

ARTICLE 10 – SHOP STEWARDS: DUTIES AND RESPONSIBILITIES 11

ARTICLE 11 – GRIEVANCE COMMITTEE 12

ARTICLE 12 – NEGOTIATING COMMITTEE 12

ARTICLE 13 – EMPLOYEE / EMPLOYER RELATIONS COMMITTEE 13

ARTICLE 14 – POWER OF ADMINISTRATION 13

ARTICLE 15 – MEETINGS 14

ARTICLE 16 – STANDING COMMITTEES 14

ARTICLE 17 – VIOLATION OF CONSTITUTION 15

ARTICLE 18 – AMENDMENTS TO THE CONSTITUTION 15

ARTICLE 19 – AMENDMENTS TO THE POLICIES AND PROCEDURES 16

ARTICLE 20 – MERGER OR AFFILIATION 16

APPENDIX 1: OPSSU NEGOTIATION / RATIFICATION PROCEDURES 18

APPENDIX 2: OPSSU STRIKE POLICY 21

OPSSU POLICIES AND PROCEDURES 26

OPSSU GRIEVANCE PROCEDURES 27

EMPLOYEE/EMPLOYER RELATIONS COMMITTEE 30

Terms of Reference: EMPLOYER-EMPLOYEE RELATIONS COMMITTEE 32

Terms of Reference: BENEFITS COMMITTEE 32

Terms of Reference: CENTRAL JOINT HEALTH & SAFETY COMMITTEE 34

Terms of Reference: PENSION TRUST / SEVERANCE COMMITTEE 35

Terms of Reference: CONSTITUTION COMMITTEE 36

Terms of Reference: COMMUNICATIONS COMMITTEE 37

Terms of Reference: JOINT ACCOMMODATION COMMITTEE 38

Terms of Reference: PAY EQUITY MAINTENANCE COMMITTEE 39

Terms of Reference: SOCIAL AND RECREATION COMMITTEE 41

Terms of Reference: EDUCATION COMMITTEE 42

Terms of Reference: EXECUTIVE APPEALS COMMITTEE 42

Terms of Reference: OPSSU MEMORIAL SCHOLARSHIP COMMITTEE 43

Terms of Reference: OPSSU HARDSHIP COMMITTEE 44

Terms of Reference: OPSSU RETIREES GROUP 44

Terms of Reference: THE EMPLOYMENT EQUITY/ HUMAN RIGHTS COMMITTEE 47

GENERAL POLICIES AND PROCEDURES 49

Advances: 49

Allowable Expenses – Members 49

Accommodation: 49

Attendant Care: 50

Child/Elder/Dependent Care: 50

Children’s Meals: 50

Telephone: 50

Travel: 50

Room Service: 51

MISCELLANEOUS POLICIES 51

Negotiating Team 51

Defence Fund 51

Credit Card 51

Delegates to Conventions 52

Dues and Assessments 52

Grievance Committee Matters 52

Honorariums 52

Investments 52

MDTs and Temporary Staff 53

Member Attendance at Executive Committee Meetings 53

Minutes of Meetings 53

Performance Evaluations 53

Retiree Appreciation 53

Retirement and Severance Gifts 53

Spending Authorities 53

Tentative Settlements 54

Time Off Requests 54

Union’s Equipment 54

Payment of Wages for Unscheduled Days 54

Official Communications 54

POLICY FOR DEFENDING, RECOGNIZING AND CONFRONTING SEXUAL HARASSMENT IN THE WORKPLACE 55




ARTICLE 1 – NAME

 

    1. The union shall be known as the Ontario Public Service Staff Union.

 

    1. The use of this name without the expressed sanction of the Union, by members or others, is prohibited.

 

1.3 Every communication emanating from this Union shall be clearly identified and any unauthorized use or distribution of matter infringing such identification shall be subject to sanction by the Union as provided for in this Constitution.

 

ARTICLE 2 – OBJECTIVES

 

    1. The objectives of this Union are to establish and maintain mutually satisfactory labour relations between the employer and the employees.

 

    1. To establish and maintain the best possible conditions of employment, hours of work, wages, and all other matters pertaining to the welfare of the Union and its members.

    2. To provide for the prompt, orderly and equitable disposition of grievances and/or complaints.

    3. To engage in legislative, political, educational, civic, welfare and other activities which further, directly or indirectly, the joint interests of the membership of this Union and the labour movement in the improvement of general economic and social conditions in Ontario and Canada.

 

ARTICLE 3 – MEMBERSHIP RIGHTS AND DUTIES

 

  1. Membership in this Union shall be open to all individuals employed within this bargaining unit as per the “closed shop” provisions of the collective agreement. OPSSU shall be the exclusive representative for the purpose of collective bargaining and for the execution of contracts with the employer covering such agreements.

A member in good standing is defined as: a current employee of OPSEU employed in a position for which OPSSU hold representation rights and such employee has signed an application for membership in the Union. However, if a member is involuntarily removed from the employ of OPSEU, and has challenged such removal from employment through a grievance or other lawful challenge, they shall remain a member in good standing until such time as the legal challenge to the removal is fully and finally resolved. Further, such members pursuing reinstatement to employment through grievance or other legal challenge shall be exempt from the requirement to pay dues under Article 4 of the Constitution and the dues rate set by policy until such time as they are either reinstated to employment or receive any retroactive payment, which payment shall be subject to dues. (Dec 2016)

  1. OPSSU is designated, authorized and empowered exclusively to act as agent in the presentation and settlement of all grievances, complaints, or disputes of any kind arising out of the employer-employee relationship, exclusive of the statutory rights of an individual.

  2. Membership Development Trainees (MDT’s) shall have only statutory rights within OPSSU. In addition, MDT’s attending any OPSSU meeting shall have voice but no vote.

  3. A member who receives an acting appointment to a position outside the OPSSU bargaining unit shall have their rights to participate in OPSSU activities reduced to statutory rights only until such time they resume the full duties in an OPSSU bargaining unit position and their home position is no longer being backfilled. Further, they shall be deemed to have taken a temporary leave from any position held in OPSSU for the first four (4) months of the acting assignment and shall be deemed to have resigned from any OPSSU position held should the acting assignment continue for a greater period. Such member attending any OPSSU meeting shall have voice but no vote unless such vote forms part of their statutory rights.

  4. Each member shall be governed by and support the Constitution, regulations, and policies of the Union.

  5. It shall be incumbent upon each member to uphold the principles of democracy and fair play and to do no deliberate wrong or harm to any other member of this Union, or to take or cause to take any action, which is detrimental to the Union. Members found to have harmed, taken action or caused any action detrimental to the union or its members may have their rights to participate in OPSSU activities reduced to statutory rights only on a temporary or permanent basis, and such members who attend OPSSU meetings shall have voice but no vote unless such vote forms part of their statutory rights.

  6. Other than those members enjoying statutory rights only to participate in OPSSU activities, each member in good standing of this Union has the right to nominate, vote and stand for office, express views and opinions on all subjects before the Union, attend all General Membership Meetings and special meetings of the Union, and to attend meetings of the Executive Committee of the Union. Attendance at Executive Committee Meetings shall be in accordance with the policies of the Union.

  7. OPSSU members who retire from the permanent employ of OPSEU shall be granted honorary life membership in OPSSU upon recommendation of the Executive Committee.

  8. There shall be a Retired Members Group within OPSSU, known as the OPSSU Retirees Group (ORG), to bring together retired member to discuss the issues of particular concern and interest to ORG members, to formulate recommendations for action by OPSSU and to provide support and assistance to OPSSU. The ORG shall be governed by its Terms of Reference. (June 2018)

  9. Members of the OPSSU Retirees Group shall be invited to Demand Setting Meetings in order to present proposals on collective agreement bargaining items that affect retirees. Such retirees shall be entitled to submit expense claims for attendance to the Demand Setting Meeting. Members of the OPSSU Retirees Group (ORG) shall also be entitled to attend the General and Special membership meetings with expenses to be paid in accordance with the ORG Terms of Reference. (June 2018)

  10. Retirees may run for a seat on the Pension Committee however, there may only be one retiree as a member of the Pension Committee at any one time and a retiree may run for a seat on the Pension Committee but shall not have the right to vote in the election of members of the pension committee. (Jan, 2013)

  11. Honorary members attending any OPSSU Meeting shall have voice but no vote.

 

ARTICLE 4 – DUES AND ASSESSMENTS

 

  1. Each member of this Union shall make, as hereinafter provided, such regular contributions as designated from time to time as dues.

  2. Regular monthly dues shall be paid by each member as is provided for in Article 4.03 in the Constitution.

  3. All dues are payable during the current month to the Treasurer of the Union. Union dues, as determined by a two-thirds (2/3) majority vote of the membership at a general membership meeting, shall be paid each month.

  4. The level of dues shall be as prescribed by the Executive Committee. No change in the level of dues may take effect until approved by at least two-thirds (2/3) majority vote of the membership at a General Membership Meeting with proper notice as directed in Article 18 or at a meeting held pursuant to Article 15.03.

  5. Assessments may be levied from time to time following a special meeting, for which appropriate notice has been given by the Executive Committee, and approved by a two-thirds (2/3) majority of members present and voting.

  6. The actual level of dues expressed as a percentage of salary shall be specified in the Policies and Procedures Manual. (Feb. 2012)

 

ARTICLE 5 – FUNDS

 

  1. The funds of the Union shall be the property of the Union. The Treasurer and one other officer of the Union who has signing authority shall carry out each financial transaction in the name of OPSSU.

 

  1. The Treasurer, President, First Vice-President, Second Vice-President and Secretary of OPSSU shall have cheque-signing authority. Where electronic funds transfer is offered by OPSSU’s banking institution such service may be used for member expense claims, provided such service has an authorization mechanism where two signatories must agree to a funds transfer prior to payment being made and the capacity to reflect the meeting date and specific purpose for which the payment was made. (June 2018)

  2. Each cheque shall bear the signature of two officers with signing authority who are not the payee.

  3. No cheque shall be signed prior to all information on the cheque being complete.

  4. The above signing officers shall be authorized to make necessary disbursements in accordance with the Constitution, regulations and policies of the Union. Such disbursements will be reported at General Membership Meetings at the earliest opportunity.

  5. The Negotiating Team shall be authorized to incur reasonable expenses for the negotiation of collective agreements, subject to the provisions of the financial policies and procedures of OPSSU.

  6. Negotiating Team expenditures shall be kept separate insofar as recording is concerned and shall be reported regularly to the Executive Committee and a report of all expenses associated with each round of bargaining shall be prepared and distributed to the Ratification Meeting.

  7. Where the Negotiating Team is considering action that would result in extraordinary costs associated with bargaining (e.g. consultant’s expenses, etc.) the President will be consulted for direction and prior approval by the Executive Committee is required before expenses are incurred.

  8. A system of detailed records reflecting the financial operation of this Union will be established and maintained so as to provide for regular auditing.

  9. The fiscal year of this Union shall be from January 1 to December 31 and it shall be the duty of the Trustees of this Union to audit the books and financial affairs of this Union for bi-annual periods of January 1 – June 30 and July 1 to December 31 (June 2018)

 

 

ARTICLE 6 – ELECTION PROCEDURES

 

  1. Definitions:

Where referred to in this Constitution the following definitions shall apply:

Majority: Greater than fifty percent (50 %) of the members present and voting.

2/3rd Majority: Two-thirds (2/3) of the members present and voting or more.

Plurality: The most votes received on a ballot. (Sometimes referred to as simple majority)

6.2 Breaking Ties

Should an election result in a tie there will be one tie-breaking ballot. Where the tie still exists, the election will be decided by flipping a coin.

6.3 Negotiating Teams

Negotiating teams shall be elected in accordance with the Negotiations Procedures and the Pay Equity Maintenance Committee Procedures.

6.4 It is understood that the Union will hold elections for the Executive Committee at such a time as to provide members from the regional offices the opportunity to attend.

6.5 A temporary vacancy shall be considered to exist if any member holding any office in the Union receives an acting appointment to a position outside the OPSSU bargaining unit, such vacancies shall be considered temporary for a maximum of four (4) months after which time they shall be considered permanent and shall be filled pursuant to Article 6.08 .

6.6 Temporary vacancies shall be filled by appointment by the President, in conjunction with the Executive Committee, except for the office of President, which shall be filled by the next ranking officer in order of authority as established in Article 7.03.

6.7 The President may, in conjunction with the Executive Committee, appoint a member of the Executive Committee to the vacant position until the next General Membership Meeting. However, should the office of the President become vacant, the First Vice-President shall automatically assume the position until the next regular General Membership Meeting.

6.8 Should any office become vacant for any reason, an election will be held at the next regular General Membership Meeting to elect a member to fill the vacancy until the next general election.

6.9 When during an election there are no candidates for a particular category, candidates from a different category may run for that committee position. This position will be temporarily filled until the following GMM when it will again open for election.



6.10 Order of Elections:

 

 

EVEN YEAR

ELECTIONS

ODD YEAR ELECTIONS

 

Accommodations Committee

(1) Benefits Committee

(1) Health and Safety Committee

(1) Steward Body

 

Benefits Committee

(1)

(2)

First

General Membership Meeting of the year

Communications Committee

(2)

(2)

Constitution Committee

(1)

(2)

Education Committee

(1) Protech

(1) Support

(1) Service

(1) Support

(1) Protech

Central Joint Health & Safety Committee

(2) Head Office at 100 Lesmill Road

(1) Regional Office

Pay Equity

Maintenance Committee

(1) Head Office Protech

(1) Head Office Support

(1) Head Office Service

(1) Regional Protech

(1) Regional Support

Pension/Trust Severance Committee

(1)

(2)

Scholarship Committee

 

(2)

Women’s Committee

(2) Head Office

(2) Regional Office

 

Employment Equity / Human Rights Committee

 

 

(3) Head Office

(2) Regional Office

OFL – two (2) Delegates

1st meeting in the year prior to the OFL

 

CLC – two (2) delegates

1st meeting in the year prior to the CLC

Last

General Membership Meeting of the year

Executive

 

President

1st Vice President

2nd Vice President–

Chief Steward –

Secretary

Membership Secretary

Treasurer

(2) Stewards-at-Large

Grievance Committee

(4) from stewards-elect

Social & Recreation Committee

(2) Head Office

(1) Regional Office

(1) Head Office

(2) Regional Office

Trustees

 

(2) – can’t hold any elected office



Implementation Note:

  1. All committee members elected February 2014;

    1. term is amended to expire first meeting of 2016 ;

    2. when electing the Communications Committee two (2) members are elected for a one (1) year term expiring at the 1st General Membership Meeting in 2017 and two (2) members are elected for a two (2) year term expiring at the 1st General Membership Meeting in 2018;

    3. when electing the Education Committee one (1) Protech, one (1) Support member and one (1) Service member are elected for a one (1) year term expiring at the 1st General Membership Meeting in 2017 and one (1) Protech member and one (1) Support member are elected for a two (2) year term expiring at the 1st General Membership Meeting in 2018

 

  1. All committee members elected December 2014;

    1. term is amended to expire at the 1st General Membership Meeting in 2016;

    2. when electing the Health & Safety Committee, two (2) Head Office representatives will be elected for a two (2) year term expiring a the 1st General Membership Meeting in 2018 and one (1) Regional Office representative will be elected for a one (1) year term expiring at the 1st General Membership Meeting in 2017.

 

 

ARTICLE 7 – EXECUTIVE COMMITTEE

 

  1. The Union shall have the following Executive Officers and they shall comprise the Executive Committee: President, First Vice-President, Second Vice-President, Chief Steward, Secretary, Membership Secretary, Treasurer, and two (2) Stewards who shall be known as Executive Committee Members at Large.

  2. Each Executive Officer shall be elected by a majority of members present and voting in accordance with the Constitution for a two-year (2-year) term of office. Elections shall normally take place at the fall membership meeting in an election year.

  3. The order of authority shall be: President, First Vice-President, Second Vice-President, Chief Steward, Secretary, Membership Secretary and Treasurer.

  4. All Executive Officers shall be elected from and by the members of the union. Upon election, all officers shall be deemed to be Stewards. (December 2015)

 

 

DUTIES OF OFFICERS

 

7.5 President

 

The President shall:

    1. Preside at all meetings of the Executive Committee and the membership;

    2. act as ex-officio and voting member of all committees of the Union;

    3. perform other such duties as may be necessary for the proper functioning of the Union in accordance with the Constitution, regulations and policies of the Union;

    4. report on the activities of the Executive Committee at each regular General Membership Meeting of the Union;

    5. be a member of the Negotiating Committee;

    6. be a member of the Pay Equity Committee;

    7. be the automatic first delegate to conventions of the C.L.C, N.U.P.G.E., and the O.F.L.

The President may delegate members to represent the President, except where such delegation is contrary to the Constitution.


  1. First Vice-President

The First Vice-President shall:

      1. perform the duties of the President in the absence of the President or when called upon by the President;

      2. perform such other duties as may be assigned by the President.


  1. Second Vice-President

The Second Vice-President shall:

    1. perform the duties of the First Vice-President in the absence of the First Vice-President;

    2. perform such other duties as may be assigned by the President or the Executive Committee.

    3. be an automatic member of the Grievance Committee.

    4. chair the Grievance Committee in the absence of the Chief Steward.


  1. Chief Steward

The Chief Steward shall:

    1. be responsible for assisting Shop Stewards in handling all complaints and grievances arising out of the employment relationship. More specifically, to assist Shop Stewards in the investigation and processing of all complaints and grievances up to and including arbitration;

    1. serve as Chairperson of the Grievance Committee.

    2. be responsible to establish and maintain a collective bargaining file from each round of bargaining to ensure information from bargaining is preserved for subsequent rounds or should bargaining history be needed for rights arbitrations.


  1. Secretary

The Secretary shall:

  1. keep a full and impartial record of the proceedings of all meetings of the Executive Committee and the Union;

  2. be responsible for the distribution of copies of the minutes of all meetings of the Executive Committee to the members of the Executive Committee and copies of minutes of membership meetings to all members of the Union;

  3. be responsible for the publication and distribution of notice of all meetings of the Executive Committee and/or meetings of the Union and/or proposed amendments to the Constitution, regulations, and policies, and notice of meetings shall contain a proposed agenda;

  4. perform such other duties as may be assigned by the President or Executive Committee.

  5. keep copies of minutes of all committees and any other information directed to the Secretary from the chairperson of any committee.


  1. Membership Secretary

The Membership Secretary shall:

  1. be responsible for all membership tracking/records.

  2. assist with Steward election process as per Article 9 (June 2018)

  3. perform such other duties as may be assigned by the President or Executive Committee.


  1. Treasurer

The Treasurer shall:

    1. keep all financial accounts of the Union and shall maintain correct and proper accounts, shall receive all dues, assessments and fines from members of the Union and shall deposit same in the name of OPSSU in such bank or credit union as the Union may direct;

    2. make all disbursements in accordance with the Constitution, regulations and policies of the Union;

    3. make a financial report to all General Membership Meetings and Executive Committee Meetings;

    4. submit financial books to Trustees bi-annually;(June 2018)

    5. submit signed receipts for all assessments and fines to each member on an annual basis or as directed by the Executive Committee;

    6. within ten (10) working days following the expiration of the term of office, the Treasurer shall turn over to the incoming Treasurer all properties and assets, including funds, books and records belonging to the Union.


