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HomeMy WebLinkAbout1997-2216.Wicken.98-06-12 DecisionONMW CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD EMPLOYttS DE L4 COURONNE DE L’ONTARK) COMMISSION DE RliGLEMENT DES GRIEFS I80 DUNDAS STREET WEST, SUI 77F BOO, TORONTO ON M5G IZB 180, RUE DUNDAS OUES 7; BUREAU 800, TORONTO (OM MSG lZ8 TELEPtiONE/TiLiPHONE : (416) 326- 7388 FACSIMILE/T~LiCOPIE : (416) 326-1396 GSB#22 16197 OLB#3 9198 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before -THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Wicken) - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) BEFORE P. Knopf Vice-Chair - FORTHE UNION J. Noble Legal Counsel Ontario Liquor Board Employees Union FOR THE EMPLOYER A Renton Counsel Liquor Control Board of Ontario Grievor Employer REARING May6and21, 1998 . This is a discharge grievance. The Employer has raised a preliminary objection to the timeliness of the grievance. The grievance was tiled 16 months after the grievor received his notice of termination. The collective agreement provides: 27.3 (a) (i) An employee who has a complaint or a difference shall discuss the complaint or difference with his/her supervisor as designated by the Employers, within ten (10) days of the employee first becoming aware of the circumstances giving rise to the complaint or difference. * 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. 27.12 Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn. The Union asserts that the grievance should be considered timely by the application of a subjective test of timeliness. In the alternative, the Union asks that the arbitrator exercise the jurisdiction available under Section 48( 16) of the Labour ReZations Act to extend the time for the filing of the grievance. The facts are somewhat unusual. The grievor worked as a permanent part- time employee and had seniority of approximately six years at the time of the termination. He is classified as Liquor Store Clerk Grade 3. In the spring of 1993 the grievor sustained injuries as a result of an accident between a van and a bicycle. These injuries were so significant that since that time he was off work and in receipt of no fault private long term disability payments. -2- The Employer alleges that in August 1996, the grievor purchased six bottles of alcohol that were not processed through the cash register properly by another liquor store employee. The police were called in to investigate. Fraud related charges were laid against both the grievor and the cashier who had processed his purchase. At the time of his purchase the grievor had the status of an employee although he had been off work for approximately three years. On August 15, 1996 the grievor was issued a Notice Of Intended Discipline (NOID). The NOID invited the grievor to provide a written explanation of his actions within three days. The grievor testified that he wrote such an explanation and mailed it by way of registered letter to the Employer. The grievor testified that the letter was later returned to him because of problems with the address on the envelope he had mailed. The grievor admits that he made no other attempts to contact the Employer about responding to the NOID or explaining that his registered letter had gone astray. The grievor testified that he felt at the time that his three-day opportunity to respond had passed and that the Employer would go ahead and make the decision without his input. He decided to wait to see what the outcome of the disciplinary process would be. On September 16, 1996 the Employer wrote a letter of discharge to the grievor terminating his employment based on the events in August. The grievor acknowledges receiving this letter. He claims that when he received the termination letter he phoned the Union office and spoke to a male union representative who told him that because he had been off the payroll and not paying union dues for a number of years the Union “could not do anything” for him. The grievor believes that this advice came from the Union’s Mississauga office. Up to that point the grievor had been under the impression that his seniority and union membership were in tact. -3- The grievor testified that he then proceeded to seek advice from civil lawyers about his rights. He claims that he consulted lawyers in the law firm that was handling his personal injury and benefit claims. That law firm had recently sent a letter to his employer dated July 23, 1996 concerning his return to work and warning of a potential grievance being filed. Insofar as the discipline was concerned, the grievor testified that he was advised by that law firm that he should clear himself of the criminal charges first and then proceed to a civil action. He did not instruct that law firm to prepare an unlawful dismissal suit or to contact the Union to have it file a grievance on his behalf. The grievor cannot recall the name of the lawyer who gave this advice. He said he was never billed for the opinion. The grievor claims he also sought a second opinion from another civil lawyer