Employee misses complaint deadline after flu shot causes paralysis

Collective agreement provided for 30 working days to file complaint but employer wanted to see if side effects from flu shot improved

An Ontario arbitrator has ruled a collective agreement’s 30-daytime limit for filing complaints should be waived after an Ontario company asked an employee for more time to see if the side effects of a company-sanctioned flu shot went away.

David Robinson was hired in November 2004 as a contract specialist with the supply chain group of Ontario Power Generation (OPG). The following year, OPG arranged for a nurse to give flu shots to its employees and encouraged everyone to receive one. On Nov. 14, 2005, Robinson received a flu shot from an OPG nurse.

Employee developed paralysis after flu shot

Later that day, Robinson began experiencing strange symptoms that affect his right eye and mouth. The next morning, Nov. 15, he discovered one side of his face was paralysed. He wasn’t able to speak, eat, drink or hear and his eye had to be taped shut. He went on medical leave until January 2006, though he continued to have some symptoms. During his leave in December 2005, he sent an e-mail to OPG management asking for a meeting to discuss “responsibilities, legal and financial implications and next steps.” He also did some research that indicated a possible side effect of some flu vaccines was Bell’s palsy. When he returned to work in January, he forwarded the e-mail to his supervisor and human resources.

Management met with Robinson on Jan. 12, 2006, and it was decided OPG would “wait and see” if there were any lasting effects from the flu shot. At this time, Robinson still had some paralysis. OPG also agreed to top up his pay to 100 per cent during his medical leave, which had been set at 75 per cent of his salary under the company’s medical plan. Robinson sent an e-mail on Feb. 10 citing a medical journal that identified a link between certain flu vaccines and Bell’s palsy. Management stuck with its “wait and see” approach.

Employee waited months for side effects to go away

After several months, in the summer of 2006, Robinson found his condition had “plateaued” and wasn’t getting any better. He contacted his union on Aug. 3 and met with a representative on Aug. 21.

Robinson finally filed a grievance on Sept. 20, 2006, saying OPG had encouraged him to take the flu shot on its premises without adequately informing him of the potential health effects and consequences. As a result, OPG failed to provide him with the necessary resources to give informed consent.

Collective agreement specified 30 days to file complaint

OPG argued the grievance wasn’t any good as the collective agreement specified an employee complaint must be filed “within 30 working days of the date the employee should reasonably have been aware of the action or decision giving rise to the complaint.”

OPG said the administering of the flu shot was the triggering event and the grievance was filed 10 months later, well outside of the time limit.

Robinson argued the triggering event was when his condition stopped improving in August 2006 and nothing else had been done. At that point, he went to the union. He also argued he had requested a meeting in December 2005 to discuss the matter, so OPG had been notified there was a problem less than a month after the shot.

The arbitrator found 30 working days — about six weeks — was a reasonable amount of time to file a grievance and is in fact longer than usually found in a collective agreement. The language of the collective agreement indicated this limit was mandatory and could only be extended by mutual agreement.

“The clear implication is that the consequences of a failure to extend a time limit by mutual agreement is that the complaint may not be filed outside the stipulated time limit,” the arbitrator said.

Employer encouraged worker to let time limit pass

However, the arbitrator found the collective agreement encouraged attempts to resolve disputes through other means and Robinson’s meeting request in December 2005 was in the spirit of that. Because OPG adopted a “wait and see” approach, it encouraged Robinson to let the time limit pass.

Failing to see “any real prejudice” to OPG if the grievance continued and the fact Robinson was led to let the time limit pass, the arbitrator ruled the 30-day limit would be waived and the grievance would be allowed.

For more information see:

Society of Energy Professionals v. Ontario Power Generation (Nov. 15, 2007), K. Burkett — Arb. (Ont. Arb. Bd.).

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