  1. Executive Committee Members at Large

The Executive Committee Members at Large shall have, in addition to their work on the Executive Committee, such assignments as may be from time to time given them by the President or Executive Committee.

 

 

ARTICLE 8 – TRUSTEES

 

  1. Two trustees shall be elected from among the membership by plurality for a term of two years. Trustees shall hold no other elected office in the Union.

 

  1. The Trustees shall:

    1. annually audit the financial books of the Treasurer and shall exercise general supervision over the property of the Union;

    2. examine the books and records of the Treasurer or examine all properties and other assets of the Union bi-annually and shall report their findings to The bi-annual General Membership Meeting of the Union on the condition of the funds and accounts; (June 2018)

    3. ensure that all expenditures have been properly approved in accordance with the Constitution, policies and procedures of the Union;

    4. have access to all supporting minutes and/or documents in respect of all expenditures, upon request by the Trustees.

    5. make recommendations to the Treasurer on the manner of recording transactions:

    6. submit to the Executive, through the Treasurer, recommendations on amendments to the financial policy of the Union.

 

ARTICLE 9 – SHOP STEWARDS

 

  1. Shop Stewards shall be elected by majority vote; by and from the Constituency they serve for a term of two (2) years.

 

  1. Four months prior to the General Membership Meeting, where elections of the Executive Committee are to take place, the Membership Secretary of OPSSU shall notify each constituency, entitled to a steward(s), to hold an election for their Steward(s) and submit the name of their steward(s) in writing to the Membership Secretary no later than one (1) month prior to the General Membership Meeting.

The Membership Secretary shall compile the list of eligible Stewards for forwarding by the Secretary of OPSSU to the General Membership Meeting.

  1. The following constituencies shall be entitled to up to the following number of stewards:

  • Operations Services Unit and Mailroom/Print Shop Unit -2

  • Accounting Unit and Payroll Unit -1

  • Region One -2

  • Region Two -2

  • Region Three -2

  • Region Four -2

  • Region Five -2

  • Region Six -2

  • Region Seven -1

  • Organizing Unit -1

  • Research Unit -1

  • Negotiations Unit -1

  • Local Services Division, Job Security Unit -1

  • Arbitrations Unit and Legal Services Unit – 2

  • Pensions and Benefits Unit -1

  • Health & Safety Unit, Member Education and Equity Unit -1

  • Communications Unit and Campaigns Unit -1

  • Information Technology Unit -1

  • Membership Services Unit and Conferences Unit -1



  1. Should any Shop Steward position become vacant or where a Steward has been elected to a position with a full time book off, such vacancy or backfill shall be filled by election in accordance with 9.01, and the incumbent shall occupy the position for the remainder of the term.

 

ARTICLE 10 – SHOP STEWARDS: DUTIES AND RESPONSIBILITIES

 

  1. The Shop Stewards shall:

    1. be responsible for assisting members in handling all complaints and grievances arising out of the employment relationship. More specifically, to assist members in the investigation and processing of complaints and grievances up to and including arbitration;

    2. make presentations to the Grievance Committee deliberations on grievances and problems specifically involving their respective members;

    3. meet with their respective members on a regular basis, not less than three times a year, for the purpose of identifying employment relationship problems;

    4. be responsible for identifying and signing new members.

 

ARTICLE 11 – GRIEVANCE COMMITTEE

 

  1. There shall be a Grievance Committee chaired by the Chief Steward and in addition consisting of the President, the Second Vice-President of OPSSU and four (4) other stewards, who shall be elected at the election meeting by plurality from amongst the stewards-elect.((DEC 2011) Upon election to the Grievance Committee, all members shall be deemed to be stewards. (Feb 2014)

 

  1. The Grievance Committee shall receive and review all grievances alleging violations of the collective agreement, which have not been resolved at Step 2. The Committee shall determine whether a grievance has merit and whether it will be referred to arbitration. Such review shall be concluded by the Grievance Committee not later than sixty (60) days from the date upon which the Step 2 decision was rendered. In makings its determination, the Grievance Committee shall consider the following factors:

    1. Whether there is a breach of the collective agreement;

    2. Whether the grievance has merit. The Committee must review relevant case law related to the issue in dispute prior to rendering a decision not to refer the grievance to arbitration;

    3. Whether there is a downside risk to the OPSSU membership at large if the grievance is scheduled for arbitration; and

    4. Financial stability of the OPSSU if the grievance is scheduled for arbitration.

 

Accommodation Grievances

If the grievance demonstrates a prima facie case that the Employer failed to accommodate the member, in accordance with the Ontario Human Rights Code, the Grievance Committee shall refer the grievance to expedited arbitration.

11.3 The Grievance Committee shall provide written reason to the grievor within seven (7) days after making a decision not to refer a grievance to arbitration.

11.4 Decisions of the Grievance Committee may be subject to an appeal as set out in the Policies and Procedures Terms of Reference: Executive Appeals Committee.

11.5 The Chairperson of the Grievance Committee may from time to time call a meeting of the Shop Stewards for the purpose of reviewing matters of common interest, exclusive of deliberation and determination of specific grievances. (Dec 2011)

 

ARTICLE 12 – NEGOTIATING COMMITTEE

 

  1. There shall be a Negotiating Committee consisting of the President and five members elected from amongst the membership at a General Membership Meeting. The members of the Negotiating Committee save and except the President, shall be elected from each of the three (3) employee categories of Service, Support and Professional Technical, providing there is a candidate available from each category.

At the election meeting the three categories will meet separately to elect one team member each representing their category. Following the category elections, the entire membership shall elect two team members at-large. Elections for the delegates shall be by majority. The first and second runner-up in each category and in the at-large elections shall be declared alternates and shall only join the team to replace their respective category or at-large delegate if their respective team member withdraws or is unable to complete the term.

Should a new President of OPSSU be elected while negotiations are in process the President shall immediately take her/his place on the bargaining team.

  1. For the purpose of negotiating a collective agreement, the procedures shall be as designated in Appendix 1 and shall form part of this Constitution. Amendments to Appendix 1 shall be effected in accordance with the Constitution.

  2. Any collective agreement entered into by this Union with the employer must be ratified by the majority of the members in attendance and voting at a ratification meeting conducted in accordance with Appendix #1 – Negotiation/Ratification Procedures.

 

ARTICLE 13 – EMPLOYEE / EMPLOYER RELATIONS COMMITTEE

 

  1. There shall be an Employee/Employer Relations Committee. The representatives shall be the President and such other Executive Committee Members as assigned by the President of OPSSU.

 

  1. The responsibility of the EERC shall be to meet with the employer from time to time to discuss matters of mutual concern.

 

  1. The Terms of Reference for the E.E.R.C. shall be as outlined in the Terms of Reference section of the Policies and Procedures.

 

ARTICLE 14 – POWER OF ADMINISTRATION

 

  1. The membership is the highest authority of the Union.

 

  1. Between membership meetings, the Executive Committee shall be the highest authority of the Union and shall be empowered to act on behalf of the membership consistent with the authority vested by the Constitution.

 

  1. The President shall be responsible for generally supervising the affairs and operations of the Union and shall have an overall authority as the Executive Committee may assign from time to time, but at all times in a manner consistent with the Constitution, policies and procedures of the Union.

  2. Waiver of any provision of the collective agreement by OPSSU shall only take place following a special membership vote on the specific waiver at issue.

However, in situations where a provision of the collective agreement is to be waived to comply with obligations set out in specific legislation, the Executive may agree to such a waiver. Such agreement will require a 2/3 majority recorded vote of the Executive. The Secretary of the Union shall advise all OPSSU members (electronically or otherwise) of such waiver within 30 days of said vote and provide the reasons thereof as well as the results of the Executive vote. Such waiver will be an agenda item at the next General Membership Meeting.

  1. All collective agreements, letters of understanding or memoranda of understanding or settlement shall be signed by the President of OPSSU or the President’s designate. Such designation must be in writing.

 

  1. All policies and procedures herein referred to shall be subject to approval by the members at a General Membership Meeting.

 

ARTICLE 15 – MEETINGS

 

  1. General Membership Meetings shall be held semi-annually and/or more frequently as required.

 

  1. Executive Committee Meetings shall be held every two (2) months and/or more frequently as required.

 

  1. A special meeting of the Union may be called by the President or by a majority of the Executive Committee or by a petition signed by not less than one-third of the members and presented to the President.

 

  1. At a duly advertised meeting, forty (40) members will constitute a quorum for the conducting of the business of the Union.

 

  1. All questions of parliamentary nature shall be decided by Roberts Rules of Order.

 

ARTICLE 16 – STANDING COMMITTEES

 

  1. The Union shall have the following Standing OPSSU Committees:

  • Grievance Committee

  • Employee-Employer Relations Committee *

  • Benefits Committee *

  • Health and Safety Committee *

  • Social and Recreation Committee

  • Constitution/Policy Committee

  • Pension Trust Severance Committee *

  • Communication Committee

  • Accommodation Committee *

  • Pay Equity Maintenance Committee *

  • Education Committee

  • Scholarship Committee

  • Workload Committee *

  • Wellness Committee *

  • Hardship Committee

  • Employment Equity/Human Rights Committee *

 

* members of these committees must also represent OPSSU on joint Union/Employer committees. All committees may be elected or appointed subject to the provisions of this Constitution, the appropriate Terms of Reference and the Policies of the Union. Where committee members are elected, such election shall take place in accordance with Article 6.09 at a General Membership Meeting and shall be by plurality.

 

16.2 The rules of procedure for Standing Committees shall be as follows:

 

    1. Committees shall meet once every four (4) months, or more or less frequently as required;

    2. Notwithstanding Article 16.02(1), committees shall utilize telephone conference calls to the greatest extent possible;

    3. Decisions be made by majority vote of committee members at such meetings;

    4. A quorum for standing committees will be greater than fifty percent;

    5. Any member of OPSSU may make a presentation at the next scheduled meeting of a standing committee of OPSSU, by notifying the Committee Chair or President of OPSSU of their desire to make a presentation;

    6. Minutes of all committee meetings be submitted to the OPSSU Secretary; and

    7. Committees make regular reports to the Executive Committee of the Union. Such reports may either be in writing to the Executive or by attendance of the committee chair at the Executive Committee.

    1. Special Committees may be struck from time to time by the Executive Committee or the President to carry out specific projects for the union. The terms of reference for these Special Committees shall be subject to the rules of procedure for Standing Committees as outlined in Article 16.02 of this Constitution.

 

ARTICLE 17 – VIOLATION OF CONSTITUTION

 

  1. Any OPSSU executive member, steward or committee member may be suspended from office for good and sufficient cause by a majority decision of the Executive Committee. The decision of the Executive Committee to remove a member from office shall be presented to the next General Membership Meeting for confirmation.

 

  1. Procedures

    1. When the Executive is to consider the suspension of any OPSSU member from office, the member concerned shall be given a minimum of two weeks’ notice of the meeting considering action.

    2. The member concerned, along with a representative of the member’s choice, may attend the meeting to make representations on the issue.

    3. Where the Executive Committee, by a majority vote, decides to suspend a member from office, that decision, along with the reasons for the action, shall be circulated to the membership of OPSSU.

    4. The member in question shall be suspended until the next General Membership Meeting at which time the membership will decide whether to remove or reinstate the member.

    5. The member who has been suspended from office shall have the right, with the representative of the member’s choice, to address the issue prior to the vote of the membership.

  2. Any OPSSU member found to have violated Article 3.6 of the constitution may have their rights to participate in OPSSU activities reduced to statutory rights only, either for a set period of time or permanently, by a majority decision of the executive committee. The procedures shall be the same as those outlined in Article 17.2 for suspending a member from elected office.

 

ARTICLE 18 – AMENDMENTS TO THE CONSTITUTION

 

  1. The Constitution may be amended at a special meeting held in accordance with Article 15.03 of the Constitution or at a regular General Membership Meeting of the Union.

 

  1. The Constitution shall be amended in the following manner:

    1. Proposed amendments shall be referred to the Constitution Committee no later than thirty (30) days prior to the meeting at which they are to be considered. The Constitution Committee shall consider the proposals, discuss and / or clarify them with the proponents as necessary or advisable, and include in the Constitution Committee report those motions proceeding to a membership meeting. The report shall be forwarded to the OPSSU Secretary for distribution.

    2. The proposed amendments shall be in writing describing the exact language proposed with rationale and, where possible, substantiating documentation, and shall be signed by the mover and seconder.

    3. The Secretary shall publicize the Constitution Committee report to the membership no later than (10) days prior to the meeting at which the proposed amendments are to be considered.

    4. Members seeking to amend a motion from the floor shall fill out a form in writing clearly identifying their proposed change to the motion that is before the membership meeting and promptly deliver it to the Chair of the Constitution Committee. The Chair of the Constitution Committee shall keep the original form and provide a copy to the Secretary for the purposes of keeping minutes.

  2. Adoption of amendments to the Constitution shall be at a regular General Membership Meeting at which a quorum shall be in attendance and shall require a two-thirds majority of those present to be adopted.

 

ARTICLE 19 – AMENDMENTS TO THE POLICIES AND PROCEDURES

 

  1. Procedures are defined as those that are necessary for the conduct of negotiations and the handling of grievance matters. Policies are decisions approved or confirmed by the membership at a General Membership Meeting.

 

  1. The policies and procedures may be amended at a meeting held in accordance with Article 15.03 of the Constitution or at a regular General Membership Meeting of the Union.

  2. The policies and procedures shall be amended in the following manner:

  1. Proposed amendments shall be presented as a notice of motion to the OPSSU Secretary no later than thirty (30) days prior to the meeting at which they are to be considered.

  2. They shall be in writing describing the exact language proposed with rationale and, where possible, substantiating documentation, and shall be signed by the mover and seconder.

  3. The Secretary shall publicize notices of motion to the membership no later than ten (10) days prior to the meeting at which they are to be considered.

  4. A proposed amendment or Notice of motion, which proves untimely for a specific meeting may be considered at that meeting if approved by a two-thirds (2/3) majority of those present.

    1. Adoption of amendments to the policies and procedures shall be at a regular General Membership Meeting at which a quorum shall be in attendance and shall require a simple majority (50% plus 1) of those in attendance and voting to be adopted.

 

ARTICLE 20 – MERGER OR AFFILIATION

 

Purpose

 

The purpose of this article is to provide direction in the event that OPSSU is requested to or decides to explore a potential merger or affiliation with another Union.

 

Definitions

 

Affiliation: The state or relation of being closely associated or affiliated with a particular person, group, party, company, etc. (But not a transfer of rights as defined under section 68 of the OLRA)

 

Merger: To cause to combine, unite, or coalesce and as defined under section 68 of the OLRA

 

Process

 

1. A vote will be conducted via secret ballot at a meeting to determine whether there is interest in merging or affiliating with any interested union(s).

 

A simple majority vote of (50% +1) is required. Those members registered and in attendance at the meeting when the question is called will be eligible to cast a ballot.

 

Attendance in this regard means in-person except those times where the meeting is held entirely by different means.

 

2. If there is interest expressed by the members of OPSSU (per #1 above) to move forward, then an ad-hoc committee of five (5) or seven (7) members representing a cross-section of the membership will be appointed by the Executive Committee within 10 days of this meeting. The merger and/or affiliation criteria will be set by participants at the meeting.

 

3(a) If there is a single interested union, then the Ad-hoc Committee will invite that Union to make a presentation, including a question-and-answer session, at a Special meeting no earlier than sixty (60) days and no more than one-hundred and twenty (120) days after the date of the meeting which voted to consider a merger or affiliation. The interested Union will be asked to provide information relevant to the issues no less than thirty (30) days in advance of the meeting.

 

Following this presentation, the members will have an opportunity to debate the pros and cons of a merger or affiliation and then prepare for a formal vote to take place at the end of this meeting. A two-thirds (2/3rds) majority will be the deciding factor.

 

3 (b) If there is more than one Union that has expressed interest, the Ad-hoc committee will reach out to each Union to make a presentation, including a question-and-answer session, at a Special meeting no earlier than sixty (60) days and no more than one-hundred and twenty (120) days after the date of the meeting which voted to consider a merger or affiliation. The interested Unions will each be asked to provide information relevant to the issues no less than thirty (30) days in advance of the meeting.

 

Following these presentations, the members will have an opportunity to debate the pros and cons of each presentation on either merger or affiliation and then prepare for a formal vote to take place no earlier than fourteen (14) days and no later than thirty (30) days from the date of the meeting. If there are more than two Unions on the ballot, the Union with the lowest number of votes will drop off. A two-thirds (2/3rds) majority will be the deciding factor.

 

For clarification, throughout the balloting process, the option of “Do not merge or affiliate with any of the above” will remain an option.

 

APPENDIX 1: OPSSU NEGOTIATION / RATIFICATION PROCEDURES

 

A. CONSULTATION PROCESS

No less than Nine (9) months prior to the expiry of the Collective Agreement the President shall convene a meeting or meetings with OPSSU members holding responsible positions to discuss priority issues for the next round of bargaining. This shall include the President, Chief Steward, Two (2) members of the previous Negotiating Team (as determined by that Negotiating Team), the Chair of the Benefits Committee, or her/his designee, the Chair of the Pension Committee, or her/his designee and the Chair of the Health & Safety Committee, or her/his designee. Following the consultation meeting each Committee referenced above shall prepare written reports with bargaining recommendations for referral to the incoming Negotiating Team to be utilized in the preparation of the survey for bargaining unit members/retirees. These reports shall be circulated to the membership with the survey (see Part C below).

 

B. NEGOTIATING TEAM ELECTED

No less than six (6) months before expiry of the Collective Agreement the Negotiating Team shall be elected at a General Membership Meeting. The team shall elect a chairperson and may assign specific functions and responsibilities to team members, as it deems appropriate.

 

C. MEMBERSHIP SURVEY

The newly elected Negotiating Team shall circulate the bargaining unit survey at least four (4) months prior to the expiry of the collective agreement to all OPSSU members and retirees seeking their input into bargaining proposals/priorities. The deadline for input shall be specified on the survey and shall not be less than fourteen (14) calendar dates after circulation.

 

D. WRITTEN PROPOSALS FROM MEMBERS

Upon receipt of the survey members may submit written proposals for review by the Negotiating Team.

All written proposals that individual members wish to put forward for consideration at the Demand-Setting Meeting must be forwarded to the OPSSU Secretary by the specified deadline for submission. The Secretary shall forward the written proposals for review to the Negotiating Team.

 

E. DEMAND SET BOOK

The Negotiating Team shall consider all proposals submitted and compile a Demand Set Book, with all proposals organized by category (Central, ProTech, Support, and Service) and which will include recommendations. This report will cover such areas as current economic factors, language improvement, rights and benefits of similar bargaining units, and areas of improvement identified in the previous round of bargaining. Where applicable and/or available, research will be provided. This document will also propose priorities from among all proposals and recommendations.

