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HomeMy WebLinkAbout1996-1318.Aleong.97-03-10EMPLOY& DE LA COURONNE DE L’ONJARD BmBonRD COMMISSION DE SETTLEMENT RlkGLEMENT DES GRIEFS 180 DUNDAS STREET WEST; SUlTE 2100, TORONTO ON A&G 128 180, RUE DUNDAS OUES’I; BUREAU 2100, TORONTO (ON) M5G lZ8 TELEPHONE/TiLtiPHONE : (416) 328- 1388 FAC.SIMILE/TiLLiCOPIE : (416) 326-1396 GSB # 1318/96 OLBEU # OLB186/96 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN O.V. Gray Vice-Chairperson OLBEU (Aleong) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer FOR THE GRIEVOR C. Flood Counsel Koskie & Minsky Barristers & Solicitors FOR THE EMPLOYER J. Brooks Counsel Genest, Murray, DesBrisay, Lamek Barristers & Solicitors HEARING January 9, 24, 1997 DECISION The employer terminated Quentin Aleong’s employment by letter dated March 11, 1996. Over 4 months after he received the letter, Mr. Aleong grieved the termination. The employer says the grievance should be dismissed as un- timely, without considering its merits. That is the issue addressed in this deci- sion. Facts The grievor began working for the employer a casual employee in July 1980. In December 1995 he was accepted by the Royal Canadian Mounted Police (“RCMP”) for training at its academy in Regina, Saskatchewan. The training pe- riod was 26 weeks beginning January 29, 1996. Mr. Aleong understood that the training program was rigorous. He was not sure he would complete it success- fully. He told the employer he did not want to resign his position with the em- ployer immediately. In fact, he hoped that upon becoming an RCMP constable he would be posted to Toronto and have the opportunity to work at both jobs. As a result, he asked for a 26 week leave of absence. The employer initially denied the grievor’s request for a leave of absence, then granted a one month leave by letter dated January 26, 1996. That letter read as follows: Further to your letter of December 13, 1995 and my response of January 8, 1996, I have now had an opportunity to further review your request for a 26 week leave of absence wit,hout pay. Based on my review and taking into consideration the operational require- ments of your store, I am pleased to advise that we are able to grant a one month leave of absence without pay, commencing January 29, 1996. This is being granted on a once only basis and any extension to t,his leave will not be granted. You are requested to notify your store manager no later than March 1, 1996 as to your availability. If we do not hear from you by March lst, you will be deemed to have abandoned your posit,ion and your employment with the LCBO shall be terminated. -2- Please indicate your acceptance of the above by signing and rct,urning the original within two (2) weeks from the date of this letter. I trust this is of some assistance for you and I wish you well in your future endeavours. There is no evidence that the grievor signed and returned the letter, but he and the employer behaved thereafter as though he was on a one month leave of ab- sence. Shortly before the grievor left for Regina in late January 1996, he spoke with a union representative, Millie Briffa. Another employee had made him aware of clause 31.5(b) of the parties’ collective agreement, which provides 31.5 . . . (h) A casual employee will lose all seniority and his/her employment will be deemed to have been terminated if he/she is unavailable for work for a period of three (3) months or more exclusive of any approved leave of absence. He testified that it seemed to him this meant that he could be absent from the store for up to three months. He asked her whether that is what it did mean, and she replied that that was what it was supposed to mean. He told her about his opportunity to go to Regina. He testified that she advised him to go to Regina and said that when he came back if there was any problem “we’ll file a grievance for you.” When it was put to him in cross-examination that that had been his tes- timony, the grievor testified that Ms. Briffa had said “we’ll fight for you.” He said he assumed this meant “a grievance or whatever they decided to do.” As his first month of RCMP training was coming to an end, the grievor was still not confident of success. He testified that in a weekly telephone call home several days before March 1st he asked his mother to call the manager, tell him that the training was very hard and ask for an extension of his leave. He had frostbite and severe bronchitis at the time, and may have told her that. His mother testified that as a result of that call she thought the grievor was sick. She called the store manager and told him the grievor could not come back because he was sick. She testified that he replied that the grievor would have to provide a doctor’s note. In the third or fourth week of March, the grievor received the following letter from t,he employer dated March 11, 1996: -3- This letter is further to my previous correspondence of January 26th con- cerning your request for a 26 week leave of absence without pay. You will recall that you were granted a one month leave without pay com- mencing January 29, 1996. You were further advised that you were to con- tact your store manager no later than March 1, 1996 and advise him of your availability. To date, you have failed to do so. As outlined in our January 26th letter, your failure to advise your manager of your availability would be deemed as abandonment of your position