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HomeMy WebLinkAbout2005-3601.Sin.07-04-24 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2005-3601 UNION# OLB001/06 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Sin) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Nimal V. Dissanayake Vice-Chair FOR THE UNION Laurie Kent Koskie Minsky LLP Barristers and Solicitors FOR THE EMPLOYER Alison Renton Counsel Liquor Control Board of Ontario HEARING April 17, 2007. 2 Decision The grievor, Mr. Lawrence Sin, is a casual employee employed by the employer. He has filed a grievance with respect to a job posting for the position of Product Consultant, for which he had applied unsuccessfully. That grievance came before the Board for hearing on April 17, 2007. At the commencement of the hearing, the parties raised an issue that had arisen between them. The employer noted that the grievance alleges a violation of article 31.4(b) of the collective agreement, which provides: The Employer agrees to give consideration to the qualifications and ability of casuals for permanent full-time vacancies at the entry level in their geographic area, provided that no permanent part-time employees have applied. Where qualifications and ability are relatively equal, seniority shall be the determining factor. The employer had given notice to the union that it would be making a motion to the effect that the Board lacked jurisdiction to deal with the grievance. Employer counsel pointed out that article 31.4(b) requires the employer to give consideration to the qualifications and ability of casuals only with respect to permanent full-time vacancies “at the entry level”. The vacancy which forms the subject of the grievance filed by the grievor, the position of Product Consultant, is not an entry level position. It is a higher ranked position with a higher rate of pay than the entry-level position in the stores system, which is the position of Customer Service Representative. On that basis employer counsel was proposing to move that the Board decline to hear the grievance. 3 The union disputed the employer’s position that article 31.4(b) had no application to the circumstances of the instant grievance. However, besides opposing the employer’s motion on its merits, union counsel took the position that in any event the employer was not entitled to take this position for the first time at arbitration. The union asserted that the employer is estopped from taking such a position. Secondly, the union took the position that the employer had waived any right it had to object to the arbitrability of the grievance by proceeding through the grievance procedure without any objection. It was pointed out that the objection was first raised after the grievance had been referred to arbitration and the hearing scheduled. The parties requested that the Board initially hear and determine the waiver issue. While there appears to be several issues in dispute between the parties, including the issue of whether article 31.4(b) has application to the facts of this case, whether the employer is estopped from claiming that it has no application, and whether the employer acted in a manner that was arbitrary, discriminatory or in bad faith, even if article 31.4(b) had no application, this award deals solely with the issue of whether the employer is precluded from making the proposed motion by the operation of the doctrine of waiver. Union counsel cited the following authorities. Re Regency Towers Hotel Ltd., (1973) 4 L.A.C. (2d) 440 (Schiff); Re Falconbridge Ltd., (2002) 112 L.A.C. (4th) 243 (Shime); Re Municipality of Metropolitan Toronto, (1995) 49 L.A.C. (4th ) 289 (Tacon) and Re Campbell and Stephenson et al, (1984) 44 O.R. (2d)656 (Ont. Div.Ct.). Employer counsel relied on the following authorities. Re Bell G.S.B. 683/01 (Dissanayake); Re Atomic Energy of Canada Ltd., (1994) 41 L.A.C. (4th) 310 (Knopf); Re Children’s Aid Society of Toronto, (2002) 111 L.A.C. (4th) 43 (Devlin); Re Ontario Power 4 Generation and Society of Energy Professionals, (2004) 137 L.A.C. (4th) 44 (Goodfellow), and Re Hawker Siddeley Canada Inc. (1991) 21 L.A.C. (4th) 289 (Joyce). Relying on the authorities listed above, union counsel submitted that the grievance procedure set out in the collective agreement is intended to provide an opportunity for the parties to discuss, and if possible resolve, all issues relating to the grievance. The parties here did not get that opportunity because the employer did not raise the issue it now raises, that article 31.4(b) has no application to the grievance, at any time during the grievance procedure. The employer’s response is that only procedural defects may be waived. Counsel submitted that substantive rights and jurisdictional objections are not subject to the doctrine of waiver. Counsel stated that it was unfortunate that the objection was not identified and raised earlier. However, she submitted that since the objection is not based on a procedural defect, the employer was entitled to raise it at any time. Union counsel did not dispute the proposition that a jurisdictional objection is not subject to waiver. That proposition is well established. For example, in Re Atomic Energy of Canada (supra), at p. 319 the Board wrote, “The late raising of this jurisdictional objection is unfortunate. But a jurisdictional defect cannot be waived. It can be raised at any time because of the fundamental importance of the issue.” However, union counsel argued that the objection raised here did not directly go to the Board’s jurisdiction, but was rather a matter of a dispute between the parties on the proper interpretation of article 31.4 (b). I agree that the objection raised by the employer is not properly characterized as a “jurisdictional” objection. Nevertheless, in my view, the objection raised by the employer is not 5 subject to waiver. Article 31.4(b) confers a substantive right on casual employees to have their qualifications and ability considered in job competitions in certain circumstances. The employer’s proposed motion is to the effect that in this particular grievor’s circumstances, he is not entitled to that substantive right. The objection is about the grievor’s entitlement to rely on the rights conferred by article 31.4(b). In those circumstances, the employer cannot waive its right to argue that the grievor is not entitled to the substantive rights under article 31.4(b) in his particular circumstances. The objection is not based on a procedural defect, but on the grounds that the grievor does not meet the pre-requisites for entitlement to substantive rights set out in article 31.4(b). As I held in Re Bell (supra), substantive rights are not subject to the doctrine of waiver. While union counsel is correct that the substantive right under article 31.4(b) is that of the grievor, and not of the employer, that does not change the result. The employer is not subject to waiver because of its delay in taking the position that the grievor does not meet the prerequisites to claim the substantive rights conferred by the provision. In the result, I find that the doctrine of waiver does not preclude the employer from proceeding with its motion. I remain seized with jurisdiction to deal with all outstanding issues relating to the instant grievance. Dated this 24th day of April 2007 at Toronto, Ontario. Nimal Dissanayake Vice-Chairperson