The Demand Set Book shall be sent to the OPSSU membership and retirees at least ten (10) days prior to the Demand-Setting Meeting.

 

F. DEMAND-SETTING MEETING

A Demand-Setting Meeting will be conducted at least one (1) month prior to the expiry of the collective agreement and shall be chaired by the chairperson of the Negotiating Team. The proposals contained in the Demand Set Book shall be considered by the membership in the following manner:

  1. Any member present may move any proposal from within the Demand Set Book for consideration, by referring to the page and Article reference (if there are multiple proposals related to the same clause the mover should indicate which is being proposed) subject to the provisions below.

  2. Members will move into category caucus groups i.e. Service, Support and Professional Technical. Each Category caucus meeting shall be chaired by a member of the Negotiating Team. Once in the category caucus any number of proposals within the Demand Set Book that are specific to that category may be moved. Category proposals that are moved seconded and carried by a majority may be considered for inclusion in the category demands. Up to five (5) prioritized proposals may be adopted by each category and shall be the category demands put forward to the Employer.

  3. Following disposition of category proposals all members present may consider any of the Central proposals (i.e. those proposals that affect more than one category). Any number of Central proposals within the Demand Set Book may be moved, seconded and debated. Central proposals that are carried by a majority may be considered for inclusion in the Central proposals. Up to ten (10) prioritized Central proposals shall be the Central proposals forwarded to the Employer. In the event that quorum is lost, the Negotiating Team shall have the authority to complete the process.

  4. Emergency proposals received after the deadline date will only be considered by the Demand Setting Meeting upon recommendation of the majority of the Negotiating Team.

  5. The Negotiating Team shall have the authority to add, delete or amend proposals as necessary during the course of bargaining.

 

G. BARGAINING BULLETINS

The Negotiating Team shall issue regular bulletins to the membership/retirees so that everyone is informed of the developments related to bargaining prior to and following the commencement of formal face-to-face negotiations.

 

H. MOBILIZING COMMITTEE

A Mobilizing Committee of seven (7) members shall be determined immediately following the Demand Set Meeting. One (1) committee member shall be selected by and from the Negotiating Team, one (1) committee member shall be a member of the Executive and the remaining five (5) committee members shall be selected by the Executive from the membership. The Mobilizing Committee is authorized to create a mobilizing campaign in consultation with the Executive and the Negotiating Team. Such campaign is to support the bargaining agenda beginning after the Demand Set Meeting and concluding with the ratification of a settlement. Funds for the Mobilizing Committee shall be as determined in the annual budget or drawn from the Defense Fund as appropriate. Additional funds may be provided on the authorization of the Executive.

 

I. IMPASSE IN NEGOTIATIONS

Either prior to or following conciliation the Negotiating Team, with the consent of the Executive, may call a General Membership Meeting. The Negotiating Team will report on the circumstances giving rise to the impasse, seeking a mandate from the membership with respect to strike action and/or further direction.

 

J. RATIFICATION MEETING/VOTE

A Ratification Meeting shall be held as soon as practical and in any event within twenty-eight (28) calendar days of reaching a tentative settlement, with notice sent to all members/retirees. In case of a tentative agreement arrived at when no strike is in progress, except when an impending strike deadline makes it impractical to do so, the actual Memorandum of Settlement with its appendices and an explanation of the settlement will be distributed to all members/retirees at least seven (7) days prior to the actual ratification meeting.

Notwithstanding the foregoing, where a tentative agreement is reached prior to a regular scheduled membership meeting and, where the Negotiating Team elects to do so with the consent of the Executive, the tentative agreement may be put to the membership at that meeting. The team will provide as much notice as is possible and shall provide the Memorandum of Settlement and its appendices in advance of the meeting (Dec 2016).

Where a strike is in progress or a strike deadline has been set, the Negotiating Team shall issue a bargaining bulletin outlining the key elements of the tentative agreement prior to the ratification, if possible, or at the meeting. In addition, the complete Memorandum of Settlement, including any Return to Work Protocol, shall be distributed at the ratification meeting if it has not been distributed in advance.

 

K. IMPLEMENTATION AND DEVELOPMENT OF REVISED AGREEMENT

The Negotiating Team shall have responsibility to deal with immediate implementation issues arising out of any newly ratified agreement and shall provide advice to those holding other positions of responsibility for the production and distribution of revised signed collective agreements to all OPSSU members as soon as possible following ratification.

The Chair of the Bargaining Team, within a reasonable period of time after the ratification of a renewal collective agreement, shall be required to furnish a copy of all salient bargaining documents to the Chief Steward for inclusion in that round’s bargaining file. Such documentation will include, at a minimum, initial exchange proposals from both parties, one copy of bargaining notes, any newsletters or emails or other correspondence that is sent to all members, as well as any proposed MOS (including both ratified and non-ratified proposals) including any report to the membership on such MOS.

 

 

APPENDIX 2: OPSSU STRIKE POLICY

 

PREAMBLE:

 

This Strike Policy shall be attached to, and form part of, the OPSSU Constitution.

 

ARTICLE 1 – STRIKE COMMITTEES

1.01 All OPSSU Strike Committees shall be responsible to the Executive of OPSSU.

1.02 There shall be the following OPSSU Strike Committees:

    1. Central Strike Committee (CSC) comprised of:

  • the President of OPSSU;

  • the Finance Sub-Committee Chair (appointed by Executive);

  • the Strike Duties/Communication Chair (appointed by Executive);

  • a member selected by and from the Negotiating Team;

  • the member from the Strike Duties/Communications sub-committee responsible for central communications;

  • a Member of the Executive appointed by Executive.

    1. The Finance Sub-Committee comprised of:

  • the Finance Chair;

  • two (2) members appointed by Executive in consultation with the committee chair. (Note: consideration should be given to the geographic proximity to the committee chair when selecting committee members. The limited financial resources of OPSSU would best be used in providing strike pay and assistance rather than paying to bring people in to meetings).

    1. The Strike Duties/Communications Sub-Committee (SDCC) comprised of:

  • the Strike Duties/Communications Chair;

  • four (4) members appointed by Executive in consultation with Committee Chair one of whom shall be responsible for communications component of the Strike Duties/Communications Committee.

 

(Note: The limited financial resources of OPSSU would best be used in providing strike pay and assistance rather than paying to bring people into meetings therefore conference calls will be utilized as much as possible).

1.03 In addition to the above named Committees, Strike Coordinators and Unit Contacts will be selected as follows:

  1. Unit Contact

At the direction of the Executive, the Stewards will coordinate a meeting of the members working in each Department/Unit at Head Office and each Regional Office to select at least one (1) Unit Contact person in the following units:







Collective Bargaining

Cleaners

Equity

Admin. Services/Payroll/Accounting Services/Library

Job Security

Organizing Services

Research

 

Membership Benefits

Grievance/Health & Safety

Building Services// Central Duplicating/Membership Information Services

Campaigns/Communications

Resource Centre/Membership Services

 

Education

Information Technology

At least one for each Regional Office

  1. Strike Coordinators

Strike Coordinators are to be selected by the members from among the Unit Contacts in the following manner:

  • Field Services, one for each of the 7 Regions;

  • Contract Enforcement;

  • Collective Bargaining/Equity/Job Security

  • Building Services/Facility Services/Central Duplicating/ Resource Centre;

  • Membership Services/Accounting Services/ Administration/Payroll/IT;

  • Education/Campaigns/Communications

              • 5757 Coopers, including Membership Benefits

  • Organizing/Research.

 

At 100 Lesmill, one Coordinator from among its Coordinators shall be selected as Lead Hand by the Coordinators concerned. The Lead Hand’s role shall be to ensure that 100 Lesmill Coordinators are able to fulfill their responsibilities, to coordinate planned activities and to administer the financial paperwork.

 

ARTICLE 2 – COMMITTEE DUTIES

 

2.01 Central Strike Committee (CSC)

The Central Strike Committee will plan the overall strike strategy in consultation with the Finance and Strike Duties/Communications Committees and the Negotiations Team and the Mobilizing Committee. Its duties will also be to appeal for outside funds. It is chaired by the President of OPSSU and is empowered to run all aspects of a strike or a lockout.

2.02 Finance Committee

The Finance Committee shall handle all financial transactions, including overall administration of strike pay and the administration of funds transferred to the Coordinators or Lead Hand for administrative expenses. In addition the Finance Committee is responsible for trouble-shooting; hardship/welfare; fundraising and scrounging.

2.03 Strike Duties/Communication Committee (SDCC)

The SDCC, shall oversee all strike activities through Strike Coordinators, set up a central strike headquarters, handle logistics and disseminate all information utilizing the Strike Coordinator and Unit Contact structure. The SDCC shall prepare and distribute leaflets, a newsletter and other strike communications. In addition the SDCC shall handle media releases, public relations and garner support from other unions and the community; and foster general member morale.

2.04 Unit Contacts

Unit Contacts will be responsible for the flow of all information from the central committees to the membership and vice versa. This will include distributing all materials as required and relaying all membership concerns, questions and suggestions/strategies, both prior to and during any strike, to the SDCC through the Strike Coordinator.

Once the strike is called the Unit Contacts will assume the role of Picket Captain for their Unit.

2.05 Strike Coordinators

During the mobilization period Strike Coordinators will be responsible for the flow of all information from the central committees to the Unit Contacts and vice versa. Regional/Head Office Strike Coordinators will coordinate picket scheduling, in consultation with the Unit Contacts, to ensure strong effective picket lines at appropriate times and locations.

Strike Coordinators/ Head Office Lead Hand will also administer the Administrative expenses of the Area.

 

ARTICLE 3 – STRIKE FINANCES

 

3.01 The Finance Committee shall be responsible for the overall administration of all financial matters associated with the Strike.

3.02 Each Regional Office shall be entitled to an accountable warrant for strike administration expenses of $500 and Head Office shall be entitled to an accountable warrant of $1,500. Each area is responsible for reconciling the Area Administrative Fund.

3.03 A record of expenditures must be kept and submitted to the finance committee detailing all receipts and expenditures. Originals of paid invoices must be attached to these statements.

3.04 Only expenses falling within the OPSSU Strike Policy will be allowed unless specific approval for expenditures is authorized by the Finance Committee.

3.05 Additional grants may be authorized by the finance committee where circumstances warrant.

3.06 At the end of the strike all funds paid in the form of start-up grants or additional grants must be accounted for and any surplus returned to OPSSU.

3.07 At the end of the Strike the Finance Committee shall present a detailed report of all receipts and expenditures during the Strike to the OPSSU Executive. This Report when approved by the Executive shall be distributed to the membership of OPSSU.

 

ARTICLE 4 – ALLOWABLE EXPENSES

 

4.01 During any Strike, OPSSU will automatically stop paying the following normal expenses:

              • mileage

              • child/elder/dependent care

              • per diems

              • lost wages/own time

              • meals

              • air travel, except for members in Regions six and seven.



4.02 Monies transferred to the 100 Lesmill Lead Hand and to the non 100 Lesmill Strike Coordinators shall be used to pay the following administrative expenses only:

              • picket sign materials;

              • approved, reasonable phone expenses;

              • fax/photocopy charges;

              • gas expenses for authorized use, other than normal transport to strike duty location;

              • paper/printer cartridges and other reasonable office supplies;

              • stamps;

              • any other expenses authorized by the Finance Committee.

4.03 Expenses for the Central Strike Headquarters and all Central initiatives after a strike mandate has been given shall be paid by the Finance Committee from the Defense Fund.

4.04 Where it is not economically feasible for any member to attend necessary meetings in person, they will participate in meetings via teleconferencing.

4.05 Where more than one member from any area is attending a meeting, car-pooling is recommended to reduce expenses.

4.06 All strike accounting procedures shall be as outlined in the OPSSU Strike Manual which shall be maintained by the Executive consistent with the Constitution and Policies of OPSSU.

 

ARTICLE 5 – STRIKE PAY

 

5.01 Only members who perform assigned duties shall receive strike pay.

 

5.02 The minimum strike duties that must be performed in order to receive Strike Pay shall be twenty hours per week. Members shall be eligible for partial Strike Pay where they perform strike duties for part of the week. For this purpose four hours of strike duties will be necessary in order to receive one day’s strike pay.

 

5.03 The Unit Contacts/Strike Coordinators will define strike duties that must be performed. The “week” is assumed to include five workdays.

5.04 Strike pay shall be as follows:

Dependents per day per week

no dependents $200.00/week

1 dependent $20 – $100

2 dependents $40 – $200

3 dependents $60 – $300

4 or more $80 – $400

5.05 For the purposes of this Article dependents are defined as non-wage earners for whom the member is financially responsible.

5.06 If a member wishes to perform strike duties in a city other than his/her work location, he/she may request this option. The Strike Coordinator/Unit Contact/members will make this determination having due regard to the wishes of the member and the needs of the Area.

5.07 Members with disabilities and family responsibilities will be accommodated to the extent possible in determining appropriate strike duties.

5.08 The Executive shall make a determination on what benefits will be maintained by OPSSU during a strike. This determination will be communicated to all members prior to any Strike.

5.09 If both spouses/partners are on strike, each spouse is eligible for strike pay, but where there are other dependent family members only one spouse may claim entitlement for dependents.

5.10 Strike pay for members employed on a part-time or occasional basis is the same as that paid to full-time members.

5.11 Strike pay shall be paid after the first two weeks on strike.

5.12 After the strike is over and strike duty has ended, members waiting to be called back to work will continue to receive strike pay up to and including two weeks following the working day before they start re-earning pay from the employer.

 

ARTICLE 6 – DONATIONS/LOANS

 

6.01 All centrally received donations/loans shall be deposited in the Defense Fund and will be administered by the Finance Committee.

 

6.02 Any local strike donations/loans may be added to the Area Administrative Account and utilized according to the wishes of the Area members.

6.03 Where a member elects to donate/loan his/her strike pay to the Strike, the funds will be deposited to the Area Administrative Account and utilized according to the wishes of the Area members.

 

ARTICLE 7 – STRIKE CALL

 

7.01 No Strike shall be called unless a General Membership Meeting has been convened for the purpose of holding a Strike Vote by secret ballot. A majority shall be considered to be greater than 50%.

 

7.02 Where the Employer has requested a final offer vote be taken, a rejection of the final offer shall be deemed to constitute a Strike Vote.

 

7.03 Once a strike mandate has been given by the membership and a ‘no board report’ has been requested by either party such that a strike deadline is set, in consultation with the Central Strike Committee, the Negotiation Team shall determine the strike date i.e. the date the work stoppage will occur, which shall be communicated to the membership

 

 

 

 

 

 

 

OPSSU

POLICIES

AND

PROCEDURES

 

 

 

OPSSU GRIEVANCE PROCEDURES

 

  1. COMPLAINT STAGE

When a member first becomes aware of a complaint s/he will discuss it with an OPSSU Steward.

The Steward will research the complaint to determine whether or not it is a valid grievance. This may include approaching the appropriate supervisor. Where there is a third party interest, the Steward will interview the third party and give proper consideration to the conflicting claims of each party.

If the complaint cannot be resolved, the Steward will put the grievance in writing in accordance with the Collective Agreement.

The Chief Steward or designee will give the steward the OPSSU grievance log reference number at this time. The number is to be used on all subsequent correspondence and documentation.

 

Step 1 Decision:

The steward will review any offers of settlement and confer with the Chief Steward or designee of same. Should the matter involve an issue of interest to the Union as a whole, or at the request of the Chief Steward, the Grievance Committee will be consulted before any offer is accepted. Should the grievance be settled, the Chief Steward will forward copies of the settlement to the Grievance Committee. If the matter is not resolved, the Chief Steward will forward the grievance to Step 2 and copy the steward of record and the Grievance Committee if necessary.

 

Step 2:

The grievor shall have the right to be represented at the step two meeting by his/her steward and may elect to attend the proceedings. The Chief Steward or a designee from the Grievance Committee will keep a written record of the Step 2 meeting including the Union and management positions as given at the Step 2 meeting.

The Grievance Committee shall have full authority to enter into any settlement that, within the confines of the Collective Agreement and in accordance with the Constitution, that in the opinion of the majority of the Grievance Committee, serves the best interest of the Union and the grievor considered as a whole. Such settlement must have the signature of the President of OPSSU or designee.

A grievance can only be dropped by a majority vote of the Grievance Committee to discontinue further processing or by the execution of a settlement between the Union and the employer.

Where the grievance is not resolved at Step 2, and having obtained the Grievance Committee’s concurrence, the Chief Steward shall forward the grievance to Arbitration. Time limits shall be monitored in accordance with the time limits set out in the Collective Agreement. The Chief Steward will seek the Employer’s agreement to use a mutually agreeable single Arbitrator to resolve the grievance.

 

 

Policy Grievance

The Grievance Committee will fully investigate the grievance before presenting it to the Executive Committee, including the employer’s position. The decision to proceed with a policy grievance will be determined by the Executive Committee and will be signed by the President and the Chief Steward.

A decision to accept or reject any settlement will be made by the Executive Committee and this decision will be final and binding upon the Union. Such settlement must have the signature of the President or Chief Steward of OPSSU.

If the Step 2 decision is unsatisfactory, the grievance will be submitted by the Chief Steward to arbitration or withdrawn in accordance with the direction of the Executive Committee.

OPSSU will seek the employer’s agreement to use a single Arbitrator for resolving policy grievances.

 

  1. IF THE GRIEVANCE IS ALLOWED TO PROCEED TO ARBITRATION

If it is decided to arbitrate, the committee will appoint a representative who will be responsible for the preparation of the case at arbitration, and to arrange for the attendance of such witnesses as s/he considers necessary to properly present the case.

Where there is a third party interest, the representative will give notice to such parties of the time, date and place of the hearing.

The representative will be authorized to have such discussions with the employer or his/her counsel as s/he considers proper for the purpose of clarifying the possibility of a settlement if s/he considers such action to be prudent, and in the best interest of the Union and the grievor.

The representative will be required to report any reasonable offers of settlement to the Grievance Committee and will be required to take instructions from the Grievance Committee with respect to any proposals for settlement that may be brought to his/her attention by the employer.

 

  1. GRIEVANCE COMMITTEE – Request for Referral to Arbitration

Representation(s) from a member and/or steward, should they so elect, requesting that a grievance be referred to arbitration shall be heard by the grievance committee. The steward concerned shall provide all necessary documentation.

The Chief Steward or designee will set up a file that will contain all relevant documentation. In addition, the file will contain a written record of all decisions taken by the Union in respect to the processing of the matter and the file shall be preserved for no less than two years following the date of final disposition. The Chief Steward will be responsible for the custody of all grievance files.

After fully investigating the matter the members of the committee will meet in private to decide whether or not to process the grievance to arbitration.

A decision on whether or not to proceed to arbitration will be made by a majority vote of the committee.

The committee will, within one week of its decision give written reasons to the grievor if it decides not to process the grievance to arbitration.

 

 

 

  1. IF THE GRIEVANCE IS NOT ALLOWED TO PROCEED TO ARBITRATION

If the Grievance Committee renders a decision not to proceed with a grievance, the grievor can appeal to the Executive Appeal Committee whose construction shall be determined by the Executive Committee. It will not include any members of the Grievance Committee.