and, as such, your employment with the LCBO would be terminated. In light of your failure to comply with this letter, I regret to advise you that effective immediately, your employment with the LCBO is hereby terminated. The grievor testified that he was shocked and surprised by the letter. He testi- fied in chief that during his next weekly call home he asked his mother whether she had spoken to the store manager, and that she replied that the manager had said that the only way he could come back was with a doctor’s note. He was asked in cross-examination why he had not asked his mother about the outcome of her call to the manager in any of the weekly calls home he made after the one in which he asked her to call the manager and before he received the letter. He then testified that he had asked about it in one of those earlier conversations, and had also been told that the store manager had said he would have to supply a doctor’s note. The grievor did not do anything about the letter while he remained in Re- gina. He said it seemed so final, he did not know what he could do. He did not attempt to contact the employer himself, either after his mother told him that the response to his request for extended leave was that he would have to provide a doctor’s note or after receiving the letter of March 11, 1996. He testified at length about how busy his weekdays were during training, the limited opportu- nities to make telephone calls and his limited financial resources in relation to the cost of long distance calls. He did not ask his mother to contact the employer again. He did not attempt to contact Millie Briffa or any other union representa- tive from Regina. When asked why, he said that he did not have the union’s tele- phone number and that his mother had been unable to find it for him in the To- ronto telephone book. After receiving the termination letter, the grievor carried on with his RCMP training. He did not complete it, though. He was discharged from the -4- training program in mid June 1996 after failing to perform to a satisfactory level in the use of firearms. The grievor returned to Toronto on June 14, 1996. He was exhausted and depressed, and did not do much of anything for the first few days after his re- turn. Thereafter, he attended to other personal business and spoke to a couple of lawyers concerning his discharge by the employer. He did not contact the union until early July. He wanted to speak to Millie Briffa. She was then on vacation or otherwise unavailable. He finally did speak with her on July 23, 1996 and, as a result, the grievance dated July 29, 1996, now before me was prepared, signed by the grievor and filed. Article 27 of the parties’ collective agreement provides, in part, as follows: 27.3 27.4 27.6 Stage 1 (Complaint Stage) (a) (i) An employee who has a complaint or a difference shall dis- cuss the complaint or difference with his/her supervisor, as designated by the Employers, within ten (10) days of the em- ployee fmst becoming aware of the circumstances giving rise to the complaint or difference. . . . (c) If the complaint or difference is not satisfactorily resolved by the supervisor, it may be processed within an additional ten (10) days from the date of the supervisor’s response or the expiration of the time Limits set out in (a) above, in the following manner. Stage 2 (a) The employee may file a grievance in writing with his/her super- visor specifying the clause or clauses in t,his Agreement alleged to have been violated. (h) The supervisor shall complete an investigation of the grievance and provide the grievor with his/her written decision within fif- teen (15) days of receiving the grievance. The investigation may include a meeting with the employee affording him an opportu- nity to be heard. Stage 3 (a) (i) If the grievance is not resolved under Article 27.4, the em- ployee may submit the grievance to the Chairman .of the LCBO or Chairman of the LLBO or their respective desig- nees [sic] within five (5) days of the date that he/she received the decision under Article 27.4. 27.6 Stage 4 If the grievor is not satisfied with the decision of the Chairman or designee [sic] or if a decision is not received within the specified time limits, the grievor may apply to the Crown Employees Grievance Set- tlement Board for a hearing of the grievance within five (5) days of the date he/she received the decision or within five (5) days of the expiration of the specified time limit for receiving a decision. 27.7 An employee claiming he/she has been dismissed without just cause shall be entitled to file a grievance commencing at Stage 3 provided he/she does so within ten (10) days of the date of the dismissal. The written grievance here was submitted at stage 2, not stage 3. There is no evidence of any pre-filing discussion of the sort contemplated by Article 27.3(a), nor any suggestion that the absence of such a discussion is of any signifi- cance . Jean Chaykowsky, an OLBEU representative for 20 years, testified that of the 5000 LCBO employees covered by the parties’ collective agreement, 3000 are casual. She said that the issue raised here - whether article 31.5(b) allows a casual employee to remain unavailable without leave for up to 3 months without risking termination - is important to the union and to those casual employees and has not been addressed in any previous arbitration award. There is no evidence that the grievor’s delay in filing this grievance