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HomeMy WebLinkAboutWright 13-12-03IN THE MATTER OF THE ONTARIO LABOUR RELATIONS ACT, 1995 AND IN THE MATTER OF AN ARBITRATION B E T W E E N : KENNEDY HOUSE YOUTH SERVICES INC. (“the employer”) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 361 (“the union”) AND IN THE MATTER OF the discipline grievance, dated May 16, 2013, and the harassment grievance, dated June 4, 2013, of Selvin Wright. BEFORE: John McNamee, Sole Arbitrator APPEARANCES: For the Employer: Robert Budd (Counsel) Earl Fraser (Supervisor) Teresa Carroll (Superintendent) Angela Moncada (Human Resources Manager) For the Union: Ed Holmes (Counsel) Rebecca Stulberg (Counsel) Ian Brewster (Union Steward) Selvin Wright (Grievor) A hearing was held at Ajax, Ontario, on November 11, 2013. - 2 - A W A R D This is a preliminary award with respect to the employer’s motion to have me dismiss these grievances on the basis that I have no jurisdiction as a result of the union’s failure to follow the mandatory steps of the grievance procedure. The employer says that these grievances are not arbitrable because the grievor failed to comply with Article 8.02 of the collective agreement, and because the union and/or the grievor never referred either grievance to Step 2, or held a Step 2 meeting. The applicable provisions of the collective agreement are as follows: “Article 8 – Grievance Procedure 8.01 For purposes of this Agreement, a grievance is defined as a difference arising between the parties relating to the interpretation, application, administration or alleged violation of this Agreement including any question as to whether a matter is arbitrable. 8.02 It is the mutual desire of the parties hereto that complaints of employees shall be adjusted as quickly as possible, and it is understood that an employee has no grievance until he has first given his immediate supervisor the opportunity of adjusting his complaint. If an employee has a complaint, such complaint shall be discussed with his immediate supervisor within seven (7) calendar days after the circumstances giving rise to the complaint have originated or occurred. If the immediate supervisor is unable to adjust a complaint to their mutual satisfaction within five (5) calendar days the employee may proceed with the grievance procedure within five (5) calendar days following the decision of the immediate supervisor. Immediate supervisor for the purposes of this Collective Agreement means the first level of supervision outside of the bargaining unit. 8.03 The grievance of the employee properly arising under this Agreement must be adjusted and settled as follows: Step No. 1 The employee must submit a written grievance, signed and dated by the employee, to his immediate supervisor. The nature of the grievance, the remedy sought, and the section or sections of the Agreement which are alleged to have - 3 - been violated must be set out in the grievance. The immediate supervisor will deliver his decision in writing within five (5) calendar days after receipt of the grievance in writing. Failing settlement, the next step of the grievance procedure may be taken. Step. No. 2 Within five (5) calendar days following the decision under Step. No. 1, the employee must submit the written grievance to the Executive Director (or her designate). Within five (5) calendar days of the receipt of the grievance, by the Employer, (or the Union in the case of a policy grievance) a meeting shall be held to discuss the grievance. The grievor must be present at this meeting, unless the grievor is hospitalized and it is impractical to delay the meeting until the grievor is available. A decision in writing shall be delivered by the party receiving the grievance within five (5) calendar days after the meeting at which the grievance was discussed. Failing settlement, either party may submit the matter to arbitration within fifteen (15) days after the reply at Step No. 2 is given. If no written request for arbitration is received within such fifteen (15) calendar days period, the grievance shall be deemed to have been abandoned. 8.07 No adjustment effected under the grievance or arbitration procedures shall be made retroactive prior to the date that the grievance was formally presented to the Employer, or, if applicable, the date of the alleged violation provided that it does not exceed the time limits set out in Article 8.02. 