The grievor shall submit such appeal in writing to the President or Secretary of OPSSU with one week of his/her receipt of the reasons for rejection.

If they wish to, the grievor and/or steward and a member of the Grievance Committee may appear before the Executive Appeal Committee to make presentations.

The decision of the Executive Appeal Committee is final. There is no subsequent appeal process.

The Grievance Committee will formally withdraw the grievance upon exhaustion of the appeal process.

 

  1. GRIEVANCE DECISIONS

When a grievance decision is rendered, the Chief Steward or designee will ensure that all stewards are in receipt of a copy. Case synopses will be drawn and these will be circulated to both the stewards and the regional offices. Arbitration decisions and/or settlements will be circulated to both the stewards and the regional offices. A grievance decision binder will be kept at the OPSSU union office at Head Office.

 

  1. CONFIDENTIALITY

In the processing of a grievance all discussion and/or offers of settlement are to remain confidential until made public by the Grievance Committee.

 

  1. FINAL DISPOSITIONS OF GRIEVANCES

The Chief Steward will be responsible for reporting on the final disposition of all grievances to the Executive Committee and to the general membership as required.

 

 

EMPLOYEE/EMPLOYER RELATIONS COMMITTEE

MEMORANDUM OF UNDERSTANDING

BETWEEN

THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION

AND

THE ONTARIO PUBLIC SERVICE STAFF UNION

 

ITEM #1 – ESTABLISHMENT OF EMPLOYEE/EMPLOYER RELATIONS COMMITTEE

The Ontario Public Service Employees Union, hereinafter known as the “Employer”, and the Ontario Public Service Staff Union, hereinafter known as the “Union”, hereby agree to the formation of an Employee/Employer Relations Committee consistent with the intent of Article 1.01 of the Collective Agreement between the Parties.

 

ITEM #2 – FUNCTIONS OF COMMITTEE

The function of the Employee/Employer Relations Committee shall be to establish a forum for consultation on changes in conditions of employment not governed by this Agreement and other matters of mutual interest; to permit negotiations of matters of mutual interest between employees in the bargaining unit and the management of the OPSEU.

Such matters shall not be subject to the mediation and arbitration procedures under this Agreement provided, however, that nothing shall preclude a grievance alleging a violation of the Collective Agreement.

While the Committee shall consider and attempt to resolve all problems of mutual concern, it is understood that the Committee shall function in an advisory capacity and shall have no power to alter, amend, or add to, or modify the terms of the Collective Agreement.

 

ITEM #3 – UNDERSTANDINGS REDUCED TO WRITING

  1. Where, as a result of negotiations under this Memorandum of Understanding, an accord is reached on any matter of continuing significance, the Employer or the Union or their respective representatives may require that the accord be reduced to writing as a Minute of Understanding.

  2. A Minute of Understanding shall be given effect by the signature of responsible officers of both parties, but no Minute of Understanding shall be binding upon the Employer without the approval of the President of OPSEU or his nominee, and no Minute of Understanding shall be binding upon the Union without approval of the President of OPSSU or his nominee.

  3. It is understood by both parties to this Agreement that a summary of positions agreed will be drafted immediately following each Employee/Employer Relations Committee meeting. Such summary is to be made available to all those in attendance at the Employee/Employer Relations Committee meeting within one week of the meeting. It is understood that the responsibility for the draft and circulation of such summaries be borne by the Employer and the Union to their respective members. The Chairpersons will agree on the final draft prior to any circulation.

  4. Prior to the Employee/Employer Relations Committee meeting, both Parties to this Agreement will submit in writing a proposed Agenda of items to be raised. It is understood that such proposals must be received by both parties at least one calendar week in advance of the holding of an Employee/ Employer Relations Committee meeting.

 

ITEM #4 – COMPOSITION OF COMMITTEE

  1. The Employer shall appoint a committee of up to four (4) members. The Union shall appoint a committee of up to four (4) members. Each party will furnish a list of its members to the other party, indicating the chairperson of their respective committees.

  2. Either party, at their expense, may invite one or more persons to provide expertise and advice on specific items, or as an observer or trainee, provided prior notice of five (5) working days is given to either Party.

 

ITEM #5 – TIME OFF FOR COMMITTEE MEMBERS

It is understood that the members of the Union Committee shall be granted time off with pay and without loss of credits for attendance at Committee Meetings, so long as advance notice is provided to the Employer in writing prior to the meeting. Time off granted under this sub-section shall not include travel time.

 

ITEM #6 – MEETINGS

  1. Regular Meetings will be held not more frequently than once a month at a location the most convenient to the work locations of those attending and the arrangements for such meetings will be provided by the Employer.

(2) Meeting dates will be set by mutual agreement by the Chairpersons of the Committee.

 

ITEM #7 – CIRCULATION OF INFORMATION

It is understood that the circulation of all materials, documents, information and correspondence shall be between the Chairpersons of the Employee/Employer Relations Committee established under this Agreement.

 

ITEM #8 – TERM OF AGREEMENT

The term of this agreement shall be for one year from the date of signature, and shall continue to be automatically renewed for a further period of one year unless either party gives notice of its desire to renegotiate the terms of this agreement. This agreement shall remain in effect until a new agreement is reached.

 

Signed at this day of, 1988

 

FOR OPSSU FOR OPSEU

___________________________ __________________________

___________________________ __________________________

___________________________ __________________________

 

 

 

 

 

 

 

 

 

 

 

Terms of Reference:

EMPLOYER-EMPLOYEE RELATIONS COMMITTEE

 

The terms of reference for EERC shall be as follows:

  1. To negotiate matters of mutual interest between employees in the bargaining unit and the management of the Ontario Public Service Employees Union.

  2. In order to facilitate the orderly and efficient operation of the committee, the EERC shall have the authority to include only those items on the agenda that:

  1. are submitted and endorsed by the executive of OPSSU and the President of OPSSU;

  2. have been submitted by members through their steward to the executive provided, however, that before the item is submitted the following criteria have been met:

    1. the steward has met with the members and discussed the matter;

    2. a meeting has been held with the employer in an attempt to resolve the matter;

    3. a written report, outlining the issue and the employer’s position is presented to the chairperson of the EERC, along with a request for the inclusion of the item on the agenda;

    4. agenda items, with the exception of emergencies, must be received fourteen (14) days prior to the EERC meeting for inclusion on that agenda.

3. The EERC shall have the right to reject any items put forward, provided, however, any person whose item is rejected shall be so informed in writing, giving full reasons for the decision.

4. The EERC will record minutes of all meetings and distribute summaries to the membership via the steward body.

5. The EERC shall not bring any matters before the employer that ought to be the proper subject matter of a grievance.

6. The EERC shall not enter into any agreement with the employer that is contrary to the collective agreement.

 

Terms of Reference:

BENEFITS COMMITTEE

 

JOINT WELFARE / BENEFITS ADMINISTRATION COMMITTEE

 

PREAMBLE

The purpose of this Agreement and of this Committee is to advise the Employer and to facilitate communication between the Employer and the Ontario Public Service Staff Union and the Administrative Staff Union on the subject of all welfare plans as designated by the collective agreements, namely Basic Life insurance, Supplementary Life Insurance, Extended Health Insurance, Long Term income Protection Insurance, Short Term Sick Leave, Dental Plan and such other negotiated benefits as may, from time to time, be included in the Group Insurance Plan.

It is understood that the Group Insurance benefits to be provided to the employees and the cost sharing arrangements shall be set out in any applicable collective agreement or arbitration award, and the matters for consideration and/or determination by this Committee shall be only set out in these terms of reference

 

ARTICLE 1 – AUTHORITY

This Agreement is made in accordance with Article 6.03 of the Collective Agreement between OPSEU and the OPSSU and Article 6.03 of the Collective Agreement between OPSEU and ASU.

 

ARTICLE 2 – DUTIES OF COMMITTEE

The duties of the Committee shall consist of the following:

  1. The Committee will determine the full and complete meaning of “Joint Welfare/Benefits Administration Committee”;

  2. The Committee will review all benefit claims denied by the carrier and brought to the attention of the Committee and will make an appropriate and considered recommendation to the Employer;

  3. To work with the OPSEU Joint Trust Benefit Fund and the carrier for the purpose of:

        1. Dispute resolution of benefit claims;

        2. Administration of the plan;

        3. Selection of new carriers, which includes compliance with OPSEU’s superior benefit language.

  1. Development of the specifications for the public tendering of any and all benefits which may be included, or required to be included, in the Committee’s opinion, in the Group Insurance Plan. The specifications for tender will describe the benefits to be provided, the cost sharing arrangement between the employer and its employees, the past financial history of the insurance plans, the employee data, the format for the retention illustration for each coverage, and the financial reporting requirements. Tenders may be reviewed by the committee. This shall not preclude the present carrier from arranging reinsurance as may be necessary.

  2. Consideration and examination of all tenders submitted in response to the specifications for tender and preparation of a report thereon;







  1. The right to recommend to the Employer the selection of the insurance carrier or carriers to underwrite the Group Insurance Plan. The basis for recommendation of an insurance carrier(s) will include the ability of the carrier(s) to underwrite the plan, compliance of the carriers’ quotation with the specification for the tender, the carrier’s service capabilities, and the expected long term net cost of the benefits to be provided.

  2. Review of the semi-annual financial reports on the Group Insurance Plan.

These statements will include paid premiums, paid claims, changes in reserve requirements for open or unreported claims, incurred claims, the retention elements of commissions, taxes, administrative expenses, contingency reserve charges and interest credits on claim or other reserves. The insurance carrier(s) will also be required to report on the level and method of administering any deposit accounts.

 

ARTICLE 3 – WORK UNIT AND EMPLOYEES COVERED

This covers all bargaining unit employees in the Union as defined in Article 2.01 of the respective Collective Agreements between OPSEU and the OPSSU and ASU and all former employees of these bargaining units entitled to benefit provisions.

 

ARTICLE 4 – COMPOSITION OF COMMITTEE

The Committee shall be composed of up to three (3) representatives from the Employer and from the OPSSU, and two (2) representatives from the ASU. At meetings of the Committee, an additional resource person to provide technical advice and counsel may accompany each party.

Alternates may replace regular representatives who are unable to attend meetings.

It is further understood that a responsible representative from the benefit carrier shall be present at the request of any party.

 

ARTICLE 5 – TIME OFF

The Union Committee members shall be excused from duty, with no loss of pay or credits, when required to attend Committee meetings. Reasonable time off will be granted for Union team members to attend caucus meetings in preparation for committee meetings or for matters arising from committee meetings. Additional reasonable time off may be granted in special circumstances upon request of any party.

 

ARTICLE 6 – MEETINGS

Meetings shall be held not more frequently than once every month at times and places mutually agreed upon. Notwithstanding, any party may formally request that a special meeting be held, and providing all parties concur, the meeting shall be convened within fourteen (14) days of the formal request.

A quarterly review meeting of the financial experience under the welfare plans as outlined in these Terms of Reference will occur.

The Committee shall request the insurance carrier(s) to provide such information for the Committee’s consideration as may be required by either the Employer, OPSSU or ASU.

The parties will produce one (1) set of minutes, signed by all three (3) parties, for each committee meeting, prepared on an alternating basis.

 

ARTICLE 7 – UNRESOLVED ITEMS

If the Committee fails to agree, the Employer in consultation with the Committee shall resolve all such disputes. OPSEU recognizes that nothing in these terms of reference in any way diminishes the rights of OPSSU/ASU and their members under their respective Collective Agreements.

 

ARTICLE 8 – TERM

This Agreement shall remain in force and effect for one (1 year from the signing and can be renewed for a further period of one (1) year annually, unless a party notifies the others in writing, within a period of ninety (90) days prior to the expiration date, that it desires to amend or cancel this Agreement.

 

Terms of Reference:

CENTRAL JOINT HEALTH & SAFETY COMMITTEE

 

The parties hereto agree to continue to meet relative to matters of mutual concern in the area of Health and Safety.

These meetings shall occur once every three months or more often if required by one week’s written notice by either party. The joint committee shall consist of an equal number of Employer and Employee representatives, not to exceed three members from each party, the chairperson being selected by the committee. The committee will operate in accordance with Section 8, sub-sections 5 through 14, inclusive, of the Occupational Health and Safety Act.

The committee will ensure accurate minutes are kept, as provided for in the Act, and will post them in the workplace, and further, will send these minutes to the Secretary for distribution.

 

TERMS OF REFERENCE:

The Chairperson shall be responsible to ensure that a written report is made to each Executive Committee Meeting and to each General Membership meeting concerning their activities and shall maintain a central file in the Union office of all activities, correspondence, etc.

The committee will access the EERC Committee on issues not directly covered by legislation.

The committee will be responsible for developing contractual Health and Safety proposals prior to the demand setting meeting, i.e. to the President’s Committee as per Negotiating Procedures.

The Chairperson will be responsible for presenting Health and Safety grievances to the Grievance Committee and will be obliged to perform the same functions as a steward in regards to grievance investigation and documentation.

The Chairperson will be responsible for assessing what training will be necessary for all members of the committee and making recommendations to the Executive through the President re: same.

 

Terms of Reference:

PENSION TRUST / SEVERANCE COMMITTEE

 

This Committee shall be responsible for developing negotiations proposals on pension and severance issues.

The Committee shall ensure that membership queries re pension and severance matters are responded to in a timely fashion.

The Committee shall report quarterly on pension matters to the membership and inform in general terms re the activities of the trustees and the Committee. The Committee may report more frequently as circumstances dictate.

The Chairman of the Committee shall report to the Executive Committee on an overall basis no less than three times per year.

The Committee shall keep minutes of all meetings and keep records of all its activities. A copy of all minutes shall be sent to the secretary of OPSSU.

The Committee shall produce and update as necessary a pension booklet for the membership which explains the plan.

The Committee shall report on the performance of the pension fund on a semi-annual basis to the membership.

Trustees of the Pension Plan, ten days prior to a General Membership Meeting, shall produce and distribute a comprehensive, itemized list of all expenses and the total cost of operation of the Pension Committee.

 

Terms of Reference:

CONSTITUTION COMMITTEE

ARTICLE 1 – PURPOSE

The purpose of this Committee is:

  1. to review all proposed amendments to the OPSSU Constitution or Policy;

  2. to develop policy proposals and/or Constitution amendments referred to the Committee by the Executive or a General Membership Meeting of OPSSU;

  3. to present and make recommendations to the Executive and the General Membership on all amendments to the Constitution.

  4. to maintain the OPSSU Policy and Procedures manual.

 

ARTICLE 2 – COMPOSITION OF COMMITTEE

The Committee shall be composed of three members to be elected for a two (2) year term at a General Membership Meeting. Two (2) members are to be elected in odd years and one (1) is to be elected in the even years.

The three members may not hold any position on the Executive Committee.

Members shall be elected by a plurality of the members present and voting at the meeting.

The committee members shall select the Chair of the Committee.

 

ARTICLE 3 – TIME OFF

The Committee Chair shall notify shall provide the Secretary of OPSSU with as much notice as possible prior to any meeting of the amount of time to be requested from the Union banked time and of the necessity for rooms to be billed back to the Union.

 

ARTICLE 4 – MEETINGS

Meetings shall be called as necessary and/or when the Committee has received Constitutional Amendments.

 

Such meetings shall be scheduled so as to allow sufficient time for review of the Committee’s recommendations by the Executive.

 

ARTICLE 5 – PROCEDURES

  1. Any proposed amendments to the Constitution shall be referred to the Constitution Committee upon receipt from the membership or any OPSSU Committee.

  2. Any resolution passed by the Executive Committee that may affect the Constitution shall be submitted to the Constitution Committee for review.

  3. The Chair of the Constitution Committee shall present all submissions dealt with by the Constitution Committee to the Executive of OPSSU, as far in advance as practical of the General Membership Meeting where the recommendations of the Constitution Committee shall be considered.

  4. Where the General Membership has referred a matter back to the Constitution Committee, #3 above shall not apply.

  5. Any new or amended policies and procedures or committee Terms of Reference that have been approved by the membership shall be submitted to the Constitution Committee for inclusion in the Policies and Procedures Manual.

 

 

Terms of Reference:

COMMUNICATIONS COMMITTEE

 

PREAMBLE:

During the OPSSU strike (September 03-25, 1996), a daily newsletter was created as a vehicle to inform the membership of picket line news and events from around the province. This newsletter, known as “WALK/TALK”, was also made available to the membership of OPSEU and the wider labour movement upon request.

After the strike ended, the OPSSU Executive authorized the creation of a permanent Union newsletter and the formation of a Newsletter Committee.

 

PURPOSE:

The mandate of the Committee and the Newsletter shall be to provide:

    1. news of OPSSU current events and activities

    2. technical updates and share expertise on Union issues

    3. a forum for general discussion

    4. brief updates, advisories or bulletins from OPSSU Committees

    5. editorial and opinion pieces

    6. a Letters to the Editor feature

    7. pertinent stories and anecdotes of interest to members

 

COMMITTEE COMPOSITION AND DUTIES:

  1. The Committee shall be composed of six (6) OPSSU members in good standing, as follows:

    1. an Editor, appointed by a vote of the Executive Committee;

    2. one member from the Executive Committee, elected by the Executive Committee; and

    3. Four (4) members-at-large, elected at a general membership meeting, or appointed by the Executive Committee as required.

  2. The term of the Committee shall be two years.

  3. The Editor shall be the Chair of the Committee.

 

  1. The Committee shall be responsible for:

  1. the preparation and production of the OPSSU official newsletter or bulletins

  2. the solicitation of material from the membership and other sources

  3. the proof-reading and vetting of newsletter content

  4. the distribution of the newsletter

  5. maintaining the website

  6. maintaining ethical standards of publication

 

PUBLISHING CRITERIA:

  1. The newsletter will be published as required, and must be clearly identified as the “Official Publication of the Ontario Public Service Staff Union”.

  2. Distribution will be directly to the membership at Head Office and the Regional Offices, to others upon request, and will be available through the web site.

  3. The newsletter may also be made available for wider distribution via approved labour Bulletin Board Systems (BBS) or the Internet.





  1. The Committee is authorized to reject any material or information, which is deemed to be unsuitable for publication.

  2. OPSSU, on behalf of the newsletter, will retain a membership in the Canadian Association of Labour Media (CALM)

  3. Funding for normal publishing expenses will be drawn from the general funds of OPSSU.

 

Terms of Reference:

JOINT ACCOMMODATION COMMITTEE

 

COMPOSITION

The Accommodation Committee shall be a bipartite committee consisting of OPSSU and employer representatives as follows:

 

OPSSU Composition

The OPSSU members on the committee shall be comprised of:

  1. Worker with disability/and or one OPSSU representative chosen by the worker to participate in the committee at the worker’s option.

 

  1. A standing committee of three comprised of one member selected by and from each of the following:

  1. The Benefits Committee

  2. The Health & Safety Committee

  3. The Steward Body

 

Employer Composition

The employer members on the committee shall be comprised of three representative, one of whom shall be the worker’s Supervisor or Coordinator.

