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HomeMy WebLinkAbout1987-1668.Loweth.89-04-18ONTMIO EMPLOYh DELA COURONNE cRowNEMPLO”EEs DE L’ONT/\R,O GRIEVANCE q n BOARD CQMMISSION DE SE-ITLEMENT REGLEMENT DES GRIEFS 180 DUNOAS STREET WESL TORONTO. ONTARIO. MG 128 - SWTE2100 lea, RUE DUNGAS 0"E.x TORONTO. ,ONTMIO, M5G IZ.3 - B"M.4" .?lW IN THE NATTER OF AN ARBITRATION Under TEE CROWN EMPLOYEES COLLECTIVR BARGAINING ACT Before TEE GRIBVANCB SETTLEMENT HOARD Between: Grievor OPSEU ( E. Loweth) i and - Employer Before: APPEARING FOR TEE GRIEVOR: APPEARING FOR THE EMPLOYER: HEARING: The Crown in Right of Ontario (Ministry of Labour) J. McCamus - Vice-Chairperson T. Kearney - Member D. Wallace - Member R. Wells Counsel Gowling a. Henderson Barristers & Solicitors J. Zarudny Counsel Ministry of the Attorney General December 16, 1988 RULING ON PRELIMINARY OBJECTION This grievance concerns what has been referred to by the Employer as the Grievor's release from a probationary appointment with the Race Relations Division which was, at the time, a unit within the Ministry of Labour. A number of preliminary objections were taken by Counsel for the Employer at the commencement of the proceedings, one of which is the subject of this ruling. It was argued on behalf of the Employer that the Union had effectively withdrawn the grievance and that a withdrawal of the grievance is final and irrevocable. In response to this objection, the Union has argued that the grievance was not in fact withdrawn either -because no notice of withdrawal was forwarded to the Employer or, alternatively, on the ground that if a misleading communication was forwarded to the Employer, it was not-coupled with an effective intention to withdraw the grievance. In order to consider the merits of this objection, it is necessary to set out the factual circumstances of certain communications made by the parties and by the Grievance Settlement Board concerning this matter. An application for a hearing of this grievance filed by Mr. Mike Pratt, who was then the Co-ordinator of the Union's grievance department, was received by the Grievance Settlement Board on September 17, 1997. In due course, counsel for both parties were appointed and a hearing was scheduled for January 29, 1988. Shortly before that date, the parties agreed to adjourn the hearing sine die due to the unavailability of the grievor. On -::. . 2 May 17, 1988, the critical piece of correspondence, on which the Employer's preliminary objection rests, was sent by Mr. Pratt to Ms. Teresa Camacho, the Acting Registrar of the Grievance Settlement Board. After referring to the present grievance, Mr. Pratt wrote as follows (Exhibit 4): "Please be advised that a hearing in this matter is no ,longer required, your file may be closed. Thank you for your attention to this matter. Yours truly, Mike Pratt, Co-ordinator Grievance Department" This letter arrived at the Grievance Settlement Board on May 24, 1988. A carbon copy of the letter was forwarded to the Deputy Minister of Labour. That copy bears a date stamp indicating that the letter alsoarrived at the Deputy Minister's office on May 24. The Employer .submits that it is this communication to the Deputy Minister' that constitutes an irrevocable withdrawal of the grievance. For reasons not explained in the evidence to this point in these proceedings, the letter written by Mr. Pratt was written in error. When it was discovered that such a letter had gone out, Ms. Joan Reid contacted the Board on behalf of the Union and advised the Board that such a letter had been sent in error and that the Union's intention was, in fact, to continue with the grievance. This information was communicated by Ms. Reid to Mr. Daniel Pascoe 3 on May 20, 1988, four days before the letter arrived. Mr. Pascoe made a notation on the file as follows (Exhibit 2): "Joan Reid advised that OPSEU has sent a letter of 1st to us but that it was done too soon and they request that we ignore the letter and continue on with the September 15 date which I set." Mr. Pascoe had set the September 15th hearing date after discussions with counsel concerning their availability and a notice of hearing dated May 19, 1988 (the day before Ms. Reid's phone call to Mr. Pascoe) was prepared and sent out under Ms. Carnacho's signature.- The evidence does not clearly establish when this notice was mailed out by the Board. It would appear, however, that this notice was'received by the Union on June 3, 1988. Counsel for the Employer was not prepared to concede that the notice was received then or at any other point in time by the Employer and no direct evidence of its receipt has been led in these proceedings. Accordingly, in ruling on this preliminary objection, it is our view that we cannot take into account the fact that some time after the receipt of a copy of Mr. Pratt's May 17th letter, the Employer likely received the May 19th Notice of Hearing from the Board. On receiving the information from Ms. Reid concerning the erroneous nature of the May 17th letter, Mr. Pascoe made the notation quoted above in the file, but took no further action. More particularly, he did not communicate this information to the Employer. Further, it'appears that within the Board itself the . 4 information was not communicated effectively for the normal processes of closing the file were commenced once the May 17th letter arrived at the Board. Apparently, neither Ms. Reid nor Mr. Pratt nor anyone else from the Union advised the Employer of the erroneous nature of the contents of the May 17th letter and accordingly, the Employer's position is that its receipt of the May 17th letter constitutes an effective withdrawal of the notice. Although there were a number of subsequent~ Co~uniCatiOnS amongst counsel and with the Board, they are not material to the resolution of the present dispute. The precise point raised in this preliminary objection, then, is whether an erroneous communication of this kind constitutes an effective and irrevocable withdrawal of the grievance. It is the Employer's position that in sustaining this objection it is not necessary for it to establish that it relied on this communication in any way to its detriment. Rather, the Employer's position is that the act of withdrawal, if established on the evidence, terminates the grievance whether or not the Employer has in any way changed its position in reliance on an assumption that the grievance has been terminated. Counsel for the Employer has referred us to a number of .arbitral cases dealing with the withdrawal of grievances. Our review of these cases satisfies us that the arbitral jurisprudence establishes that a withdrawal, if