preju- diced the employer’s ability to respond to it on the merits at arbitration. Indeed, the employer conceded that there was no prejudice. Argument Union counsel argued that since article 27.7 does not require that a dis- charge grievance be filed at step 3, such a grievance can be filed at either step 2 or step 3. The time limit for filing at step 2 depends on when the grievor first be- came “aware of the circumstances giving rise to the complaint or difference.” This is a subjective test: OPSEU (Pierre) and Ministry of Correctional Services, 0492/86 (February 22, 1988, Verity), jud. rev. denied sub nom. The Queen in Right of Ontario as represented by the Ministry of Correctional Services u. Ontario Public Service Employees Union and the Grievance Settlement Board (1990), 74 O.R. (2d) 700 (Ont. Div. Ct.), OLBEU (Gordon) and LCBO, 0048189 (January 10, 1991, Dissanayake), OPSEU (Vandenheuvel et al) and Ministry of th,e Environ- ment, 2086/91 (May 7, 1992, Low), OLBEU (M) and LCBO, 727191 (July 9, 1992, -6- Roberts). He argued that this subjective test is not satisfied unless and until the grievor knows of three things: the existence of the factas on which the complaint is based, the alleged rights on which the complaint is based and the process in which the complaint could be asserted. The grievor here did not know of the pro- cess in which his complaint could be asserted until he met with Millie Briffa on July 23, 1996, less than 10 days before the grievance was filed. Accordingly, he submitted, the grievance was not untimely. In the alternative, union counsel submitted that if I found that the griev- ance was not timely filed I should extend the time for filing in the exercise of my jurisdiction under subsection 48( 16) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A (“the LRA”), which applies to these proceedings by virtue of subsec- tion 7(3) of the Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38, as amended. Subsection 48(16) of the LRA provides: (16) Except where a collective agreement states that this subsection does not apply, an arbitrator or arbitration board may extend the time for the taking of any step in the grievance procedure under a collective agree- ment, despite the expiration of the time, where the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension. Union counsel submitted that the discretion afforded by what is now sub- section 48(16) of the LRA should be exercised as arbitrator Burkett suggested in Re Becker Milk Compuny Ltd. and Teamsters Union, Local 647 (1978), 19 L.A.C. (2d) 2 17 at 220-22 1: The exercise of the equitable discretion vested in an arbitrator under s. 37(5a) [now 48(1(S)] of the Act requires a consideration of at least. three fac- tors. These are: (i) the reason for the delay given by the offending party; (ii) the length of the delay; (iii) the nature of the grievance. If the offending party satisfies an arbitrator, notwithstanding the delay, that. it acted with due diligence, then if there has been no prejudice the arbitrator should exer- cise his discretion in favour of extending t,he time-limits. If, however, the of- fending party has been negligent or is otherwise t,o blame for the delay, ei- ther -in whole or in part, the arbitrator must nevertheless consider the sec- ond and third factors referred to above in deciding if reasonable grounds ex- ist for an extension of the time-limits. In so far as Re Pamour Porcupine Mines Ltd. (Schumacher Division) and c’.S. W. (1976), 12 L.A.C. (2d) 122 (Dunn), stands for the proposition that the only factor to be considered is the “reasonableness of the excuse” for the delay, 1 respectfully disagree. The purpose of the section is to alleviat,e against technical bars. If the offending party has been negligent in its processing of the grievance but, the delay has been of short. duration an arbitrator would be permitted t.o rely on the short period of delay as constit,ut,ing reasonable grounds for an extension. If the -7- grievance involves the termination of an employee, as distinct from some lesser form of discipline, this is also an equitable consideration which must be taken into account, in deciding if there are reasonable grounds to extend the time-limits. One arbitrator has gone so far as to state that in a discharge grievance, . . . there would have to be a very clear case of unexcused, unreasonable delay and prejudice to the employer before it would be proper to deprive the grievor of the right to a hearing on the merits. (Emphasis added.) See Re Lincoln Place Nursing Home and Service Employ- ees Union, unreported, July 8, 1977 (Rayner). The term “reasonable grounds for the extension” as found in s.37(5a) of the Act is not synonymous with the reasonableness of the excuse advanced by the offending party. Having re- gard to the purpose of the section the term carries a broader signification which requires the arbitrator to weigh a number of factors, including but not necessarily restricted to those which have been set out above. Counsel for the union argued that in considering the delay here I should take into account the grievor’s difficulty dealing with matters from Regina. He noted that the discharge letter did not refer to cause for discharge or to the right to grieve. The grievor had testified that he was not familiar with the details of the grievance process, and that he did not know what he could do. Counsel sub- mitted that in any event the fact that the grievance here