 

RESPONSIBILITIES

The responsibilities of the joint Accommodation Committee shall be determined by the committee on a case by case basis for every individual worker who identifies a need for accommodation to perform her or his pre-injury/illness job, or comparable or suitable alternate meaningful work.

 

The committee’s responsibilities shall include but are not limited to the following:

  1. to identify and co-ordinate appropriate job accommodations to facilitate successful return to work of workers with disabilities;

  2. to develop and implement individual Modified/Return-to-Work Programs;

  3. to monitor a worker’s progress in a Modified/Return-to-Work Program and initiate changes as required;

  4. to create and monitor necessary work and work environment modifications in accommodating a worker with a disability;

  5. to meet on a regular basis to follow-up on progress and assess the need for any changes in restrictions or duties being performed;

  6. to determine the modifications to a worker’s pre-injury/illness job which are necessary to accommodate the worker;

  7. to determine comparable and suitable alternative meaningful work;

  8. to select an appropriate assessment process and designate appropriate professional consultants to conduct such assessments;

  9. to oversee all assessments including physical demands analysis and functional ability assessments;

  10. to consult with the joint Health and Safety Committee for the conduct of a job hazard analysis and ergonomic assessments of the job modifications;

  11. to designate rehabilitation positions, light duty assignment and work-hardening accommodations;

  12. to provide information and consultation to co-workers about Modified/Return-to-Work Program plans to ensure a positive and supportive environment for workers with disabilities;

  13. to liaise with the Worker’s Compensation Board, insurance carrier, and treating physician, as appropriate;

  14. to ensure all relevant medical information is obtained and integrated into a Modified/Return-to-Work Program;

  15. to ensure all relevant medical information acquired remains confidential;

  16. to address concerns expressed by the Union, members and/or management.

 

TIME OFF

The OPSSU committee members shall be excused from duty, with no loss of pay, regular premium rates or credits, when required to attend committee meetings and for matters arising from committee meetings. Reasonable time off will be granted for OPSSU committee members to attend caucus meetings in preparation for committee meetings. Additional reasonable time off may be granted in special circumstances upon request of any party. Travel expenses incurred by OPSSU committee members to attend meetings shall be borne by the employer and caucus meetings shall be borne by OPSSU.

 

MEETINGS

Committee meetings shall be held quarterly and on an ad hoc basis as frequently as necessary to implement and achieve a successful accommodation for every individual worker with a disability that identifies a need for accommodation. Any party may formally request that a meeting be held, and providing that the majority of committee members concur, the meeting shall be convened no sooner than five (5) days and no later than fourteen (14) days after the formal request. Notwithstanding the above, the employer recognizes its responsibility to give the committee reasonable notice regarding all workers with disabilities who require accommodation, and to keep the committee currently aware of the ongoing status of all workers with disabilities who require accommodation.

 

DISPUTE RESOLUTION

If a dispute cannot be resolved by this committee, the employer recognizes that nothing in these terms of reference in any way diminishes the rights of OPSSU and its members under the OPSSU Collective Agreement and/or other appropriate legislative procedures.

 

 

Terms of Reference:

PAY EQUITY MAINTENANCE COMMITTEE

 

PURPOSE

The purpose of the Committee is to monitor the need for pay equity maintenance; determine the process to evaluate all jobs; make required comparisons; determine adjustments and execute the plan in accordance with the Pay Equity Act.

 

TERMS OF REFERENCE

The Committee shall maintain the Pay Equity Plan with the Employer.

The Committee shall meet with the Employer as needed to evaluate current and new positions for Pay Equity within the current plan.

The Committee shall meet on its own to discuss and act upon ongoing or arising pay equity issues.

The committee will enter into negotiations with the employer with regard to the workings of the joint committee.

 

MEMBERSHIP

The Pay Equity Maintenance Committee shall consist of six (6) members.

There shall be five (5) elected members of the Pay Equity Maintenance Committee. These members shall be comprised of:

  1. Two (2) permanent staff member from the Protech group of employees,

  1. one to be elected in even numbered years representing Head Office staff, and

  2. one to be elected in odd numbered years representing Regional office staff;

  1. Two (2) permanent staff member from the Support group of employees,

  1. one to be elected in even numbered years representing Head Office staff, and

  2. one to be elected in odd numbered years representing Regional Office staff;

  1. One (1) person from the Service group of employees in even numbered years;

  2. The President shall serve as an ex-officio and the sixth (6th) member of the committee;

  3. No two elected or appointed committee members may represent more than one classification.

 

The term for each of these elected positions is two (2) years.

 

The Chairperson is to be elected by the Committee members, and will continue to chair for the rest of their elected term on the committee, or two (2) years, or their resignation as Chairperson, whichever comes first.

 

DUTIES OF THE COMMITTEE

  1. The Committee shall meet at least twice a year and more often as needed in order to fulfill its duties.

  2. The Committee shall keep minutes of all Committee meetings, and keep records of all of its activities.

  3. The Chairperson of the Committee shall report to the Executive Committee no less than two (2) times per year, and more often as necessary.

  4. A Committee report shall be reported to each General Membership Meeting (GMM)

  5. The Committee will negotiate pay equity-related matters with the Employer subject to the final endorsement of the OPSSU Executive;

  6. The Committee will identify predominantly female and predominantly male job classifications;

  7. The Committee will post the results of the identification of job classifications, well as the methodology for evaluation.

  8. The Committee will evaluate the job classifications

  9. The Committee will identify changed circumstances; and,

  10. The Committee will post results of the plan.

 

FUNDING

The Pay Equity Maintenance Committee shall present a proposed budget to the OPSSU Treasurer, one month before the end-of-year General Membership Meeting for inclusion in the general budget submitted to the OPSSU membership for approval. (June 2013)

 

Terms of Reference:

SOCIAL AND RECREATION COMMITTEE

 

PURPOSE

The Social and Recreation Committee is to plan and execute events that will bring the membership and their families together socially and to acknowledge special occasions in the life of an OPSSU member.

 

TERMS OF REFERENCE

The Committee shall plan social events for the membership of OPSSU.

The Committee shall acknowledge special occasions in the life of an OPSSU member with a card sent by the Social and Recreation Committee from all staff.

Special events shall be planned and funded by the Social and Rec Committee for:

  1. all members of OPSSU;

  2. Head Office Staff;

  3. Regional Office Staff;

  4. Joint management/ASU/OPSSU/Excluded.

Types of events might include:

  1. Christmas parties (adult and children’s)

  2. Picnic;

  3. Night at the Races;

  4. Retirement/Long Service.

 

JOINT EVENTS

OPSSU’s membership is willing to participate in and co-operate on a joint committee to organize social functions and to include the following groups: management, excluded, ASU and OPSSU.

Each group shall send one member to plan and organize joint functions.

Joint functions shall be organized by working representatives of all four groups.

Example of joint functions would be the Christmas parties.

Joint functions shall be supported financially by all four groups.

Funding for joint initiatives should be equal or based on ratio of membership.

 

MEMBERSHIP

A Committee of six (6) members is to be elected by the membership of OPSSU.

  1. 3 members {2 from Head Office /1 from Regional Offices} elected in the even years

  2. 3 members {1 from Head Office / 2 from Regional Offices} elected in the odd years

  3. Chairperson of the committee is to be elected by the committee.

 

DUTIES OF COMMITTEE

The Committee shall meet at least twice a year and more often as required.

The Committee shall keep minutes of all committee meetings and keep records of all of its activities.

The Committee shall keep financial records.

The Chairperson shall report to the Executive Committee no less than three times a year.

The Committee Report and financial statement shall be reported to each membership meeting.

 

FUNDING

Social and Recreation Committee is to be given a renewable petty cash fund which is renewable upon production of receipts, for the purposes of purchasing stamps and cards to send to members in recognition of events in their lives.

For all other events, the Social and Recreation committee is to present a proposed budget for approval by the Executive in advance of any firm commitment to any expenditure.

Upon conclusion of a funded event, the social and recreation committee shall present a detailed financial account to the Executive committee of all expenditures associated with the event.

 

 

Terms of Reference:

EDUCATION COMMITTEE

 

1. The focus of the committee is to provide union orientation information and OPSSU welcome materials to Stewards for new members. The committee shall also organize union education opportunities for members.

 

        1. The committee shall meet twice per year and more as necessary within the budget funds and utilizing current technology.

 

3. The committee shall consist of five members elected from the membership at a General Membership election meeting every two years.

 

4. The Committee shall establish an annual budget and submit to the Executive Committee for consideration.

 

5. The Chairperson of the committee shall report to the Executive Committee on a regular basis but no less than twice per year.

 

The Committee shall keep records of all meetings and activities.

 

Terms of Reference:

EXECUTIVE APPEALS COMMITTEE

 

Pursuant to the provisions of the OPSSU Grievance Procedure in the OPSSU Policies and Procedures Manual, the following shall serve as the Terms of Reference for Executive Appeal Committee (“Appeal Committee”):

  1. The Appeal Committee shall be comprised of three (3) members of the OPSSU Executive Committee who are also not members of the Grievance Committee, as decided by a simple majority vote of the Executive Committee.

  2. The Appeal Committee:

    1. shall function as the means of appeal for a grievor who disputes a decision of the Grievance Committee.

    2. will receive a presentation from the grievor and/or Steward, as well as from a member of the Grievance Committee.

    3. is empowered to review all documents and correspondence relevant to the grievance under appeal, and to interview any grievors, members of the Grievance Committee and/or counsel who may have information relevant to the grievance under appeal.

  3. The jurisdiction of the Appeal Committee is limited solely to either upholding or reversing the original decision of the Grievance Committee regarding the grievance under appeal.

  4. The decision of the Appeal Committee shall be by simple majority vote and shall be final, in accordance with the Constitution.

 

The Appeal Committee will endeavour to complete the investigation/interview process and render its decision within thirty (30) calendar days of the appeal being filed. A reasonable extension of this timeframe may be granted by a simple majority vote of the Executive Committee.

 

 

Terms of Reference:

OPSSU MEMORIAL SCHOLARSHIP COMMITTEE

 

Purpose:

The purpose of the committee is to gather a list of applicants eligible to partake in the annual draw for the Memorial Scholarship of $2,500; and to conduct the draw, of up to five (5) applicants, at the Year End General Membership Meeting where the $2500 will be divided equally amongst the successful applicants.

The committee shall accept applications from son(s)/daughter(s) of any Permanent OPSSU member and those covered by Article 10.06 of the current Collective Agreement.

Scholarship Terms:

Applicants must be attending a post-secondary institution for the specified school year.

Only one (1) application per child per year shall be accepted and proof of enrollment in post-secondary institution will be required.

Previous recipients of the Memorial Scholarship are not eligible to apply for any future Memorial Scholarship funds.

The call out for applications will occur after Canadian Thanksgiving weekend and at least 2 weeks prior to the Year End General Membership Meeting.

The Committee:

The committee shall consist of two (2) members to be elected in the same election year, to serve a two (2) year term.

 

 

 

Terms of Referenc:

OPSSU HARDSHIP COMMITTEE

 

All applications for hardship payments are made to the committee (at an email address to be created). Members will have to be without pay for at least two (2) weeks to access the fund.

 

  1. All members of the bargaining unit shall have access to the fund if they meet the criteria of “hardship” as agreed to by the hardship committee which shall be composed of three (3) members of the executive committee to be elected by the executive.

 

  1. All of the funds for the hardship committee fund will be held in a separate budget line for the sole purpose of hardship support

 

  1. Fund will be a maximum of $10,000 per year.

 

  1. To be eligible to receive assistance from the hardship fund, a member must be in good standing.

 

  1. The executive committee will hold final authority to approve payments which shall be made in a consistent manner that is not discriminatory or in bad faith.

 

Hardship funds will only be paid to members who find themselves unable to work and do not receive full benefits from their employer the Ontario Public Service Employees Union (OPSEU)

 

Payments

 

The hardship fund will endeavor to operate within is means. Should it become necessary to increase the $10,000.00 budget it will require a two thirds (2/3rds) majority recorded vote by OPSSU’s Leadership. (For clarity, the OPSSU Leadership includes the executive, all elected stewards and the elected chairs of all OPSSU active member committees)

 

Each application will be dealt with on a case by case basis having regard to the balance of the fund, the number of members affected and the likely length of the time members will be in need of support.

 

The fund will pay no more than $500 per week to any individual member to a maximum of $2,500 in a twelve month period.

 

Amendments to the Terms of Reference

 

Amendments to these Terms of Reference can only be made by a motion at a general membership meeting.

 

 

Terms of Reference:

ONTARIO PUBLIC SERVICE STAFF UNION RETIREES GROUP

 

Article 1 – Preamble:

 

The Ontario Public Service Staff Union (OPSSU) appreciates and acknowledges the commitment and expertise of retired members of OPSSU. To that end, OPSSU also recognizes that active members of OPSSU would benefit from the collective historical knowledge retirees can contribute to assist decision making in several different areas, such as, bargaining, grievance and arbitrations and mobilizing.

 

 

 

Article 2 – Purpose:

 

There shall be a Retired Members’ Group within OPSSU, known as the OPSSU Retirees Group (ORG). The purpose of the ORG is to bring together retired members to discuss issues of particular concern and interest to ORG members, to formulate recommendations for action by OPSSU, and to provide support and assistance to OPSSU.

 

Article 3 – Membership:

 

In accordance with Art. 3.08 of the OPSSU Constitution, an OPSEU employee who retires from an OPSSU represented position and who is granted honorary life membership, is entitled to become and remain a member of the OPSSU Retirees Group (ORG) subject to these Terms of Reference, on submission of the OPSSU Retiree Group Registration Form to the OPSSU Membership Secretary.

 

Members of the ORG who accept a work assignment with OPSEU in a position represented by OPSSU will be deemed to be temporarily removed from the ORG. The member shall resume membership in the ORG once the assignment is completed. Members of the ORG who accept a work assignment with OPSEU in a non-OPSSU represented position will be removed from the ORG and will be deemed to have left the ORG when their assignment commences.

 

To remain a member in good standing of the ORG each member must uphold the OPSSU Constitution, do no harm to any member of the ORG, or to any member of OPSSU or to the Union (OPSSU).

 

OPSSU Retiree Group Registration Forms submitted by retirees who have been granted honorary life membership shall be provided to the Executive of the ORG by the OPSSU Membership Secretary. The information will only be shared within the ORG as necessary to fulfill its undertakings consistent with these Terms of Reference.

 

Article 4 – OPSSU Retirees Executive and Election Procedures:

 

OPSSU Executive shall designate a member of the OPSSU Executive who will act as a liaison between the OPSSU Executive and the ORG Executive.

 

Elections shall normally take place in even numbered calendar years beginning in 2018.

 

Executive Officers shall be elected from and by the members of the OPSSU Retirees Group. The position of Chair, Vice-Chair, Secretary and one (1) Member-at-large shall be elected to serve a two (2) year term.

 

The OPSSU Executive Liaison shall receive the nominations and ballots, and shall be responsible for counting ballots, announcing the election results and destroying ballots if there are no challenges within 3 days of announcing the election results.

 

The ORG Executive will designate a member of the ORG as Scrutineer. Election results will be based on plurality, i.e. the retiree receiving the most ballots is deemed elected. In instances where there is a tie, the tied candidates will be advised of the tie and the outcome will be determined by a neutral process, e.g. tossing a coin, unless all but one of the tied candidates chooses to withdraw.

 

The call for nominations shall be sent electronically to the OPSSU Retirees Group no later than 45 days before the last GMM in an election year. The nomination period for the positions of Chair, Vice-Chair and Secretary will be no less than 7 days and close no later than 38 days prior to the GMM. Nominations shall be emailed to the OPSSU Executive Liaison. The ballots will normally be distributed by email to the members of the ORG within 7 days of the close of nominations, to be returned by email to the OPSSU Executive Liaison no later than 10 days after issuance. The announcement of the election results for Chair, Vice-Chair and Secretary will normally be announced by email from the OPSSU Executive Liaison within 7 days of the closure of balloting.

 

The call for nominations to the position of Member-at-Large will accompany the announcement of the results of elections of Chair, Vice-Chair and Secretary. Nominations must be received from members of the ORG no later than 5 days after the call. Nominations shall be emailed to the OPSSU Executive Liaison. Ballots will normally be distributed by email to the members of the ORG within 5 days of the close of nominations, to be returned by email no later than 5 days after issuance. In instances where there is a tie, the tied candidates will be advised of the tie and the outcome will be determined by a neutral process, e.g. tossing a coin, unless all but one of the tied candidates chooses to withdraw. The announcement of the elected Member-at-Large will be announced by email from the OPSSU Executive Liaison within 7 days of the closure of balloting.

 

A vacancy that occurs mid-term shall normally be filled by election prior to the next GMM.

 

If an ORG Executive member accepts a work assignment, with OPSEU in any bargaining unit or excluded position, the member must resign from their position on the ORG Executive.

 

Article 5 – Duties / Responsibilities:

 

The Chair shall:

  • Chair meetings of the ORG.

  • Prepare the agenda for ORG meetings.

  • Communicate with the members of the ORG.

  • Act as the spokesperson for the ORG within OPSSU.

  • Report on activities of the ORG to the OPSSU Executive Committee and at each regular General Membership Meeting of OPSSU.

 

The Vice-Chair shall:

  • Perform the duties of the Chair in the absence of the Chair or when called upon by the Chair.

 

The Secretary shall:

  • Keep a full and impartial record of the proceedings of all meetings of the ORG Executive and the ORG.

  • Be responsible for the distribution of communiqués of ORG meetings to all members of the ORG.

  • Be responsible for the publication and distribution of notices of all meetings of the ORG.

  • Perform other duties as may be assigned by the Chair

  • Keep copies of all distributed communication.

 

Member-at-Large shall:

  • Assume responsibility of an Executive member, except the Chair, if they are unable to fulfill their duties.

  • Perform other duties as may be assigned by the Chair.

 

Article 6 – Meetings:

 

Where the ORG Executive determines that a meeting is necessary, the ORG shall meet on the afternoon of the day immediately preceding an OPSSU General Membership Meeting.

 

The agenda for the OPSSU Retirees Group will be prepared by the Chair and will normally be shared with members of the ORG no less than seven (7) days in advance of the meeting. Members of the OPSSU Retirees Group may submit items for inclusion on the agenda at least twenty-one (21) days in advance of the ORG meeting.

 

Members of the OPSSU Executive Committee may attend the OPSSU Retirees Group meeting.

 

The Executive of the ORG may meet using telephone conference call, as approved by the OPSSU Executive in advance of the ORG meeting as necessary.

 

The ORG Executive will make regular reports to the Executive Committee of OPSSU. Such reports may either be in writing to the Executive or, by attendance of the ORG Chair at the OPSSU Executive Committee meeting subject to the OPSSU Executive pre-approval of necessary expenses.

 

All questions of parliamentary nature shall be decided by Roberts Rules of Order.

 

Article 7 – Expenses:

 

OPSSU members enjoying only statutory rights shall not be entitled to any expenses; this does not include retirees or Membership Development Trainees (MDTs).

 

Attendance by ORG members at ORG meetings and/or OPSSU General Membership Meetings is voluntary.