8.10 An employee is entitled to Union representation at all stages of the grievance/arbitration procedure if he/she asks for it. ARTICLE 9 – ARBITRATION 9.01 If the Employer or the Union requests that a grievance be submitted to arbitration, it shall make such request in writing addressed to the other party to this Agreement, and at the same time name a Nominee. Within five (5) calendar days thereafter, the other party shall name a Nominee, provided however, that if such party fails to name a Nominee, as herein required, the Office of Arbitration of the Ministry of Labour of the Province of Ontario shall have power to effect such appointment upon application thereto by the party invoking the arbitration procedure. The two Nominees shall attempt to select by agreement a Chairperson of the Arbitration Board. If they are unable to agree upon such a Chairperson within a period of fourteen (14) calendar days, they shall then request the Office of Arbitration of the Ministry of Labour of the Province of Ontario to appoint a Chairperson. If the parties mutually agree, a sole Arbitrator may be substituted for a Board of Arbitration. In the event of such mutual agreement, the parties shall exchange names of potential Chairpersons in an effort to reach agreement within a period of fourteen (14) calendar days. If such agreement is not forthcoming within such time limit they shall then request the Office of - 4 - Arbitration of the Ministry of Labour of the Province of Ontario to appoint a Chairperson. 9.03 No matter may be submitted to arbitration which has not been properly carried through all requisite steps of the grievance procedure. 9.07 The time limits set out in both the grievance and arbitration procedures herein are exclusive of Saturdays, Sundays and paid holidays. Such time limits are mandatory and the failure to comply strictly with such time limits except by the written agreement of the parties shall result in: (a) If the grievance has not been processed by the Employer within the prescribed time limit, the grievance may be advanced to the next step by the grievor (or the Union in the case of a policy grievance) within the time limit as prescribed; (b) If the grievance has not been processed by the grievor (or in the case of a policy grievance by the Union) in accordance with all of the time limits prescribed, the grievance shall be deemed to have been settled and/or abandoned; (c) It is agreed and understood that Section 48(16) of the Labour Relations Act does not apply to this Collective Agreement.” Both parties called evidence with respect to the events involved in the processing of the two grievances. The employer called Earl Fraser, Supervisor, and Teresa Carroll, Superintendent. The union called Ian Brewster, Union Steward, and Selvin Wright, Grievor. There were several conflicts in the evidence between the witnesses and, where those conflicts are material, I have generally resolved them in favour of the union’s witnesses. In so saying, I should add that I found the employer’s witnesses to be candid, honest and straightforward throughout, but I also found that the evidence of the union witnesses was somewhat more compelling in that their memories of the events seemed somewhat more detailed. Accordingly, the facts as I find them are: a) On May 15, 2013, Mr. Fraser hand-delivered a letter to the grievor, advising him that he was being suspended for one, 12 hour shift as the result of an incident which had occurred at work on May 10, 2013. The letter was signed by Shelly Jaigobin, the employer’s executive director; - 5 - b) At the time that he received the letter, the grievor protested to Mr. Fraser to the effect that he believed that he was being treated unfairly. The protest was, most probably, pro forma, and the conversation was quite short. Mr. Fraser responded by telling the grievor that, if he did not like the decision, he could grieve it; c) The grievor filled out a disciplinary grievance on May 16, 2013. Mr. Brewster delivered that grievance to Mr. Fraser’s home at some point in the period May 16, 2013, to May 20, 2013; d) Mr. Fraser, Mr. Brewster, Ms. Douma (the employer’s Program Director) and the grievor met, at the workplace, on May 21, 2013, and failed to resolve the grievance. They met again on May 24, and once again failed to resolve the matter. Mr. Brewster described the May 24 meeting as a situation wherein Mr. Fraser was seeking some clarification as the matters discussed on May 21. There was no response from Mr. Fraser between the two meetings; e) On May 30, 2013, Mr. Fraser wrote to the grievor. In the letter, he said: i) that the grievor had no grievance because he had not followed the procedure in Article 8.02 and had failed to give