effectively made, is irrevocable. However, we do not find the existing case law helpful on the narrow point before this Board, that is, whether in the rather unusual 5 circumstances of this case, the Employer's receipt of a copy of Mr. Pratt's May 17th letter constitutes an effective withdrawal of the grievance. The Union has argued against the conclusion that it is effective on two grounds. First, it has argued that the May 17th letter should not be considered to constitute a withdrawal as it was not written to the Employer and further, does not use the language of withdrawal. Rather, the letter simply states that a hearing is no longer necessary and the reader is left to infer why that might be the case. Secondly, and in the alternative, the union argues that if such a letter could amount to an effective notice of withdrawal, it should not be so considered in a case such as the present where the Union had in fact not formulated an intention to withdraw the grievance and advised the recipient of the communication of the erroneous nature of its contents prior to its receipt. In our view, the Union's first submission is not persuasive. The content of Mr. Pratt's May 17th letter, when placed in context, effectively communicates a withdrawal of the grievance. Although it is true that the letter is addressed to the Board, we see no reason why an effective notice of withdrawal cannot be communicated to the Employer through the medium of a carbon copy of'a notice to this effect to the Board. Further, though it is also true that the reader is left to infer why a hearing is no longer necessary in this case, we believe that the almost inescapable conclusion that the reader would draw in such circumstances is that the Union has . , 6 decided not to proceed with the grievance and- is, therefore, withdrawing it. A more difficult question is raised, by the Union's second submission. In our view, the accidental and erroneous nature Of the communication substantially complicates its effectiveness as a notice of withdrawal. In resolving this issue, we begin with the assumption that withdrawals should generally be considered effective and irrevocable. In a case where the Union has formulated an intention to withdraw the grievance and then does so, policy considerations weigh in favour of refusing to allow the union to revive the grievance. Although the Union may come to regret its decision to withdraw the grievance, there are good reasons for holding the Union to such decisions as a matter of general principle. In the ordinary course of events, an employer should be entitled .to act on the assumption that such communications are binding and conduct its affairs on that basis. A general rule that permitted revival and therefore required the Employer to assume that withdrawn grievances might be revived would constitute an unattractive impediment to effective dispute resolution and stable relations between the parties. Further, finality in dispute resolution is, of course a two way street. It is in the Union's interest that the Employer is unable to resile from binding commitments which are advantageous from the Union's point of view. As a general matter then, we believe there are sound reasons for the general principle that withdrawals are binding and irrevocable, notwithstanding the fact that this 7 requires frustrating any second thoughts that the Union may have about a grievance it has withdrawn. In our view, however., somewhat different considerations are brought to bear when, as in the present case, the Union has not formulated an intention to withdraw a grievance but has accidentally communicated an apparent intention to do so to the Employer. In such a case, the Union is not attempting to act upon its second thoughts with respect to the legitimacy of a grievance it has withdrawn. Rather, it is attempting to peruse the merits of the grievance which it has not intended to withdraw. If the accidental communication resulted from typographical or other clerical error, it would no doubt seem unjust both to the grievor and to the Union that the mere making of a mistake of that kind should result in the suppression of what they view as a legitimate grievance. We would emphasize that the Employer is urging upon us that an erroneous communication of the kind in issue here is, upon receipt, effective to irrevocably withdraw the grievance. It is no part of the Employer's argument on this objection that the Employer has relied in some detrimental way on the receipt of a copy of Mr. Pratt's May 17th letter. The Employer argues, in effect, that if it had received notice of the error within minutes of its receipt of the copy of the letter, the grievance would nonetheless have been effectively withdrawn. In our view, the policy favouring finality in dispute resolution does not reach this far and accordingly, we hold that the receipt of the May 17th _. a letter does not have the effect contended for by the Employer. For a withdrawal to be effective, the Union must formulate an intention to withdraw the grievance and communicate that intention to the Employer. In the present case, the first element is not present. If our ruling has the effect of requiring the Employer to confirm with the Union that a grievance has, in fact, been withdrawn in doubtful cases, we do not view this as too great a price to be paid to ensurethatpotentially legitimate grievances are not suppressed on the basis of clerical, typographical and other similar administrative errors: It is a very different matter, of course, whether an erroneous communication of the kind at issue here might have the effect of raising an estoppel of some kind against the Union. That is to ' say, if, the communication is not effective, by itself, to constitute an effective withdrawal of the grievance, it may be that such a communication could raise an estoppel which may preclude the Union from denying that the grievance has been withdrawn. The raising of an estoppel, however, would normally require a demonstration that detrimental reliance of some kind has occurred and, as we have indicated, evidence of such reliance has not been presented to this Board. We do not comment further on the possibility of the application of estoppel doctrine to the present case, however, as it has not yet been argued before us by the parties. In summary, then, the preliminary objection of the Employer to the'effect that its receipt of a copy of Mr. Pratt's May 17th . 9 letter to the Grievance Settlement Board constitutes, per se, an effective and irrevocable withdrawal' of the grievance is hereby dismissed. DATED at Toronto, this 18th day of April. 1989. A - T. Kearney, Member D. Wallace, Member