concerns the termina- tion of the grievor’s employment, together with the importance to the union of the issue it raises, should outweigh any inadequacy in the explanation for the delay. In addition to awards already mentioned, union counsel referred in argu- ment to Re Toronto Western Hospital and Ontario Nurses’ Association (1983) 9 L.A.C. (3d) 91 (Teplitsky), Re Corporation of the City of Toronto and Canadian Union of Public Employees, Local 43 (1983) 12 L.A.C. (3d) 355 (Knopf), Re St. Jo- seph’s Hospital, Guelph and Ontario Nurses’ Association (1984) 15 L.A.C. (3d) 376 (Brent), Re Peterborough Civic Hospital and Canadian Union of Public Em- ployees, Local 19 (1990), 11 L.A.C. (4th) 186 (E mrich), Re Corporation of City of Toronto and Canadian Union of Public Employees, Local 43 (1990) 17 L.A.C. (4th) 420 (Springate), Re Ferranti-Packard Transformers Ltd. and United Steel- workers of America, Local 5788 (1993) 36 L.A.C. (4th) 307 (Haefling), Re Metro- politan Licensing Commission and Canadian Union of Public Employees, Local 79 (1995) 47 L.A.C. (4th) 182 (Springate), Re T.R.E. Inc., Welland and United Steelworkers, Local 8696 (1983) 10 L.A.C. (3d) 295 (Brent), Re John Ziner Lum- ber Ltd. and Teamsters Union, Local ,330 (1996), 56 L.A.C. (4th) 429 (Mitchnick), -8- Re Queensway General Hospital and Ontario Nurses’ Association (unreported, August 22, 1996, Kaplan), and Re Corporation of City of Thunder Bay and Ca- nadia.n Union of Public Employees, Local 87 (1991) 20 L.A.C. (4th) 361 (Char- nw). Counsel for the employer argued that the time limit for filing a grievance about dismissal is as set out in article 27.7, which has no subjective element, and that filing at set 2 is not an option for dismissed employees. In the alternative, he submitted that the decision in Gordon misinterpreted the test for timeliness at step 2 when it found that “circumstances” embraced anything other than facts. In any event, the grievor clearly knew of the alleged right on which he now relies even before he left for Regina, so even on the interpretation in Gordon the time began to run when the grievor received the letter. On that view, he noted, the correctness of the decision in Gordon would not have to be resolved here: OLBEU (M) and LCBO, 727/91 (July 9, 1992, Roberts). With respect to timeli- ness, counsel also referred to Re Leo Baeck Day School and Association of Gen- eral Studies Teachers in Hebrew Day Schools (1995) 52 L.A.C. (4th) 235 (Sargeant). With respect to the claim for relief from the time limits under subsection 48( 16), counsel for the employer argued that the significant delay is not reasona- bly explained by real or anticipated difficulties of communication by telephone from Regina. Counsel noted that the grievor could have communicated by mail. He invited me to conclude that the grievor was simply not concerned enough to make the effort either to clarify the apparent misunderstanding about what his mother was supposed to have asked nor, later, to protest the termination of his employment. He also noted in that regard that after he returned to Toronto, the grievor waited over a month before discussing his situation with someone at the union. While acknowledging that this is a discharge grievance, counsel argued that the arbitral jurisprudence did not say that this is enough by itself to war- rant an extension. It is a factor, he said, not the factor. Similarly, the importance of the question of interpretation is a factor, not the factor. In addition to awards mentioned earlier, employer counsel referred to Re General Freezers Ltd. and United Steelworlzers, Local 7455 (1983), 9 L.A.C. (3d) 279 (O’Shea), Re Bakery Glaco Inc. and Canadian Automobile Workers (1991), 21 L.A.C. (4th) 116 (O’Shea), and Re Bakery Glaco (Ecko Canada Inc.) and Canadian Automobile Workers, Local 124 (1991), 2 1 L.A.C. (4th) 116 (Warrian). Decision When the grievor left for Regina, he knew about Article 31.5(b) of the col- lective agreement. He believed it meant that his being unavailable for a period of less than three months beyond any leave the employer granted should not result in termination of his employment, He knew that the union shared that view, and that the union would fight for him if the employer acted in a manner inconsistent with that view. He thought that fighting would or might involve filing a griev- ance. He had been a bargaining unit employee for 16 years, He knew enough to speak to a union representative when he was unsure what his rights were under the collective agreement. Although he had never filed a grievance himself, he knew that grievances are filed to deal with disputes, He said his knowledge of the right to file a grievance was “limited,” that it was a “process not completely unknown to me, but much of it was a mystery.” The Gordon decision does not appear to me to say that the time limit de- scribed in article 27.3(a) runs only when the grievor has a thorough, detailed un- derstanding of the grievance process. In Gordon, the grievor was not aware that the right on which she relied had been added to the collective agreement until shortly before she made her complaint about earlier events. The board said that As under the OPSEU agreement, the “complaint or difference” referred to in article 27.3(a)(i) must be a complaint or difference under the collective agreement. In our view, the “circumstances” giving rise to such a complaint or difference are two fold. First, there must be a right