 

To minimize the cost to OPSSU as a result of any ORG member attending both the OPSSU GMM and the ORG Meeting, ORG meetings will be scheduled on the afternoon preceding OPSSU General Membership meetings

 

There shall be no expenses reimbursed to a member of the ORG who attends an ORG Meeting and who elects not to attend an OPSSU GMM.

 

Expenses reimbursed to an ORG member who attends an ORG meeting can’t exceed expenses that would be reimbursed to attend the OPSSU General Membership Meeting only.

 

Article 8 – Funding:

 

In the event an ad hoc expense of the ORG Executive is proposed, it must be pre-approved by the OPSSU Executive.

 

Funding for any ORG activity such as, support for OPSSU bargaining, grievance and arbitrations and mobilizing, must first be pre-approved by the OPSSU Executive.

 

 

Terms of Reference:

THE EMPLOYMENT EQUITY/ HUMAN RIGHTS COMMITTEE

 

In addition to any other mandate, the members of the Employment Equity / Human Rights Committee shall serve as the members of the joint Union/Employer Employment Equity Committee found at Letter of Understanding #3 of the OPSSU-OPSEU Collective Agreement

 

Employment Equity

(a) The committee will meet regularly with the purpose of eliminating systemic barriers in employment, including in the selection, retention, promotion and training processes of OPSEU in order to ensure the full participation of traditionally under-represented workers, with a priority focus on addressing the barriers faced by racialized and Indigenous workers in employment;

(b) It is recognized that to address historical imbalances special measures may need to be developed in order to eliminate barriers faced by under-represented groups, especially racialized and Indigenous workers;

 

(c) It is further recognized that in order to fulfill its mandate, the committee will pursue necessary information including workforce data.

Promoting human rights, equity and racial justice

(d) As part of its mandate, the committee will promote principles of human rights and equity, specifically anti-racism and decolonization;

(e) The committee will promote inclusion of members in SSU, develop tools to ensure the SSU community fosters diversity, inclusion and racial justice; as well as, it will build solidarity with other like-minded organizations;

(f) The committee will study and make recommendations in relation to the Union’s policies and practices to try to ensure that these do not contribute to systemic discrimination and inequity, and will advocate that the Union will further the goals of equity and racial justice in all its activities;

(g) The committee will deliver training on anti-racism including anti-black racism and decolonization training in accordance with the committee budget. (Dec 1, 2018)

 

 

 

GENERAL POLICIES AND PROCEDURES

 

OPSSU POLICIES

 

Advances:

Members who have received an advance for authorized union business shall submit an expense claim with appropriate receipts within thirty (30) days of the meeting. Where a member has an advance that has not been reconciled within 90 days of the meeting for which it was issued, and where that advance remains outstanding 30 days before the next meeting, that member may not receive any additional advances or expense payments until such time as all of their outstanding advances have been reconciled. Any member who maintains an advance balance which is not fully reconciled within six (6) months of the General Membership meeting to which it was reported, may be subject to action by OPSSU to recover the funds. (June 2018)

Allowable Expenses – Members

Accommodation:

 

Effective January 1, 2015:

OPSSU shall pay accommodation, taxes and parking to a maximum of the rates charged at the meeting Hotel when members legitimately require rooms but choose not to stay at the hotel where the OPSSU function is taking place.

Where the event takes place outside a hotel and accommodation is required, affected members will be reimbursed for reasonable and customary accommodation expense.

A member who lives beyond forty (40) km from the location of the meeting/function shall be allowed overnight hotel accommodation and who could not reasonably be expected to arrive on time for the meeting/function if they travel the day of the meeting shall be reimbursed for hotel accommodation the night prior to the meeting/function at the rate of the facility where the event or function is scheduled or another facility approved by the Union. A member who lives within forty (40) km shall be entitled to reimbursement for public transportation or kilometer at the approved rate for use of a personal vehicle.

Notwithstanding the above:

(a) members who live within forty (40) kilometers and who attend the year-end holiday dinner and/or party shall be entitled to be reimbursed for hotel accommodation to a maximum of the rate charged by the meeting hotel provided they also attend the year-end General Membership Meeting.

(b) members who do not attend the year-end General Membership Meeting but who attend the annual year-end dinner and/or party and/or Children’s Party will not be entitled to reimbursement for hotel accommodation Saturday night.

(c) the Executive will consider requests from member who live more than forty (40) kilometers from a meeting/event to be reimbursed for hotel accommodation the night of any OPSSU meeting/function (e.g. Saturday night for a meeting/event during the day on Saturday) on a case-by-case basis having regard to the time the meeting/event is adjourned, the mode of transportation, the distance from their home and any health and safety issues.



Attendant Care:

Members requiring the services of an attendant for himself or herself, e.g. signer, etc., in order to participate in OPSSU events will be reimbursed for necessary costs.

 

Child/Elder/Dependent Care:

Claims shall be submitted on forms provided for Child/Elder/Dependent Care as follows:

  1. Members will be reimbursed for child/elder/dependent care be reimbursed up to the amount of minimum wage ($11.60 Oct 1, 2017) on production of a receipt signed by the child care provider. The reimbursement will exclude spouses, partner or other legal guardians per hour. The maximum family care claim for a 24 hour period is $278.40

  2. Members who bring children under the age of 10 will be entitled meal expenses, where meals are not already provided for by OPSSU, at the rates provided for below (June 2019)

Children’s Meals:

Breakfast: $7.00

Lunch: $10.00

Dinner: $16.00

Claims for these expenses should be described appropriately.

A meal allowance shall be paid:

  1. if on OPSSU business or on travel status prior to 8 a.m. may be claimed (June 2018)

  2. if meeting extends beyond 12 noon, luncheon may be claimed

  3. if meeting extends beyond 6 p.m., supper may be claimed

  4. out-of-town members may claim three meals per day plus the appropriate meal in transit.

Telephone:

One personal long distance call per day is to be allowed when a member is on OPSSU business.

Unlimited local phone charges and Long Distance credit card services charges are to be allowed when on OPSSU business.

OPSSU Executive and committee members are authorized to make unlimited OPSSU business long distance calls within Ontario when on authorized OPSSU Business.

 

Travel:

  1. Out of Town

Where a member travels from their home location to attend an OPSSU meeting/event, mileage, where appropriate, shall be reimbursed at the rate of $.40 per kilometer from home or point of departure, to the location of the meeting/event, whichever is closer.

Where an expense is incurred and a member travels from their home location to attend an OPSSU meeting/event, mileage, where appropriate, shall be reimbursed at the rate of $.40 per kilometer from home or point of departure, to the location of the meeting/event, whichever is closer. An additional $0.5 (carpool rate) may be claimed for each member driven, other than themselves, for the purposes of participating in an OPSSU event/meeting. When claiming for the carpool rate, the member shall list which members they provided transport, the passengers address and the kilometers driven with their passenger(s). (June 2019)

Either mileage or fare by an appropriate public carrier, whichever is less, will be paid. Members are to take advantage of seat sales and reduced air rates whenever possible and shall give consideration to the most economical means of travel. In the event that there is a cancellation by a member for a justified and legitimate reason, OPSSU will pay the fare.



  1. In Town

Use public transportation where possible. Mileage where necessary shall be paid at the rate of $.40 per kilometre.

Reasonable taxi expenses within Toronto shall be paid with receipts.

Parking, where required, shall be paid with receipts.


Room Service:

During negotiation sessions, food and refreshments to be paid for by someone out of their own pocket and later submit a separate expense for it.

 

 

MISCELLANEOUS POLICIES

 

Negotiating Team

 

  1. Negotiating team expenditures shall be kept separate insofar as recording is concerned and shall be reported regularly to the Executive Committee and a report of all expenses associated with each round of bargaining be prepared and distributed to the Ratification Meeting.

  2. Where the Negotiating Team is considering action that would result in extraordinary costs associated with bargaining (e.g. consultant’s expenses, etc.) the President will be consulted for direction and prior approval by the Executive Committee is required before expenses are incurred.

 

Defence Fund

Should the Defence Fund fall below $1,000,000.00 the dues shall be increased to 2.5% (two point five percent) with the differences being deposited into the “Defence Fund” until the Defence Fund has returned to the $1,000,000.00 at which time the dues will revert back to 2% (two percent).

 

Credit Card

OPSSU shall have use of a credit card or credit based debit service such as Visa Debit.

The credit card or similar type purchase ability shall be named under OPSSU, as permitted by the financial institution, and the signatories shall be the authorities permitted on such financial credit account.

The use of such credit card or credit based debit service shall be solely for online and recurring purchases and for single purchases such as supplies.

The use of such credit card shall not be used for hospitality, food or beverage purchases.

The limit of the credit card or credit based debit service shall be limited to two thousand dollars ($2000) per month.

Where the issuance of a credit card is made to OPSSU, such card usage shall be preapproved by at least two signing authorities prior to an individual purchase.

Recurring expenses need be approved only for the initial commitment, and such agreement is to be reported to the executive at the following executive meeting.

 

Delegates to Conventions

Delegates to the CLC and any other Labour Body shall be elected by the General Membership and not appointed.

 

 

Dues and Assessments

The amount of dues as approved by the membership in accordance with Constitutional Article 4 is three (3%) percent as passed at the General Membership meeting on December 3, 2011. This level of dues will remain in effect up to the OPSSU meeting to ratify the renewal collective agreement and then revert back to two (2%) percent unless a 2/3 majority of those present and voting decide to extend the period for whatever period the body deems appropriate, as passed at the General Membership meeting on December 3, 2011.

 

The level of dues be raised temporarily to 2.5 per cent (two and one half per cent) from January 1, 2019 to December 31, 2019, after which it shall revert to 2 per cent unless a 2/3 majority of those present and voting at the December 2019 General Membership Meeting decide to extend the period for whatever length of time the body deems appropriate.

 

Grievance Committee Matters

  1. OPSSU shall retain a law firm, selected by the Executive upon recommendation of the grievance committee, to represent OPSSU in litigation matters.

  2. All Section 89 complaints and any correspondence distributed to the membership on behalf of the Executive shall be first brought to the Executive.

  3. The Grievance committee is to make a full report to the executive for a decision on hiring any lawyer in any OPSSU matter, before the lawyer is engaged.

  4. The grievance committee shall be permitted to hold meetings as it deems necessary to handle grievances and related business, recognizing the need for fiscal responsibility.

  5. Grievance meetings may be held by tele/video/web conference where possible.

Honorariums

Shall be paid to members presenting at arbitration as follows:

  1. $300 for day presenting of case at arbitration

  2. $200 for each additional day of hearing

  3. $150 for preparation of case for arbitration if late cancellation/settlement occurs and if considerable preparation has taken place.

 

Investments

The Treasurer is to invest Strike Fund Monies in high yield vehicles in amounts of $25,000 with different maturity. Same principle to apply to operating funds except that amounts be lower as appropriate.

 

MDTs and Temporary Staff

OPSSU President may only on own authority extend MDT’s/Temps if the position they are currently occupying is posted and not yet filled. All other requests for extension may be approved only through a vote of the LEC in person or by conference call.

 

Member Attendance at Executive Committee Meetings

  1. Any participation of members at an executive committee meeting would be subject to the majority vote of the executive committee.

  2. If a member wishes to make a submission to the executive committee, the steward must be apprised of the nature of the submission as far in advance as possible. The steward shall advise the President of the request and the nature of the submission. The President shall include a provision on the agenda for the member’s submission.

  3. Any decision arising from the submission will be made solely by the executive committee after the member’s presentation is completed and outside the member’s presence. The President will communicate the decision of the executive committee to the member.

  4. Submissions and/or presentations to the Executive Committee shall not relate to on-going bargaining matters or the Negotiating Team strategies.

 

Minutes of Meetings

A copy of the minutes of each EERC is to be sent to each Regional Office and Department of OPSEU as produced.

Copies of Executive Committee minutes shall be distributed to the Chairs of all Committees at the same time as they are distributed to the Executive.

 

Performance Evaluations

OPSSU’s position is that evaluations are only relevant to probationary staff and if the evaluation is unfair, it should be grieved for evaluations performed after one’s probationary period is over.

 

Retiree Appreciation

Annually at a general membership meeting, members who have retired during the year without recognition by OPSSU shall be honoured at a social event planned by the Social and Recreation Committee.



Retirement and Severance Gifts

Retirement/Severance Gifts are to be purchased as follows:

  1. 9 years gift valued at $50

  2. 10 – 24 years gift valued at $150

  3. 25 years + gift valued at $200

For retirement a plaque will also be presented.

 

Spending Authorities

  1. The Executive Committee of OPSSU is empowered to spend up to $5,000 per month without prior approval of the membership, but such expenditures must be reported to the following general membership meeting.

  2. The President of OPSSU is empowered to spend up to $2,000 per month without prior membership approval, but such expenditure must be reported to the following Executive Committee meeting.

  3. Consultants or resource persons, who may include current or former OPSSU members, may be contracted to perform duties outside of negotiation. Where costs for same are to be incurred, the hiring of these persons must be approved by the Executive Committee. The Executive will tender all contracts to up to three (3) providers and the contracting process shall be open and transparent.

  4. The President is empowered to approve any standing or ad hoc committee expenses that are associated with their operation.

  5. Where extraordinary or outside of the normal or excessive expenses are presented for payment, the Treasurer shall present such requests to the Executive Committee for approval.

  6. Cheques and electronic fund transfers shall reflect the meeting date and specific purpose for which the payment was made.

 

Tentative Settlements

All tentative settlements will have as a condition of settlement a deadline for both parties in respect to ratification and will further state a deadline for implementation.

 

Time Off Requests

  1. Only OPSSU President or Secretary are authorized to book time off from the OPSSU Union time bank.

  2. If given two weeks’ notice of the desire of a shift worker to attend a general membership meeting, the LEC will attempt to arrange relief, so that the member may attend the meeting.

 

Union’s Equipment

Borrowed OPSSU equipment must be returned in the exact condition when borrowed. The borrower is responsible for any cleaning necessary or for damage/repair. Items must be signed out.

 

Payment of Wages for Unscheduled Days

Where the employer will not pay them, the OPSSU shall pay wages to our elected representatives for attending meetings relative to their elected position when these meetings are held on non-scheduled work days, exclusive of weekends. The OPSSU shall request that the employer continue such representatives’ wages and bill the OPSSU back. This entitlement to wages shall be retroactive to January 1st 2014.

OPSSU will seek bill back from our employer to reimburse the salary and benefits of non-full-time employees up to a maximum of seven (7) hours a day to our elected representatives for attending meetings relative to their elected position when these meetings are held on non-scheduled work days, exclusive of weekends. Further, be it resolved that this entitlement to wages be retroactive to January 1, 2014. (May 2015)

 

Official Communications

Other than committee reports, all official communications to “all OPSSU members” must be authorized by the President, or designate, prior to distribution.

 

 

POLICY FOR DEFENDING, RECOGNIZING AND CONFRONTING SEXUAL HARASSMENT IN THE WORKPLACE

 

PREFACE

Despite progress toward gender equality and valuing diversity, sexual harassment continues to be a societal problem in all workplaces. Women constitute the overwhelming majority of the victims of sexual harassment. However, men also are victims of sexual harassment.

 

Although it is the employer’s obligation under the law to maintain a workplace free of sexual harassment, all of us—women and men, union and management—must work together to eliminate sexual harassment.

 

Workers must be empowered with knowledge about sexual harassment so they may assert their right to a workplace free of sexual harassment. You need not suffer sexual harassment in silence, imprisoned by the fear of speaking out. Every woman and man must be empowered to confront such abusive behavior in the workplace.

 

The purpose of this policy is to provide guidance to all OPSSU members on what constitutes sexual harassment, what you should do if it occurs, and what recourse is available to you and to present helpful information so that you may exercise your right to work in an environment free from sexual harassment.

 

By working together, helping each other and respecting each other, we can promote a cooperative and progressive work environment.

 

PURPOSE

The purpose of this Policy is to assist all Ontario Public Service Staff Union members who have/are experiencing sexual harassment in the workplace, and to provide procedures for reporting, investigating, and resolving incidents and complaints.

 

 

APPLICATION AND SCOPE

This Policy applies to all permanent and temporary bargaining unit members within the

Ontario Public Service Staff Union (OPSSU) who work for the Ontario Public Service

Employees Union (OPSEU) at all sites where business/union activities are undertaken and applies to all situations where these activities are connected to work during and outside of regular business hours at the workplace and away from the workplace. This includes:

  • activities on OPSEU premises

  • OPSSU/OPSEU assignments outside OPSEU premises

  • OPSSU/OPSEU related conferences, conventions, training sessions, or educationals

  • OPSSU/OPSEU related travel

  • OPSSU/OPSEU related social functions

 

WHAT IS SEXUAL HARASSMENT?

The key to what constitutes ‘sexual harassment’ is that it is, unwanted, unwelcome and unasked for behaviour of a sexual nature. Sexual harassment is a display of power intended to intimidate, coerce or degrade another worker.

 

We all have the right to work in a workplace that is free from harassment and one where all employees are treated with dignity and respect at all times.

 

Over the years sexual harassment has been misunderstood and mischaracterized. Sexual harassment’s main motive is the wielding of power.

 

Sexual harassers, and those who fail to address sexual harassment, send the message “she’s just trying to cause trouble”, and have stigmatized those who have tried to stop it as “not a team players”.

 

Sexual harassment is dehumanizing and divisive, and hinders us from achieving career goals, such as having control over our working lives and shaping our future, being treated fairly and working productively.

 

Harassment claims when two members are involved can be challenging to deal with. This issue is further complicated when there is an imbalance of power between the individuals.

 

Sexual harassment is an extremely serious and complex issue to navigate in the workplace.

It’s important to remember that complaints of this nature do not take place in a vacuum meaning this can literally wreak havoc in the lives of all who are involved, whether that involvement is direct or indirect.

 

Forms of sexual harassment (as per OHRC May 2013)

Sexual harassment can include:

  • sexual solicitation and advances

    • a poisoned environment (pornographic images in the workplace)

    • gender-based harassment (targeting someone for not following sex-role stereotypes)

    • violence

Examples of sexual and gender-based harassment:

  • demanding hugs

    • invading personal space

    • making unnecessary physical contact, including unwanted touching, etc.

    • using language that puts someone down and/or comments toward women (or men, in some cases), sex-specific derogatory names

    • leering or staring

    • making gender-related comments about someone’s physical characteristics or mannerisms

    • making comments or treating someone badly because they don’t conform with gender-role stereotypes

  • showing or sending pornography, sexual pictures or cartoons, or other sexually explicit material

    • sexually explicit graffiti, or other sexual images (including online)

    • sexual jokes, including passing around written sexual jokes (for example, by e-mail)

    • rough and vulgar humour or language related to gender

    • using sexual or gender-related comment or conduct to bully someone

    • spreading sexual rumours (including online)

    • making suggestive or offensive comments or hints about members of a specific gender

    • making sexual propositions

    • verbally abusing, threatening or taunting someone based on gender

    • bragging about sexual prowess

    • demanding dates or sexual favours

    • asking questions or talking about sexual activities

    • making an employee dress in a sexualized or gender-specific way

    • acting in a paternalistic way that someone thinks undermines their status or position of responsibility

    • making threats to penalize or otherwise punish a person who refuses to comply with sexual advances (known as reprisal).