and received telephone advice that since he was in the midst of criminal proceedings he should await the outcome of that action and then get in contact with that lawyer again about a possible civil suit. Again, the grievor says that he was not charged for this advice. The grievor also testified that he asked his criminal lawyer about the discharge. That lawyer was reluctant to give any advice saying that labour and employment law “are not his specialty.” The grievor was never advised by anyone to file a grievance or to take action against the Union to compel it to process a grievance on his behalf. The criminal charges proceeded through 15 months of remands until January 22, 1998 when the Crown withdrew the charges. The grievor testified that his criminal lawyer informed him that the Crown had first tried to suggest that the charges be withdrawn on the condition that the grievor agree not to challenge or grieve the -4- termination. The grievor’s criminal lawyer would not agree to such conditions and the Crown then withdrew the charges unconditionally. The grievor testified that it was at that point that he understood that he could file a grievance once he had been “cleared” of any criminal charges. The next day he phoned the union office, was put in touch with Jean Chaykowsky who had acted on his behalf a few years earlier settling a grievance for him. The grievor instructed Ms. Chaykowsky to file a grievance concerning the discharge on his behalf. She did so that very same day. The grievor admits that he was not in contact with anyone at the LCBO between the time of his termination and the filing of the grievance. The Employer was not aware that the grievor was ever contemplating challenging the discharge or the criminal charges. The evidence also established that there is some uncertainty as to whether the LCBO’s cash register receipts for the relevant day have been mislaid. These receipts would be necessary for proof of the criminal charges and the discharge case. The details of the problems with the location of those cash register receipts need not be recorded here. Suffice to say that the Employer is only certain that it is in possession of “light” photocopies of the original cash register receipts. This could have potentially caused a serious problem with the presentation of a discharge case if this case proceeded on its merits. However, the Union stipulated that if that matter did proceed on its merits the Union would not argue that the Employer had not made out a case for a discharge solely on the basis of the unavailability of the original cash register tapes. -5- gument Counsel for the Union first argued that the grievance has been filed in a timely manner. It was submitted that, on the basis of a subjective test, the evidence establishes that the grievor was not aware that he may have rights under the collective agreement until the day that the criminal charges were withdrawn, being January 22, 1998. He was relying on the advice he had received from civil lawyers and the information he had received from the Union around the time of the charges that he could not grieve and that he should await the outcome of the criminal charges. It was argued that Article 27.3(a)(i) sets up a subjective test that creates an expectation that the employee commence the grievance process within ten days of developing an awareness of the grievance. Since this grievance was filed immediately after the grievor became aware of his rights in January 1998, it was said that the grievor has met the timeliness requirements under the collective agreement. In support of this proposition the Union relied on the cases of OLBEU (Gordon) and Liquor Control Board of Ontario, GSB File No. 48189, unreported decision of Nimal Dissanayake dated January 10, 199 1 and Falcioni and Liquor Control Board of Ontario, unreported decision of W. Kaplan, GSB File No. 2308/91 dated July 21, 1992. In the alternative, the Union argued that this was an appropriate case to exercise the arbitrator’s jurisdiction to relieve against the time limits in the collective agreement. It was stressed that the grievor reasonably acted upon the advice he had received from the Union and from lawyers. It was argued that it was reasonable for the grievor to accept the concept that he could not and/or should not grieve until the criminal process had been completed. Further, it was argued that since this is a discharge case with consequences so serious to the grievor’s future employment, it is reasonable in all the -6- circumstances to exercise the jurisdiction to relieve against the time limits in the collective agreement. It was stressed that the grievor himself is not the cause of the delay and that he is the individual who is least able to bear the cost or consequence of the delay. The Union relied on the following cases in support of its position: Aleong and LCBO, GSB File No. 13 18/96, unreported decision of Owen Gray dated March 10, 1997, Becker A4iZk Company Ltd. and Teamsters Union, Local 647 (1978) 19 L.A.C. (2d) 217 (Burkett), Corporation of the City of