Mr. Fraser an opportunity to resolve the matter; and ii) that the suspension had been imposed for just cause, and would not be removed from the grievor’s record; f) on June 13, 2013, the union wrote to Ms. Jaigobin, to advise that the suspension grievance was referred to arbitration; g) in the course of the meetings on May 21 and/or May 24, the grievor voiced an unrelated complaint to Mr. Fraser. He said that he was unhappy that a medical note which he had presented to the employer had been rejected. He was particularly unhappy that, at least by - 6 - his understanding, a similar note presented by another employee had been accepted. He told Mr. Fraser that if his (the grievor’s) note was ultimately accepted, he would be grieving claiming that he had been harassed; h) at some point during the meeting of May 24, Ms. Carroll “popped into the meeting” to ask the grievor to speak to her about a related issue with respect to his pay. The grievor did not say that the two of them discussed the suspension grievance; i) the grievor’s medical note was ultimately accepted, but there was no response from Mr. Fraser as to the grievor’s complaint. Accordingly, the grievor, who was then off on sick leave, met Mr. Brewster at a local, fast food restaurant, and filled out a harassment grievance dated June 4, 2013; j) Mr. Brewster met Ms. Carroll at the workplace on June 7, 2013, and, noting that Mr. Fraser was not at work that day, asked if he could leave the grievance with her. Ms. Carroll agreed, and testified that she was accepting the grievance on Mr. Fraser’s behalf. Ms. Carroll is the normal designate for the employer’s executive director, and is usually involved at step 2 of the grievance procedure; k) because the grievance dealt with a claim of harassment, Ms. Carroll decided to take the matter on herself, as opposed to referring it to Mr. Fraser. Accordingly, she sent an email to the grievor, and to Mr. Brewster, advising that she was setting up a Step 1 meeting for the afternoon of June 13. The grievor was still away from work because of his illness, and so did not receive the email, but Mr. Brewster did receive it, and met with the grievor to apprise him of the meeting. Mr. Brewster indicated to the grievor that he should contact Ms. Carroll with respect to the meeting, and gave it as his opinion that Ms. Carroll would be reluctant to adjourn the meeting. Ms. Carroll’s evidence, which I accept, is that she would have been prepared to adjourn the meeting if the grievor has asked her to; - 7 - l) The grievor did not contact Ms. Carroll with respect to the meeting, nor did he attend the meeting. He testified that his doctor had advised him against attending at the workplace, but did not provide any medical evidence to that effect; and m) on July 11, 2013, the union referred the harassment grievance to arbitration. The Employer’s Position The employer says that this is a clear cut case wherein the mandatory provisions of the grievance procedure were not followed. It says that the provisions of article 8.02 are clear on their face, and that the grievor has no grievance in either case because he did not give his supervisor the opportunity to adjust his complaints. Further, it says that Articles 8.03, Steps 1 and 2, contain mandatory language , i.e. that the word “must” is used throughout; and that Article 9.03 specifically prohibits the arbitration of a grievance which has not properly been carried through all steps of the grievance procedure. It also pointed to Article 9.07(b) of the collective agreement, which deems a grievance which is not properly carried through the grievance procedure to be settled and/or abandoned; and to Article 9.07(c) which denies an arbitrator any discretion to extend time limits. The employer relied upon Re International Union of United Automobile, Aerospace, & Agricultural Implement Workers of America et al Massey-Ferguson Ltd. (1979), 34 D.L.R. (3d) 743 (Ont. Div. Ct); Re Victoria Hospital Corporation and Ontario Nurses’ Association, July 27, 1979 (H. Brown) unreported; Re Regency Towers Hotel and Hotel and Club Employees’ Union, Local 299, (1973), 4 L.A.C. (2d) 440 (Schiff) (also cited as [1973] CLB 1415; Re Kennedy House Services and Ontario Public Service Employees Union, Local 585, June 20, 1996 (Hunter) unreported; and Re Kennedy House Services Inc. and Ontario Public Service Employees Union, January 19, 2007 (Goodfellow) unreported. The latter case is particularly persuasive since it was argued between these same two parties, and based upon exactly the same language. In the result, the