under the collective agreement. Second, there must be an act or omission by a party to the agreement which the other party feels has abridged or contravened that right. Before an employee can be said to have become aware of “the circum- stances giving rise to the complaint or difference” under article 27.3(a)(i), he or she must be aware of both the existence of a right and a factual basis which may contravene that right. As under the OPSEU agreement, the par- ties, by alluding to the employee’s awareness, have intended to introduce a subjective test. The intent is that an employee must act expeditiously once he or she becomes aware that a right under the collective agreement may have been contravened. When he learned that the employer had purported to terminate his em- ployment, the grievor here already knew of the right that he says that contra- vened. Indeed, he already knew that a contravention was something that could - 10 - be the subject of a fight the union would take up for him. Accordingly, the inter- pretation in Gordon does not assist the grievor. I do not have to decide whether the interpretation in Gordon is correct, nor whether a discharge grievance can be filed at step 2 of the grievance procedure. Assuming that the union is right on both points, this grievance is out of time. That is so, of course, whether the grievor was actually aware of the applicable time limits or not. The grievor’s explanation for his delay in taking action is not reasonable. Indeed, parts of it are difficult to believe. After he received the letter, he could have promptly done something to communicate to the employer or the union his disagreement with what the employer had done. It is hard to believe that some- one whose only deficiency as a potential police officer was an inability to shoot people could not figure out how to contact the union from Regina. Nevertheless, I agree with arbitrator Springate’s observations at page 194 of his award in Re Metropolitan Licensing Commission and Canadian Union of Public Employees, Local 79, supra: Although General Freezers and certain other cases have held that the reason for a delay must itself be reasonable before a missed time-limit can be extended, this approach has now generally been rejected. Instead most arbi- trators follow the reasoning in Re Becker Milk Co. and Teamsters Union, Lot. 647 (1978), 19 L.A.C. (2d) 217 (Burkett), where it was held that the term “reasonable grounds for t,he extension” in the Act is not synonymous with the reasonableness of the excuse advanced by the offending party. In the result, while the reason for the delay is one of the factors looked at, other considerations are also taken into account, including the length of the delay and the nature of the grievance. While the nature of the grievance is not the only factor in assessing whether there are reasonable grounds for extension, it is a very important factor in discharge cases. In Re Becker Milk Company, arbitrator Burkett quoted arbi- trator Rayner’s view that “there would have to be a very clear case of unexcused, unreasonable delay and prejudice to the employer before it would be proper to deprive the grievor of the right to a hearing on the merits.” While other arbitra- tors might not be so categorical, those who reject the Gerzeral Freezers interpreta- tion of what is now subsection 48(16) of the LRA do seem generally to relieve against poorly explained delays of a matter of months occasioned by grievors in discharge cases, when the employer would suffer no prejudice. - ll- Subsection 48(16) identifies two criteria: reasonable grounds and the ab- sence of substantial prejudice. The award in Re Becker Milk Company identifies three considerations in assessing reasonable grounds: the reason for the delay, the length of the delay and the nature of the grievance. One might ask what sig- nificance the length of the delay has in the analysis when it has not caused the employer any prejudice. A delay may reflect bad faith, or a deliberate or reckless disregard for negotiated time limits. That would be difficult to countenance, par- ticularly if the delay was caused by a person or persons acting on behalf of the union that agreed to the time limits. There is none of that here. There is no sug- gestion that the union knew of the discharge or of the grievor’s desire to chal- lenge it before the grievor spoke with Millie Briffa. I do not think it can be as- sumed without proof that a rank and file employee would be aware that there are short time limits on the filing of a grievance. I accept that the grievor was , not. The delay here does not reflect bad faith, or a deliberate or reckless disre- gard for negotiated time limits. There may be other ways in which non- prejudicial delay might outweigh the importance of having a discharge grievance heard on its merits, but none has been demonstrated here. Accordingly, having regard to the importance of the grievance to the grievor and the union and the fact that an extension would cause the employer no prejudice, notwithstanding the length of the delay I grant the requested ex- tension of the time limit for filing this grievance. The delay in filing the griev- ance will be taken into account in assessing any compensation for which the em- ployer may be found liable if the grievance succeeds on its merits. The grievance is to be rescheduled for hearing in consultation with the parties. Dated at Toronto this 10th day of March, 1997.