Toronto and CUPE, Local 43 (1983) 12 L.A.C. (3d) 355 (Knopf), Metropolitan Licensing Commission and Canadian Union of Public Employees, Local 79 (1995) 47 L.A.C. (4th) 182 (Springate), John Ziner Lumber Ltd. and Teamsters Union, Local 230 (1996) 56 L.A.C. (4th) 429 (Mitchnick) and Ferranti- Packard Transformers Ltd. and United Steehvorkers of America, Local 5788 (1993) 36 L.A.C. (4th) 307 (Haefling). Counsel for the Employer stressed that the grievor did nothing at any time prior to the filing of the actual grievance to let this employer know that he intended to challenge the grievance. Counsel for the Employer acknowledged the grievor’s testimony regarding the registered letter sent in response to the NOID. However, it was stressed that when that registered letter was returned to the grievor, he would have realized that the Employer had not received the letter. Yet the grievor took no f%-ther steps in order to inform the Employer about his intentions. Accordingly, it was argued that the grievor himself is responsible for the delay and for the lack of knowledge that the Employer had about his intentions. Counsel also stressed that the grievor was sophisticated and knowledgeable about the grievance procedure because he had filed grievances in the past. Further, he had advised the Employer of his intentions to file a grievance about his return to work even though he was not in active employment in July 1996. This was said to amount to evidence that the grievor was aware of his rights to grieve and that he should be held responsible for any delays if he chose not to pursue those rights. -7- Counsel for the Employer also invited the arbitrator to find that the grievor was not a credible witness. The Employer challenged the veracity of the claim that the grievor had ever contacted the Union and asked that an adverse inference be drawn against the Union for its decision not to call any witness to corroborate the grievor’s story. Counsel for the Employer said that the grievor’s evidence about his contact with the Union was “extremely sketchy and vague”. Further, it was-said that the grievor’s evidence regarding his interaction with the two civil law firms was also “very sketchy, very vague and inconsistent.” Several inconsistencies in details were listed and said to be indicative of evidence that does not deserve credence. Further, the Employer took great exception to the fact that the reasons for the delay in filing the grievance were not communicated to the Employer until this hearing. Counsel for the Employer stressed that the delay involved in this case amounts to over 16 months and that all the cases cited by the Union involve delays of much less time than that. Counsel for the Employer sought to distinguish the Aleong case, supra in that the delay involved 14 months and that the grievor had 15 years’ seniority. Counsel relied on the following cases in support of the Employer’s argument: Greater Niagara General Hospital and O.N.A. (1981) 1 L.A.C. (3d) 1 (Schifi), Donwood Institute and O.P.S.E. U., LocaI 541 (1997) 60 L.A.C. (4th) 367 (Brandt), Clements and The Crown In Right of Ontario (Liquor Control Board of Ontario) (198 l), 28 L.A.C. - (2d) 289 (J.R.S. Prichard), Hotel-Dieu Grace Hospital and O.N.A. (1995) 47 L.A.C. (4th) 66 (Watters), Corporation of the City of Thunder Bury and C. U.P.E., Local 87 (1991) 20 L.A.C. (4th) 361 Chamey, Corporation of the City of Ottawa and Ottawa- Carleton Public Employees Union, Local 503 (1997) 67 L.A.C. (4th) 39 (Devlin), Hotel Dieu Cornwall and O.P.S.E. U., Local 469 (1997) 63 L.A.C. (4th) 72 (R.M. Brown), Helen Henderson Care and Service Employees Union, Local I83 (1992), 30 L.A.C. (4th) 150 (Emrich) and Bakery Glaco Inc. and C.A. K (199 l), 2 1 L.A.C. (4th) 116 (O’Shea). -8- The Decision Arbitrations were developed and designed to be an expeditious method of resolving employment disputes. The promise of labour peace and the removal of the threat of a strike during a collective agreement’s term were exchanged for the promise of a speedy, expert and final system of dispute resolution That is the raison d’etre of the grievance arbitration system. Further, the parties to this collective agreement have agreed that their grievance process will commence in an expeditious manner. They give themselves ten days to launch a grievance so that a party can be put on notice that a grievance exists and so that the parties can begin to move towards resolution. This is a common and appropriate approach. The first question to address in this case is whether there has been compliance with the terms of the collective agreement. Despite the 16-month hiatus between the grievor’s receipt of the termination letter and the grievance being filed, the Union asserts that the grievance is timely because it was filed immediately after the grievor thought it was appropriate to proceed, i.e. upon the removal of the criminal charges. This takes us to an analysis of the grievor’s explanation that the delay is the result of the information and advice he received from the Union and his private lawyers. The