arbitrator found that there was a mandatory obligation to process a grievance through - 8 - Step 2, and that the union’s failure to do, in the absence of waiver by the employer, was fatal, and deprived the arbitrator of jurisdiction. The Union’s Position The union argued that it was clear on the evidence that the grievor had expressed his dissatisfaction to his supervisor with respect to both grievances, and thus that the provisions of Article 8.02 were satisfied. It also submitted out that Articles 8.10 and 9.03 referred to “all stages of the grievance/arbitration procedure” or “all requisite steps of the grievance procedure”, and that Article 8.02 was not a step in the grievance procedure, but was a pre-grievance step, and was not therefore caught by either article. The union further submitted that there was no obligation to hold a meeting at step 1 of the procedure and that, when the parties had held two meetings regarding the suspension grievance (on May 21 and 24), that one of them should have been taken as a Step 2 meeting. Further, Ms. Carroll had met with the grievor to discuss an issue related to the suspension grievance on May 24. The union also submitted that the evidence was that the grievor was ill, although it agreed that he was not hospitalized, with respect to Ms. Carroll’s scheduled meeting on June 13. It argued that the grievor’s incapacity prevented him from attending the meeting, and that, even if Ms. Carroll attempted to characterize the meeting as a Step 1 proceeding, it was clear, by her own admission, that she was the executive director’s designate at step 2. The union relied upon Brown and Beatty, Canadian Labour Arbitration, at para. 4:2140 and following; Blouin Drywall Contractors Ltd. v. United Brotherhood of Carpenters and Joiners of America, Local 2486, [1975] O.J. No 31 (Ont. CA) (also cited as 8 O.R. (2d) 103, 57 D.L.R. (3d) 199, 75 CLLC 654, and 75 CLLC para. 14,295 at 654; Re OPSEU (Fung and Anand) v. The Crown in Right of Ontario, April 16, 1991 (Stewart) unreported; and Bell Canada v. Communications, Energy and Paperworkers Union of Canada (Hopkins grievance), [2003] C.L.A.D. No. 502 (McLaren). - 9 - Decision Turning first to the employer’s allegation that the grievor did not provide his immediate supervisor with an opportunity to adjust either complaint before filing a grievance, I do not agree. The language of Article 8.02 does not impose any form or specific requirement as to what steps the grievor must take in order to permit his supervisor the opportunity to adjust his complaint, and, given the precision with which Articles 8 and 9 are drafted in other respects, I see no reason to impose procedural requirements where the parties have failed to do so. I am satisfied that the grievor expressed his dissatisfaction to his supervisor with respect to both issues, and I see no reason to require more of him. I have no doubt that his comments to Mr. Fraser were reasonably cursory, but I am mindful of the comments of the Court of Appeal in Blouin Drywall (supra) to the effect that where possible, a collective agreement should be read liberally so that the real complaint is dealt with, and cases should not be won or lost upon a technicality of form when the language of the agreement does not require it. In this case, if the parties chose not to put in place standards or conditions by which Article 8.02 is intended to operate, it is not for an arbitrator to impose conditions that were not negotiated. In this regard, I am also mindful that Article 8.02 is intended to be carried out by the grievor, and that, although he may well have union assistance, the primary burden of complying with that Article falls upon the employee, who is often unfamiliar with legal processes. The situation is different with respect to the employer’s submission regarding the failure of the grievor to avail himself of step 2. The language of Articles 8 and 9 of the collective agreement is clearly mandatory and it is equally clear that the parties agreed that the arbitration of grievances was dependent upon the proper completion of Steps 1 and 2. In this case, the evidence clearly demonstrates that Step 2 was never completed, or even invoked, in either case. In the circumstances, and especially in light of Articles 9.03 and 9.07(b), I must conclude that I have no jurisdiction to adjudicate the subject matter of these grievances. - 10 - For all of the above reasons the grievances are dismissed. DATED at Toronto, this 3rd day of December, 2013. _____________________________________ John McNamee, Sole Arbitrator