HomeMy WebLinkAboutGosselin 13-07-02In the Matter of an Arbitration
Pursuant to the Ontario Labour Relations Act
Between:
TRANSFIELD SERVICES
(the Employer)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(the Union)
Re: Grievance of Paul Gosselin - Failure to Recall
A W A R D
PAULA KNOPF - ARBITRATOR
APPEARANCES:
For the Employer: Saeed Ganji, Project Manager
Sandra Morrison, Office Manager and Senior Human Resources
Manager
For the Union: Ed Holmes, Counsel
Brenda Wood, Staff Representative
Jennifer Roukkula, Regional Grievance Officer
Keith Bruyere, Steward
Paul Gosselin, Grievor
The hearing of this matter was held in Thunder Bay, Ontario, on June 24, 2013.
This grievance alleges a failure to recall the Grievor to a Seasonal Patrol Maintenance
Position. The Employer denies that there has been any violation of the Collective
Agreement and asserts a preliminary objection to the timeliness of this grievance. The
parties agreed that the objection should be dealt with by a decision rendered before any
consideration is given to the merits of the case.
The facts giving rise to the preliminary objection are not in dispute. The relevant
chronology is as follows:
• November 6, 2012 - the Grievance was filed
• November 12, 2012
i) A Stage 2 meeting was held with the Grievor and the Union.
ii) The Employer’s Senior Human Resources Representative, Ms. Sandra
Morrison, advised the Union and the Grievor that the grievance was denied.
The Union understood that a letter confirming the denial would be forthcoming
within seven days.
iii) A letter from the Employer denying the Grievance was drafted, with a copy
prepared for the Union, and delivered to the Post Office by Ms. Morrison.
• November 28, 2012 - The Stage 2 denial envelope containing the letter
addressed to the Grievor is post marked by Canada Post.
• November 29 or 30, 2012 - The Stage 2 denial letter is received by the Grievor.
• December 18, 2012 - The Grievor applied to refer the grievance to arbitration.
The relevant provisions of the Collective Agreement are as follows:
ARTICLE 22 - GRIEVANCE PROCEDURE
. . .
22.1 It is the intent of this Agreement to adjust as quickly as
possible any complaints or differences between the
parties arising from the interpretation, application,
administration or alleged contravention of this
Agreement, including any question as to whether a
matter is arbitrable.
STAGE ONE
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22.2.1 It is the mutual desire of the parties that complaints of
employees be adjusted as quickly as possible and it is
understood that if an employee has a complaint, the
employee shall meet, where practical, and discuss it
with the employee's immediate supervisor within thirty
(30) days after the circumstances giving rise to the
complaint have occurred or have come or ought
reasonably to have come to the attention of the
employee in order to give the immediate supervisor an
opportunity of adjusting the complaint.
22.2.2 If any complaint or difference is not satisfactorily settled
by the supervisor within seven (7) days of the
discussion and/or meeting, it may be processed within
an additional ten (10) days in the following manner:
STAGE TWO
22.3.1 If the complaint or difference is not resolved under
Stage One, the employee may file a grievance, in
writing, through the Union, with their immediate
supervisor who will in turn forward the grievance to the
senior human resources representative for the ministry
or his or her designee.
22.3.2 The senior human resources representative or his or
her designee shall hold a meeting with the employee
within fifteen (15) days of the receipt of the grievance
and shall give the grievor his or her decision in writing
within seven (7) days of the meeting with a copy to the
Union steward.
22.4 If the grievor is not satisfied with the decision of the
senior human resources representative or his or her
designee or if he or she does not receive the decision
within the specified time, the grievor may apply, through
the Union, to the Grievance Settlement Board (GSB) for
a hearing of the grievance within fifteen (15) days of the
date he or she received the decision or within fifteen
(15) days of the specified time limit for receiving the
decision.
. . .
22.14.2 In Article 22, "days" shall include all days exclusive of
Saturdays, Sundays and designated holidays.
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The Submission of the Employer
The Employer stressed that the decision to deny the grievance was communicated
clearly to the Grievor and the Union during the November 21st Stage 2 meeting.