Employer has argued forcefully that the grievor’s explanation for the delay in filing the grievance was vague, inconsistent, implausible and not worthy of credibility. There are certainly some very strange and weak aspects to the grievor’s story. The fact that the Union did not corroborate it is not fatal to the grievor’s case. However on balance, I am prepared to conclude that the grievor received advice that he either could not or should not grieve or challenge his termination until the criminal process had run its -9- full course. This advice was wrong. It was wrong in law and was ill advised. The grievor could and should have filed a grievance as soon he became aware of his discharge. But be that as it may, I am prepared to accept, for purposes of the analysis to follow, that the grievor had a reasonable belief, based on advice received, that he should not file a grievance until the criminal process was complete. It is unfortunate that the advice was so wrong. Applying this finding to the situation in this case, it must be said that whether Article 27.3 or 27.7 creates an objective or subjective test, the facts in this case lead to the conclusion that the grievor filed the grievance out of time. This case is similar to the Aleong case, sup-a, where it was case where it was said, at page 9: The Gordon decision does not appear to me to say that the time limit described in article 27.3(a) runs only when the grievor has a thorough, detailed understanding of the grievance process.. _. When he [the grievor] learned that the employer had purported to terminate his employment, the grievor here already knew of the right that he says that contravened. Indeed, he already knew that a contravention was something that could be the subject of a fight the union would take up for him. Accordingly, the interpretation in Gordon does not assist the grievor. In the case before this Board, the facts establish that as soon as the grievor received the notice of termination he developed an intention to challenge the discharge. While he may have been misinformed and may not have had an appropriate understanding of the grievance process, he knew that he had rights that he intended to exercise. He believed there was a contravention of the collective agreement and he wanted either the Union or lawyers to pursue it for him. Further, Article 27.3 gives an employee ten days to complain after s/he first becomes “aware of the circumstances giving rise to the complaint or difference.” In - lo- this case, the grievor was aware of his termination as of September 16, 1996. He was aware of the nature of the allegations against him. I am prepared to accept that he wanted to challenge the termination at that time. Therefore he knew that there was a dispute with his employer and he also knew the circumstances giving rise to that dispute. This is not a collective agreement that allows a person to grieve after s/he becomes aware of his/her rights. The collective agreement contains the expectation that the grievance will be filed within 10 days of the grievor becoming aware of the circumstances which gave rise to the complaint. In the case of this grievance, this was not done. The grievance is clearly outside of the time limits contained in the collective agreement. This takes us to the question of whether this is an appropriate case to exercise the discretion available under section 48( 16) of the Labour Relations Act to extend the time for the filing of the grievance. Section 48( 16) provides: 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 agreement, despite the expiration of the time, or the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially be prejudiced by the extension. This provision has been interpreted by the often quoted statement in the Becker Milk Company case, supra, at page 221 where arbitrator Kevin Burkett wrote: The term “reasonable grounds for the extension” __._ is not synonymous with the reasonableness of the excuse advanced by the offending party. Having regard 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. - ll- The factors mentioned by arbitrator Burkett were: . 1. The reason for the delay given by the offending party . 2. The length of the delay . 3. The nature of the grievance This important decision has been applied in most of the cases cited by both parties. Further, it was amplified in the Greater Niagara General Hospital case, supra, where arbitrator Schiff identified six factors that should be considered in cases such as this. 1. The nature of the grievance 2. Whether the delay occurred in initially launching the grievance or at some later stage 3. Whether the grievor was responsible for the delay 4. The reasons for the delay 5. The length of the delay 6. Whether the employer could reasonably have assumed the grievance had been abandoned Taking these factors into consideration, it should be stressed at the outset that this is a discharge grievance. The grievor has approximately six years’ seniority plus two additional years’ service as a part-time employee. A discharge from his employment will have