 

Sexual harassment is against the law

The Human Rights Code prohibits reprisal or “payback” where a person raises issues or complains of sexual harassment. Reprisal includes such things as being hostile to someone, excessive scrutiny (for example, at work), excluding someone socially or other negative behaviour because someone has rejected a sexual advance or other proposition (such as a request for a date).

 

You do not have to object to the harassment when it happens for there to be a violation, or for you to claim your rights under the Code. You may be in a vulnerable situation and afraid to speak out.

 

Due to the power imbalance that often exists between the harasser and the person being harassed, and worries about what will happen if they object, people may go along with the unwelcome actions. But in these cases, it is still sexual harassment and it is still against the law.

 

GUIDELINES

This Policy is intended to respect the rights of all who may be involved in a complaint. The guidelines, requirements, and procedures contained in this Policy are designed to ensure that individuals feel as comfortable as possible in coming forward with a complaint, without fear of reprisal or retaliation. The procedures are also intended to protect the interests of alleged harassers or others who may be involved in the complaint process.

 

 

This Policy also ensures the steps in the grievance procedure or other complaint resolution
process(es) are followed as quickly as possible.

 

STEPS

If you are being sexually harassed:

1. Keep a record of incidents with date, times, locations, possible witnesses, what happened, your response. You do not have to have a record of events in order to make a complaint, but a record can strengthen your case and help you remember details over time.

2. If able, tell the harasser that their behaviour is unwelcome and ask them to stop.

3. Make a complaint. This complaint can be either informal or formal.

 

COMPLAINTS

 

Dealing with a Complaint

Once a complaint is received by OPSSU, it will be kept strictly confidential. If a complaint is made through the union as a grievance, a meeting will be held with the union representative/steward before and after a thorough investigation.

 

OPSSU should try to prevent gossip and protect the members’ privacy. However, the complainant must self-identify and name the alleged harasser in a complaint, and if the complaint goes to formal adjudication, what they say to the employer cannot be confidential.

 

Dealing with the complaint informally

In some cases of co-worker sexual harassment, a member might want to resolve the problem without going to the employer. In such instances OPSSU recommends connecting with a trained peer and/or steward.

 

TRAINED PEERS

On a volunteer basis, OPSSU members will be given the opportunity to receive training in sexual harassment complaints. A list of trained members (“trained peers”) will be compiled and distributed to the OPSSU membership. The President of OPSSU or executive should not act in the capacity of steward or trained peer in any sexual harassment complaint.

MAKING A COMPLAINT FORMALLY

If an OPSSU member wishes to file a complaint under the employer’s sexual harassment policy, the member should:

1. Notify a trained peer and/or steward of harassment. These individuals will talk with the complainant as soon as possible about their experience, needs and options. In this regard, OPSSU endorses an active role by trained peers in representing their members and in assisting them when claims of sexual harassment arise.

 

OPSSU will notify the member they will have access to EAP (Employee Assistance Program).

 

OPSSU will arrange for an outside representative/consultant, trained in sexual harassment in the workplace for both the complainant and the respondent. This consultant must have experience in labour law*.

 

DEFINITION OF INVOLVED PARTIES:

Complainant— an employee who has been subjected to alleged sexual harassment.

 

Respondent— an employee who is alleged to have sexually harassed a bargaining unit member

 

Consultant— an individual hired to investigate, through fact-finding, formal complaints of sexual harassment.

 

 

The Respondent

OPSSU members who have been accused of sexually harassment resolve it formally by the following process:

  1. The respondent, who may be accompanied by a union representative/steward or colleague, meets with the trained peer, is informed about the complaint, and given a chance to answer the allegation.

  2. The respondent is told that the matter will be dealt with formally, that his/her responses are also logged, and that this investigation is part of the official grievance procedure.

 

CONFIDENTIALITY

A governing principle in respect of any matter that is brought forward pursuant to this sexual harassment policy is confidentiality.

 

Every effort will be made to keep matters confidential. However, information will be disclosed

as necessary during the complaint process to the following extent:

 

Members’ rights

OPSSU has a legal duty to represent all members of the bargaining unit affected by the sexual harassment. The complainant has the right to:

  1. Work in a healthy and safe work environment.

  2. Have a complaint heard and receive a fair, unbiased investigation of the facts.

  3. Have a union representative/trained peer with them at any time during the complaint process.

  4. Confidentiality.

  5. Be free from retaliation for participation in an investigation.

 

The respondent has the right to:

  1. Work in a healthy and safe work environment.

  2. Know the full nature of the allegations in order to make a full response.

  3. Have their response heard and receive a fair, unbiased investigation of the facts.

  4. Confidentiality.

  5. Fair discipline, should discipline occur.

  6. Union representation as provided by the collective agreement during any investigation and discipline procedure.

 

Witnesses to harassment and participants in investigations have the right to:

  1. Work in a healthy and safe work environment.

  2. Confidentiality.

  3. Receive support if they have witnessed and been harmed by harassment.

  4. Union representation as provided by the collective agreement during any investigation and discipline procedure.

  5. Be free from retaliation for participating in an investigation.

 

COMMUNICATING A DECISION

 

Member Complainant

The member who made the complaint may be accompanied by a person of their choice

(trained peer, steward…etc.) when informed of the outcome of the investigation in a face-to-face meeting with their consultant. They will receive a hard copy of the decision.

 

Respondent

The respondent will be told the result of the investigation in a face-to-face meeting with their consultant, and it will also be written down.

The respondent may be accompanied by a person of their choice.

 

Other actions

Whatever the process (informal resolution or a formal complaint), OPSSU has other responsibilities. One important component should include a general awareness BEFORE problems occur. Therefore part of this policy includes actions to be taken such as:

 

  1. Be pro-active. Watch for signs of sexual or other forms of harassment, patterns and root causes. For example, high absenteeism and stress levels, turnover of particular groups in a department or sudden changes in a member’s behaviour might indicate a problem. Take action to reduce and eliminate the hazards and factors that contribute to sexual or other forms of harassment.

  2. Be aware of your own actions.

  3. The OPSSU Communications Committee shall coordinate an awareness campaigns to educate members

  4. The OPSSU website to include links on their home page to various organizations/events dealing with sexual harassment in the workplace

  5. Members who experience or witness sexual harassment might fear embarrassment, retaliation or isolation if they draw attention to the problem. OPSSU should inquire carefully and do what it can to protect members from negative consequences. Contact the trained peers who can support the complainant and witnesses, as needed.

  6. Explore Employee Assistance Plan options. (see OPSSU website)

  7. Ensure that harassment complaints are handled in a culturally safe way, respecting the cultural values and practices of members involved.

 

CONCLUSION

Sexual harassment is a violation of human and trade union rights and dignity and all efforts must be made to eliminate it.

 

Unions play a major role in outlawing sexual harassment at work. To do so they can act by: pushing governments to introduce legislation; taking up cases, and raising awareness and training and negotiating with employers on the issues.

 

OPSSU is committed to eliminating all forms of discrimination or harassment from the workplace. These goals and objectives seek to protect our members and enable them to attain a higher standard of living in all areas of their lives.

 

December 2021 version



Short term disability decision

PDF version here

In the matter of an arbitration:

Between:

Ontario Public Staff Services Employees Union (Union and Grievor)

– and –

Ontario Public Services Employees Union

BEFORE Reva Devins Arbitrator

FOR THE UNION Sarah Molyneaux

FOR THE EMPLOYER Mark Mendl

Treasury Board Secretariat Legal Services Branch Counsel

HEARING June 29 and August 4, 2020 by video conference, written submissions on August 13, 26 and September 4, 2020 and conference call on November 9, 2020

Decision

[1] There are two grievances before me, a policy grievance filed by the staff Union and another filed by an individual member. Both grievances challenge the current Application for Disability Benefit Form (the “STIPP Form”) used by the insurer, SSQ, to determine eligibility for Short Term Income Protection.

[2] Despite efforts to resolve this matter, the parties ultimately sought an arbitral award. They agreed that the arbitration would proceed by videoconference, with written Will Say Statements, oral cross examination and re-direct and written argument. Background

[3] The grievances were filed under the collective agreement that was in force from July 1, 2016 to March 9, 2019. Entitlement to short term sick benefits is governed by Article 23 of the agreement: the Employer is obliged to provide full income replacement for the first seven days of absence, known as the waiting period, and up to an additional 83 days, capped at 75% of the employee’s wages, can be awarded during the subsequent “benefit period”. Pursuant to a contract with the Employer, SSQ administers the plan during the benefits period, reimbursing the Employer to a maximum of $900 per week, with any balance owing to the employee paid by the Employer.

[4] Employees are required to provide a medical note after five consecutive days of absence during the waiting period; they must also submit medical proof of their ongoing entitlement to benefits during the benefit period. To assist it in determining an employee’s entitlement, SSQ has created detailed forms, stipulating that claims will not be approved unless the STIPP Forms and associated consent are completed.

[5] There are a number of questions in the Forms that the Union and the Grievor maintain are inappropriate, including those that ask for: 1. Diagnosis 2. Current symptoms, dates of previous episodes 3. Medication details, including dosage 4. Test results, X-rays, ECG reports 5. Whether the symptoms have psychotic elements or is related to pregnancy 6. Personal information such as whether the absence from work relates to marital/family life issues, personal problems, or alcohol, drug or gambling abuse.

[6] The Union also takes issue with the breadth of the consent to release personal information, including the authorisation that information can be shared with the Employer.

[7] The Forms, in one variation or another, have been in continuous use for a number of years. Several current and former Union executives have completed the Forms personally, however, this is the first time that they have been challenged.

[8] The individual Grievor was off work from January 29, 2018 to February 18, 2018. He provided the Employer with a medical note advising of his need for sick leave and he was paid 100% of his wages for his first seven days of absence. He then received the disputed STIPP Form to complete and return to SSQ to obtain benefits for the remaining period of his absence.

[9] The Grievor was concerned about what he perceived as an overly broad consent for the release of his personal medical information and the invasive nature of some of the questions. Although he did not advise the Employer at the time, his concern stemmed from the highly personal circumstances surrounding his illness. He objected to completing the Form, citing his concern that it breached his privacy rights. He offered to provide a more detailed medical note as an alternative, but his offer was declined. Since the Grievor did not submit the required Forms, his file was closed by SSQ and the Grievor used other credits to cover his remaining time off. He returned to work as scheduled in February 2018. The Grievor stated that the inability to access benefits caused him additional stress during a difficult time in his life.

[10] Cheri Hearty, a steward and former member of the Joint Benefits Administration Committee (“JBAC”) and Tim Mulhall, the current Chief Steward, both testified to their knowledge of the STIPP Form. Ms. Hearty stated that she was unaware of the content of the Form or extent of the release until the Grievor brought it to her attention. She had no evidence to refute the Employer’s assertion that there had been over 450 Forms submitted prior to 2018. However, based on her experience with members seeking benefits, she believed that many of the applicants may have felt financial pressure to complete the Form to ensure they obtained income replacement when off sick.

[11] Mr. Mulhall, who has been Chief Steward since 2017 and was previously a steward for several years, acknowledged that he completed the Forms and signed the release in 2013 and again in 2016 in connection with two of his own applications for STIPP. He did not recall any objections to the content of the Form or turning his mind to the issues raised in these grievances at the time. The nature of his medical conditions was not particularly stigmatising or embarrassing. Consequently, he was not especially concerned about his own personal or medical privacy. He was not aware of any concerns by OPSSU members with the content of the Form until January 2018.

[12] Stephen Giles, a Senior Advisor in Employee Relations, stated that the STIPP Form was created by the Insurer and that the Employer did not have any input into the form or content. Furthermore, although the consent allows SSQ to share medical information with the Employer, that does not happen in practice. On cross examination, he acknowledged that SSQ will provide information with regard to an employee’s accommodation needs, including medical limitations and restrictions. He noted, however, that the Employer also asks employees to submit an accommodation package before returning to work that provides an alternate means of acquiring the necessary information for the accommodation process. Mr. Giles further admitted that JBAC had not vetted or approved the STIPP Forms and that he was mistaken when he had informed the grievor that the Forms had been reviewed at JBAC. Finally, he acknowledged that although the form was changed in early 2014, the old form continued to be used for some indeterminate period thereafter.

[13] Mr. Giles also reviewed the records maintained by Employee Relations back to 2008 and recorded 498 occasions where STIPP Forms were sent to employees. On cross examination he acknowledged that it was unlikely that the Form was sent to 498 different people and that there were probably instances where the same person received a form on a number of different occasions. He also determined that SSQ approved 447 STIPP claims from 2005 to the date the grievances were filed in 2018, including several from current or former executive members of the Union. All the approvals required the member to complete and return the disputed Forms.

Submissions

[14] The Employer indicated at the outset of argument that it would limit its submissions to whether the Union waived its rights, was estopped from pursuing the grievances or unduly delayed the filing of the grievances. The Union largely focussed on those issues in making its submissions, however it also provided a brief summary of the arbitral jurisprudence in connection with the request for medical information to establish eligibility for short term sick benefits.

[15] The Union relied on Hamilton Health Sciences, 2007 CanLII 73923 (ON LA), noting that Arbitrator Surdykowski affirmed an employee’s right to privacy with respect to personal health information, confirming that an employer’s entitlement to information did not include the right to a diagnosis and was limited to information:

1. That an employee is unable to work due to illness or injury

2. The employee’s expected return to work date

3. The employee’s restrictions and abilities

[16] The Union submitted that Arbitrator Surdykowski further found that consent forms must be similarly limited and should not contain a “basket” consent authorising a broad release of confidential information. The Union maintained that the approach first articulated by Arbitrator Surdykowski has been routinely followed by other arbitrators. Moreover, the Employer, in its capacity as a trade union, has relied on the decision in Hamilton Health Sciences in multiple cases.

[17] Turning to the Employer’s main argument, the Union submitted that the facts in this case do not establish waiver, estoppel or delay that would warrant dismissal of the grievances. In the Union’s submission, an unequivocal affirmation, such as a fresh step, is required to establish waiver. Similarly, the law of estoppel requires a clear and unequivocal representation upon which the opposing party relied to their detriment.

[18] In this case, the Employer seeks to rely on the Union’s silence to establish a representation. The Union agreed that silence can, in some circumstances, amount to a representation, however, it maintained that it did not in this case. Furthermore, at most, the silence upon which the Employer relies dates back four years, from 2014, when the consent was amended, to 2018, when the grievance was filed.

[19] In the Union’s submission, the Employer’s argument that the Union is estopped from pursuing the grievances should fail for a number of reasons:

1. Union knowledge cannot be imputed. A lengthy practice that goes unchallenged will not necessarily ground an estoppel and ought not to in this case.

2. The Employer has not led any evidence that it relied on the alleged representation to its detriment.

3. The doctrine of estoppel cannot be used to escape the application of statutory rights.

4. The Collective Agreement under which the grievances were filed has now expired and a new Collective Agreement has been negotiated and ratified. In the circumstances, any estoppel would be discharged and the Union would be entitled to relief in respect of the ongoing breach of the current Collective Agreement.

5. There was no evidence that the grievor had previously applied for STIPP benefits or was otherwise aware of the contents of the STIPP form before the absence covered by this grievance. He grieved promptly.

[20] The Employer did not defend the Forms in their present format. Nor did it pursue arguments disputing jurisdiction to determine this matter. For the purposes of arbitration, the Employer conceded that the Forms and the required consent are not wholly consistent with arbitral case law and that the grievances are properly before me, subject only to arguments of delay, waiver and estoppel.

[21] Counsel for the Employer argued that these Forms have been in use for many years, with the full knowledge of the Union, its members and executive. No grievances had been filed, nor were any concerns brought to the Employer’s attention. Given these facts, the Employer maintained that both grievances are barred based on delay, waiver or estoppel.

[22] The Employer contended that the Union had not complied with the requirements in the Collective Agreement for the timely filing and referral of grievances. It submitted that the Forms had been completed and signed by numerous Union executives from 2005 onwards, offering ample evidence that the Union had actual knowledge of the Forms and their impugned contents. Alternatively, the practice was so longstanding and notorious that knowledge should be imputed to the Union.

[23] Counsel maintained that whether the Union had actual or imputed knowledge, a grievance filed on February 17, 2018, many years after the Forms were first used, was well beyond the timeline required under the collective agreement. Correspondingly, the grievances are out of time for referral and an arbitrator has no ability to extend the timeline, irrespective of the reason for the delay or whether there has been prejudice. The Employer took the position that this should not be characterised as a continuing grievance. In the Employer’s submission, while the use of the STIPP Forms may have had a continuing impact on employees who are required to sign them, the grievance relates to the Form itself and that gives rise to a single, non-continuing alleged violation.

[24] In the alternative, the Employer submitted that the grievances should be dismissed on the basis of the doctrine of waiver. It argued that it need not show reliance or detriment for the doctrine to apply. It was sufficient that the Union had knowledge of the Forms, was aware of the deficiencies and did not insist on its right to address them. The Union did not raise the issue of the STIPP Forms in collective bargaining and failed to address the alleged deficiencies for more than decade. The Employer argued that the Union has thereby waived any ability it had to grieve these issues.

[25] In the further alternative, for many of the same reasons, the Employer also argued that the Union is estopped from grieving that the Forms are deficient. The Employer submitted that more than twelve years of Union silence reasonably induced it to believe that the STIPP Forms were acceptable. It would therefore be inequitable to allow the Union to insist on changes, particularly since Article 22.04.01 of the Collective Agreement obligates the parties to negotiate changes. There is obvious prejudice to the Employer in that it lost the ability to negotiate changes during the life of the collective agreement.

[26] The Employer took the position that the Union’s silence conveyed acquiescence: bargaining parties communicate with one another through spoken word and conduct, including their silence. In this case, both the rank-and-file members and the elected members of the executive committee signed the STIPP Forms on 447 occasions from 2005 onwards. By their actions, the Union and its members clearly communicated that the Forms were acceptable.

[27] The Employer refuted the Union’s position that there can be no estoppel against statutory rights. Counsel suggested that the Union in this instance is relying on the anti- discrimination provisions in the collective agreement and there is therefore no need to consider protections set out in the Human Rights Code. Moreover, there are many examples where arbitrators have found that estoppel can apply to statutory rights.

[28] In reply, the Union suggested that the Employer conflated the forms in use prior to February 2014 and those used previously. The Union notes that while there are undeniable similarities between the forms used in these two periods, they are not the same. In particular, it points to the consent that employees must sign, which it maintains changed significantly in 2014. Moreover, the earliest form produced by the Employer was dated 2012. Therefore, arguments with respect to delay should be limited to the period following 2014.

[29] The Union submitted that the issue of delay is distinct from timeliness. While the Employer previously raised issues of delay, it did not mention untimely filing or referral to arbitration until closing argument. By waiting until final argument to raise the issue, the Employer denied the Union the opportunity to make argument or call evidence before it had closed its case. By its conduct over a period of two and a half years, the Union submitted that the Employer had waived its right to assert timeliness objections.