Further, the decision was confirmed in writing and delivered to the Post Office the same
day. The Employer relies upon Article 22.4 requiring the referral to arbitration to take
place within 15 days of the decision to deny the grievance at the Stage 2 level. Since
the referral did not take place until December 18th, the Employer argues that the
grievance is untimely and should be dismissed at this stage.
The Submissions of the Union
The Union emphasized that Article 22.3.1 requires that the Stage 2 decision be given “in
writing” to the Grievor within seven days of the Stage 2 meeting. Further, Article 22.4
gives the Grievor 15 days from receipt of that Stage 2 decision to apply for arbitration.
Therefore, the Union argues that the triggering event for the calculation of the time for
referral must be the date of a grievor’s receipt of the Stage 2 written decision.
Since the Canada Post mark of November 28th means that the Grievor could not have
received the written decision before that date, the Union argues that the December 18th
referral to arbitration must fall within the 15-day time limit because of the exclusion of
Saturdays and Sundays from the count, pursuant to Article 22.14.2. The Union also
argues that if the Employer’s preliminary objection is sustained, this would result in a
“reading out” of the wording of Article 22.3.2 requiring that the Stage 2 answer is to be
delivered in writing.
The Decision
There is no doubt that the Grievor and the Union were clearly told that the grievance
was being denied during the Stage 2 meeting on November 21st. It is also not
contested that the written denial of the grievance was prepared and delivered to the
post office on November 21st.
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However, the Canada Post mark on the envelope to the Grievor also establishes that
the letter was not processed before November 28th by the postal service and therefore
could not have been delivered to the Grievor before the next day, at the earliest.
Accepting the facts in the best light for the Employer, the Grievor could therefore be
deemed to have received the Stage 2 answer on November 29th. He then referred the
matter to arbitration on December 18th. That was
• 27 calendar days after the Stage 2 meeting, or
• 19 calendar days after receipt of the Stage 2 letter, or
• 13 days after receipt of the Stage 2 letter, if one only counts the days within the
meaning of “days” under Article 22.14.2.
Therefore, the critical question in this case is when does the clock start for computing
the time for referral to arbitration under Article 22.4?
A Collective Agreement must be read as a whole. While Article 22.1 declares that the
parties' intent is to “adjust complaints . . . as quickly as possible.” The rest of the Article
sets out the timeframes for the processing of complaints.
In this case, the parties complied with all the time periods leading up to the Stage 2
meeting. Article 22.3.2 then requires the Senior Human Resources Representative to
convey his/her decision in writing within seven days of the Stage 2 meeting, with a copy
to the Union. The Employer also complied with this requirement.
Article 22.4 then specifies that the Grievor must apply for arbitration within 15 days “of
the date he received the decision,” [emphasis added]. Therefore, the critical date for
determining timeliness of the reference must be the date that the employee receives the
decision.
If the Employer is correct that the Stage 2 “decision” can simply be communicated orally
at the Stage 2 meeting, the requirement to deliver the decision in writing under Article
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22.3.2 is rendered meaningless. Therefore, the only way to read the Collective
Agreement as a whole is to conclude that the time for referral to arbitration must run
from the date that the written decision is received by the employee. This reading is
also consistent with the language throughout the Grievance Procedure article, requiring
notice and action to and by the employee personally. Further, Article 22.4 refers directly
to the “specified time limit for receiving the decision,” which can only be the written
decision referred to in Article 22.3.2.
Therefore, while the Employer tried to make its decision denying the grievance clear to
the Union and the Grievor on November 21st, the Collective Agreement requires that the
time for referral to arbitration be computed from the date the written decision is received
by the employee/Grievor. In this case, the evidence of the Canada Post date stamp on
the envelope addressed to the Grievor reveals that he could not have received the
Employer’s written decision before November 29th. Therefore, the referral to arbitration
on December 18th complies with the Collective Agreement because it falls within 15
“days” as days are counted by the parties for these purposes.
Accordingly, the Preliminary Objection is dismissed. This matter shall be scheduled for
continuation and consideration of the merits on a date(s) convenient to the parties.
Dated at Toronto this 2nd day of July, 2013.
____________________________
Paula Knopf - Arbitrator