very significant consequences upon him in this very difficult and tight job market. However, it must be noted that the delay in launching this grievance occurred right at the initial stage. Because of this, the Employer had absolutely no idea that the grievor intended to challenge the termination. Indeed, the Employer was led to - 12- believe that the grievor had no intention whatsoever of challenging the grievance because there was no response to the NOID and the time limits in the collective agreement had passed. This put the Employer at a significant disadvantage because it was not put on notice of the fact that it must prepare a case for potential arbitration, gather the evidence that is necessary and arm itself against the challenge of the Union. Consideration should also be given to whether the grievor was responsible for the delay. Taken at its best, the grievor should be viewed as a layman who received inappropriate and inaccurate advice from both his Union and two law firms. However, the Union, as a party to the collective agreement, must bear some responsibility for the delay if the grievor’s evidence is accepted. If indeed he did receive advise from the Union office that it could not or would not process his grievance when he first asked that it be launched, the Union, as a party to this collective agreement, bears a significant share of the responsibility for the delay. When looking at the reasons for the delay, we are taken back to the evidence of the grievor’s explanation that he was awaiting the outcome of the criminal proceedings. While this advice was wrong, it is not unreasonable for a layman to have accepted this advice. There is no suggestion that there is any other reason for the delay The length of the delay is a very significant factor in this case. In none of the cases cited by the Union was there a delay of over 16 months. The cases dealing with delay often talk about the importance of having discharge cases heard on their merits despite delays of a matter of months. In the case at hand, we have a delay of well over one year. This very lengthy delay is the very type of thing that labour arbitration and the grievance process were designed to avoid. - 13 - Finally, the last factor to consider is whether the Employer could reasonably have assumed that the grievance had been abandoned. As mentioned above, the evidence in this case is clear that the Employer had no reason to suspect that a grievance would ever be launched. Therefore, it had a reasonable belief that the termination would never be challenged. This is a very hard case to decide. There is a tendency for arbitrators to allow discharge grievances to proceed on their merits when there is no prejudice suffered by the employer. In this case, the potential prejudice because of the concern about lost documents has been averted because of the Union’s stipulation that it would not challenge the Employer’s use of photocopies in order to prove its case. Further, any potential liability that would have been affected by the delay in the filing of the grievance could easily have been dealt with by way of an award of compensation running only from the date of the grievance. Therefore, it is tempting to allow the grievance to proceed on its merits. However, I have concluded that this is not an appropriate case to exercise a discretion to relieve against the time limits. Having weighed all the factors enumerated above and taken into consideration the fact that the grievor is a part-time employee with relatively short term seniority, it would be contrary to the principles of labour relations to allow this case to proceed given that the grievance was launched 16-l/2 months after the grievor received his notice of termination. The awards relied upon by the Union are of assistance in terms of the general principles that they set out. However, they involved delays with significant shorter periods than the delay in this case. There has been no case cited to me where a delay of this length and with similar language in the collective agreement was allowed to proceed through to arbitration. The discretion available under the Labour Relations Act gives the arbitrator equitable jurisdiction. But this jurisdiction is - 14- to be exercised only where the criteria set out in the section have been satisfied. In the case at hand I have taken into consideration all the factors listed above and given special regard to the length of the grievor’s service, the length of the delay, and the only explanation being that he received improper advice. Despite the able and persuasive argument advanced by counsel for the Union, it must be concluded that there are not reasonable grounds for extending the time limits for the filing of this grievance. I recognize that this result is unfortunate for the grievor as an individual However, this award is made based on the principles of labour relations concepts and the importance of the timely administration of the collective agreement i= ib DATED at Toronto, Ontario, this ti day of June, 1998 Paula Knopf - Vice-Chairperso f