[30] The Union also took issue with the Employer’s argument that the use of the Forms does not constitute a continuing grievance. Although the policy was only implemented once, there is a repetitive and ongoing breach every time a member is asked to complete a form that breaches their right to privacy.

[31] In the Union’s view, the caselaw on estoppel distinguishes between long- standing employer conduct, such as providing a particular benefit, and non-grievance by a union over a lengthy period. Where an employer confers benefits on the union members, the union will come to rely on those benefits to their detriment. The same cannot be said of non-grievance, which confers no inherent benefit. In these circumstances, detriment to the Employer should not be presumed.

Analysis

[32] A good deal of the evidence that was called at arbitration pertained to issues that I have determined do not need to be considered, including whether this matter is arbitrable and whether the Forms are permissible. The Employer conceded these points in final argument, expressly accepting that I had jurisdiction to determine the matter in this instance and acknowledging that the STIPP Forms do not comply with the accepted legal standard pertaining to confidential medical information. Ultimately, the only live disputes that remained between the parties was whether the grievances should be dismissed on the basis of undue delay, waiver or estoppel and, if allowed, what remedy should be awarded.

[33] Most significantly, the parties agreed on the primary underlying issue that the STIPP Forms, as presently drafted, exceed the limits set out in the current jurisprudence for what information an employer can request when determining eligibility for short term sickness benefits.

[34] The leading authority on this issue is Hamilton Health Sciences, supra. At paragraph 25, Arbitrator Surdykowski adopted what he referred to as “the least intrusive non-punitive interpretive approach” that balances the competing interests of the employer and their employee. He goes on to conclude at paragraphs 27 and 28: The several layers of legitimate employer interests suggest that there is more than one stage to the process that is engaged when an employee seeks the benefit of the sick leave provisions in a collective agreement. It also suggests that the employer will generally be entitled to less information at the initial stage than at a subsequent stage. The employer’s desire for more information, or its genuine concern for the employee’s well-being or desire to assist the employee, do not trump the employee’s privacy rights. Nor do questions of expediency or efficiency. In the absence of a collective agreement provision or legislation that provides otherwise the employer is entitled to know only that the employee is unable to work because she is ill or injured, the expected return to work date, and what work the employee can or cannot do. A document in which a qualified medical doctor certifies the employee is away from and unable to work for a specified period due to illness or injury is prima facie proof sufficient to justify the absence. Unless the collective agreement (or less likely, legislation) stipulates otherwise, it will also be sufficient to qualify for any applicable sick benefits for that period. To require more invites an unnecessary invasion of the employee’s privacy. In order to obtain additional confidential medical information, the employer must demonstrate a legitimate need for specific information on a case-by-case basis. That is, for sick benefits purposes an employer has no prima facie right to an employee’s general medical history, a diagnosis, a treatment, plan or a prognosis other than the expected date that the employee will be able to return to work with or without restriction. As a general matter there is nothing to prevent an employer from contracting out the information gathering or assessment of medical information as the Hospital has done in this case. But the party to whom the employer has contracted out this function stands in the shoes of the employer and has no greater rights to or need for information than the employer has if it performs the function itself. And the employer is responsible for the conduct of any third party that performs such function for it. However, the insertion of such a third party, which is a stranger to the workplace and beyond the direct reach of the collective agreement, may raise suspicions and increase an employee’s reluctance to provide confidential personal medical information.

[35] Arbitrator Surdykowski also considered the scope of the consent that an employer can legitimately ask an employee to sign when they are seeking short term disability benefits. At paragraph 35 he found that: In the first instance for STD benefits purposes, therefore, in the absence of statutory or collective agreement authorization an employer cannot require an employee to consent to the release of more than the certification that she is absent and unable to work because she is ill or injured, the general nature of the illness or injury, that the employee has and is following treatment plan (but not the plan itself), the expected return to work date, and what the employee can or cannot do. The consent must be both focused on the particular purpose and limited to the particular medical professional. A consent that must be provided for the purposes of STD benefits should not include return to work accommodation considerations other than whether there are likely to be any restrictions on the anticipated return to work date. A “basket” consent that purports to authorize anyone who the employer may ask to release confidential medical information is not appropriate. Nor is it appropriate to require an employee to sign a forward-looking consent that may exclude her from the confidential medical information loop. The overwhelming weight of the arbitral jurisprudence takes a dim view of consents that purport to give an employer prospective permission, particularly where the consent purports to permit the employer to unilaterally (with or without notice to the employee) initiate direct contact with a doctor or other custodian of confidential medical information. Every contact should be through or at the very least with the knowledge and consent of the employee, a separate consent should be required for every contact, and every consent should be limited to the completion of the appropriate form or the specific information required, as appropriate.

[36] Arbitrator Surdykowski confirmed and expanded his view in a series of cases1, with a minor revision of his initial view that a separate consent was required for every contact. In Canadian Bank Note Company Ltd. v. International Union of Operating Engineers, Local 772, 2012 Can LII 41234 (ON LA) Arbitrator Surdykowski indicated that a fresh consent was not necessary for every communication with the same medical professional identified in the consent.

[37] These general principles guiding the access to confidential medical information have been widely followed in Ontario: Toronto Hydro Electric Systems Ltd. v. Society of United Professionals, 2019 CarswellOnt 12143 (Goodfellow). Most recently, in a case in which the Employer was acting in its capacity as a trade union, Arbitrator Kaplan found that the law in this area was by and large settled: Legal Aid Ontario (Union Grievances re: APS) v. OPSEU, issued February 4, 2019 (Kaplan).

[38] Applying the principles set out in Hamilton Health Sciences, supra, the Forms and Consent that are currently used to assess eligibility for STIPP benefits are clearly out of step with what is permitted. There are a number of excessively invasive questions, including requests for diagnosis, treatment details and information related to an employee’s personal life. None of these questions come within the broadly accepted arbitral view that, while an employer has a legitimate business interest in ensuring the proper administration of its sick leave plan, employees have corresponding rights to privacy and confidentiality of their health information.

1 Providence Care, Mental Health Services v. OPSEU, Local 431, 2011 CanLII 6863, Revera Care Long Term Care Inc. v. ONA, 2011 CanLII 73193 (ON LA); Canadian Bank Note Company Ltd. v. International Union of Operating Engineers, Local 772, 2012 Can LII 41234 (ON LA).

[39] The question before me is whether the Union waived its rights, is estopped from pursuing these grievances or is otherwise precluded from advancing the grievances due to delay. The Employer relied on the open and notorious use of virtually identical forms for many years to suggest that it would be unfair to permit the Union to challenge the Forms in these circumstances. The Employer did not allege any particular prejudice, beyond denial of an earlier opportunity to bargain for an acceptable resolution, asserting that it would nonetheless be unfair to allow these grievances to proceed.

Undue Delay/Timeliness

[40] I previously advised the parties of my ruling that the Employer could not argue that there was undue delay in filing the grievances or referring them to arbitration. The Union raised concerns that it would need to re-open its case in order to respond and that the Employer had waived the right to advance issues of timeliness. Because this was raised for the first time in closing argument, I issued a bottom-line decision and indicated that more detailed reasons would be included in the final decision.

[41] Throughout these proceedings, including a lengthy period where the parties attempted to reach a mediated resolution, the Employer objected to the grievances on the basis of ‘delay, waiver or estoppel’. Counsel conceded that a timeliness argument was not specifically advanced until final argument. Nonetheless, the Employer maintained that the policy grievance should have been filed years ago when the Insurer first began using the Forms.

[42] The Employer has taken several fresh steps over a lengthy period before raising a timeliness argument. It repeatedly referred to objections based on ‘delay, waiver or estoppel’ without ever articulating an objection that the grievances were not filed or referred to arbitration in accordance with the collective agreement. These concerns were not identified before the hearing commenced, despite protracted discussions between the parties. Nor were they advanced in opening argument. The Employer has repeatedly conducted itself in a manner that suggested it did not intend to challenge the timeliness of the grievances. I therefore found that it had long since waived any right it might have had to raise a timeliness argument.

[43] The Employer argued there was a delay in referring the matter to arbitration, which goes to jurisdiction and cannot be waived. In my view, if there is a timeliness issue, it is only with respect to filing the grievance and not in connection to referral to arbitration. There was no evidence of delay in referring the matter once the policy grievance was filed. The Employer relied solely on the assertion that the Union was obliged to file a grievance when it, or at least union members and executives, first became aware of the contents of the Forms. On these facts, the Employer maintained that the matter should have been grieved and referred when the Union first reviewed the Forms at issue.

[44] Counsel did not provide any caselaw to support the argument that an untimely referral to arbitration could be established in this way. That is, that a delay in filing the grievance also, and necessarily, equalled a delay in referring the matter to arbitration. In my view this would lead to a troubling result. It would effectively convert every instance of a delay in filing into a case where there was also an untimely referral, which the Employer says cannot be waived. This would clearly be inconsistent with the settled jurisprudence. Complying with the timeline for filing a grievance and then referring it to arbitration are distinct procedural steps. I am not persuaded that there is any basis to collapse them in the manner suggested by the Employer.

[45] In any event, even if delay could be established vis a vis the Union, there was no evidence that the individual grievance was untimely. Irrespective of when individual Union executives knew about the Forms, there was no suggestion that the individual grievor was similarly aware of the contents of the Form or required consent before he filed his grievance.

[46] The Employer suggested the ‘complaint’ crystallised when the Union became aware of the violation and that the individual grievance was therefore also untimely. This argument is in direct conflict with the express terms of the Collective Agreement. Article 8.01 directs an employee to initiate the grievance procedure within 30 working days “of the employee becoming aware of the grievance” (emphasis added). The Employer’s position would ultimately preclude individuals from grieving any issue that could have been grieved as a policy grievance. I do not believe that this is what the parties intended.

Waiver and Estoppel

[47] In the alternative, the Employer submitted that the Union was either estopped from enforcing its rights or had waived its right to do so. The Union maintained that neither of these equitable remedies are warranted in this case.

[48] Typically, parties argue that the right to pursue a matter has been waived when there are alleged procedural irregularities and, alternatively, raise issues of estoppel for the non-enforcement of rights under the collective agreement. The Employer in this case is advancing both doctrines and quite properly notes that the arguments invoke very similar reasoning: that fairness demands that it not be required to defend against allegations when it says the Union remained silent for many years.

[49] The SCC described the fundamentals of waiver as follows in Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., 1994 CanLII 100 (SCC), at pp. 499-500: The essentials of waiver are thus full knowledge of the deficiency which might be relied upon and the unequivocal intention to relinquish the right to rely on it. That intention may be expressed in a formal legal document, it may be expressed in some informal fashion or it may be inferred from conduct. In whatever fashion the intention to relinquish the right is communicated, however, the conscious intention to do so must be ascertained.

[50] Similar questions are asked in considering whether there has been an estoppel: has one party made a clear and unequivocal representation that the other party has reasonably relied upon to their detriment? The representation may be established by word or conduct, including a lengthy silence, but it is ultimately a question of fact: Canadian National Railway v. Beatty, 1981 CarswellOnt 1137 (Ont. Div. Ct.); Beatrice Foods Inc. v. RWDSU, 1994 CarswellOnt 1331 (MacDowell); Air Canda v. CAW, 1994 CarswellNat 1661 (Brandt); Insurance Corp. of British Columbia v. OPEIU, 2002 CarswellBC 3320 (Hall); MTD Products Ltd. and CAW (Machado), (2004) 129 LAC (4th) 313 (Schiff); BC Ferry Services Inc. v. BC Ferry and Marine Workers’ Union (2013), 229 LAC (4th) 288 (Korbin).

[51] As acknowledged by the parties, despite some distinctions between the two doctrines, they are some key similarities. They both require an intentional relinquishing of rights, which, in this case, the Employer seeks to establish by relying on identical factual assertions related to the Union’s knowledge and silence. They also invoke comparable principles of fairness. Ultimately, I have determined that neither doctrine should be applied in this case. I do not think there was a clear and unequivocal representation or intention by the Union to relinquish their rights and, in the overall labour relations context, it is not unfair to allow the matter to proceed.

[52] I turn first to whether there was a clear and unequivocal representation or demonstration of intention by the Union that it would not assert its rights. Although there was some dispute about precisely how long the current STIPP Forms have been used, there is no doubt that they were used for at least a few, if not several years before these grievances were filed. In my view nothing turns on this distinction. It is apparent that several Union officials received and signed the impugned forms in their personal capacity a number of years before the policy grievance was filed.

[53] While I am satisfied that the current Forms were in use for a significant period of time before the grievances were filed, there is no evidence that the Union intended to give up the right to object to the Forms or the required consent to release medical information. They were not approved by the Joint Benefits Administration Committee, were not raised for discussion between the parties during bargaining or at any other time. Nor were copies of the Forms sent to the Union when application packages were forwarded to individual employees. Moreover, I accept the evidence of Tim Mulhall, the one Union executive who gave direct evidence on this issue, that while he had signed the form in the context of a personal application for STTIP benefits, he did not turn his mind to whether it might infringe employees’ privacy interests.

[54] In these circumstances, I am not persuaded that the Union knowingly gave up its rights or intended to communicate that intention to the Employer. There was no overt decision by the Union not to pursue its’ rights and no evidence upon which I can conclude that it even turned its mind to whether the Forms violated employees’ privacy rights.

[55] The Employer submitted that the Union’s intention to waive its rights can be inferred from its’ silence. I disagree. Arbitrators have long been wary of accepting a Union’s silence as a clear and unequivocal representation or demonstration of intention. An estoppel has been found where the union’s silence arose in a circumstance that called out for them to make their position known, but there has been a reluctance to make that finding where significant rights are at stake or where there was no evidence that the union intended to communicate the representation being asserted: Insurance Corp. of B.C., supra; Cornwall Community Police Services Board v. Cornwall Police Association, 2016 Can LII 12626 (ON LA) (Snow); Toronto Hydro-Electric System Ltd. v. Society of United Professional, 2019 (CanLII) 67962 (ON LA) (Goodfellow).

[56] Despite the long term use of the Form, I do not think either party actively turned their minds to the privacy issues raised by these grievances. As I have already mentioned, the Forms were not the subject of previous discussions between the parties and the Employer did not assert that there were particular circumstances where they would have expected the Union to raise their concerns. In this case, the Union’s silence ought not be construed as acquiescence to the existing Forms such that it gives rise to either waiver or estoppel.

[57] Nor am I persuaded that the Employer relied on the Union’s silence or that it would have been reasonable for them to do so in all the circumstances. At a minimum, I find that there has been no detrimental reliance, a necessary pre-condition for estoppel. The Employer suggested that it was prevented from addressing this issue at the bargaining table. I have two reservations about the force of this argument. First, the Employer consistently argued throughout these proceedings that the Forms were prepared and controlled by the Insurer. They insisted that they could not demand a change in content. If that is true, then I fail to see how the Forms could have been the subject of bargaining.

[58] It is equally hard to imagine what they could have bargained for beyond acceding to the Union’s request. Given the nature of the legal and statutory rights at issue and the Employer’s admission that the Forms do not comply with privacy protections, it is difficult to comprehend what exactly the Employer has given up by not being able to raise this issue at the bargaining table. Neither side has the capacity to derogate from an employee’s legal entitlements: they cannot contract out of their statutory obligations, nor bargain away employees’ rights to individual privacy of confidential medical information. In my view, although not technically required to make out a successful case for waiver, the lack of prejudice or detrimental reliance also militates against the underlying goal of both waiver and estoppel, which is to prevent unfairness.

[59] Finally, I would add that I have serious reservations whether waiver or estoppel can be applied to rights to individual privacy. At a minimum, it would not preclude the individual grievance from proceeding. It would be antithetical to the objective of human rights and privacy protections to find that an individual grievor was precluded from grieving about discrimination or a violation of their right to privacy simply because other, similarly situated individuals had not previously grieved.

Disposition and Remedy

[60] For all these reasons, the grievances are allowed. What then is the appropriate remedy?

[61] The Union requested a number of remedies:

1. A declaration that the Employer breached the Collective Agreement and the Code and, if applicable, PHIPA, PIPEDA and OHSA

2. An Order granting the grievance

3. An Order that the Forms be amended forthwith

4. An Order that any issues arising in respect of STIPP applications made between the date of the first grievance and the amendment of the Forms be remitted to the Parties

5. An Order that the Employer reinstate the Grievor’s credits applied in respect of his sick leave

6. An Order that the Employer pay the Grievor $5000 in general damages

[62] Both parties recognised that the STIPP Form violates employees’ privacy rights and is impermissible. Although there was some disagreement between them whether there has been a statutory breach of PIPEDA, PHIPPA and OHSA, there is no dispute that the Forms do not meet the standard set in the applicable arbitral case law. There was also substantial agreement on the limits on a request for medical information in regard to receipt of short-term sick benefits. In the unique circumstances of this case, I have determined that no labour relations purpose would be served by issuing the declarations sought by the Union.

[63] Nor do I consider this to be an appropriate case for an award of general damages; in my view it is sufficient that the Grievor be made whole for his actual losses. The factors to be considered in making an award of general damages include an assessment of the extent, if any, of the humiliation, hurt feelings and loss of self- respect, dignity, self-esteem and confidence experienced by the individual subjected to a violation of their rights, as well as the seriousness of the conduct: Weyerhaeuser Co. and CEP, 2003 154 LAC 94th 3 (Sims); Sanford v. Koop, 2005 HRTO 53 (CanLII); Arunchalam v. Best Buy Canada, 2010 HRTO 1880 (CanLII); Shaw v. Ottawa (City), 2012 HRTO 593 (CanLII).

[64] The Grievor in this case elected not to submit the information or consent to the disclosure of information that he felt would violate his privacy. The extent of his evidence on how the denial of benefits affected him was merely that ‘it caused him further distress during a difficult time’. I accept that this would have been distressing, however, he did not disclose any confidential information, his income was not interrupted and there is virtually no evidence on the extent of his upset. In the circumstances, I am not inclined to award a further amount for general damages.

[65] To make him whole, the Grievor should be reimbursed for the credits used for the duration of his absence. The Employer submitted that the matter be remitted back to SSQ for a retroactive determination. I am not persuaded that would be a reasonable outcome. The Employer has already accepted the Grievor’s medical note as sufficient to entitle him to benefits for the first seven days of his absence and has not identified any specific shortcomings or raised direct questions related to the Grievor’s ongoing eligibility to receive benefits. In the circumstances, there is no basis to remit his entitlement for the remaining 8 days of absence for further review.

[66] The grievances are allowed and I make the following Orders:

1. The STIPP Forms are to be amended as soon as practicable to comply with the law as summarised in this decision.

2. All related issues arising from the use of the disputed Forms from the date of the first grievance are remitted to the Parties for resolution.

3. The Employer reinstate the credits applied in respect of the Grievor’s denied STIPP benefits.

[67] I will remain seized in the event that the Parties are unable to fully resolve the matters that have been remitted back to them or if any other issues of interpretation or implementation of my award arise.

[68] Dated at Toronto, Ontario this 31st day of March 2021.

Reva Devins, Arbitrator