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HomeMy WebLinkAboutGregson 04-06-30 , " , "- IN THE MATTER OF AN ARBITRATION BETWEEN YORK REGION CHILDREN'S AID SOCIETY (The "Employer") AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 304 (The "Union") GRIEVANCE OF L. GREGSON APPEARANCES FOR THE EMPLOYER Ms. Brenda Bowlby, Counsel Martin McNamara, Executive Director Julie Lee, Director of Corporate Services Bill Joynt, Supervisor of Intake Ashley Gaswicw, Supervisor of After Hours Bonita Majonis, Director of Protection Services Nancy French, Director of Protection Services APPEARANCES FOR THE UNION Boris Bohuslawsky, Counsel Lorraine Gregson, Grievor Michael Osadchuk, Union Steward Sherry Weese, OPSEU Staff Representative DATE OF AWARD June 30, 2004 . " 2 In July of2002 the grievor received a performance appraisal in which several concerns were raised about her work performance. On October 18, 2002 she was given a follow- up letter from the Employer as part of the performance appraisal process repeating those concerns. The grievor attempted to meet with her supervisor to discuss this letter but was unable to do so until November 22, 2002. On November 28, 2002, she filed the grievance before me alleging that the contents of the letter were factually incorrect and asking that the facts relied upon in the letter be corrected and the letter be removed from her file. The grievance was not received by the Employer until December 6, 2004. At the hearing the Employer raised several preliminary objections to my jurisdiction to hear the grievance. Firstly, it was submitted that the grievance was filed outside of the time limits prescribed in the collective agreement; secondly, that it was not properly processed through the grievance procedure, that is that it was not submitted to Step 2 as required under the collective agreement and, finally, that the grievance is inarbitrable because there has been no violation of the collective agreement. The relevant provisions of the collective agreement read as follows: Article 8 - Grievance Procedure 8.02 It is the mutual desire of the parties that all complaints and grievances be adjusted as quickly as possible. It is understood that any employee may present an oral complaint at any time to their immediate superior without resorting to the grievance procedure below. Except where otherwise provided, it is understood that an employee has no grievance unless and until the matter is first discussed with the employee's immediate supervisor. If, upon a completion of said discussion, the matter is not resolved, it may be grieved and disposed of in the following manner: Step No. 1: The employee may submit a written grievance to the supervisor. Such grievance must be submitted within ten working days of the occurrence of the event which gave rise to the grievance and must be signed by the employee claiming to be aggrieved. The employee may be accompanied by his/her committee member. The member of management to whom the grievance was submitted shall submit the answer in writing within ten (10) workings days of the filing of the grievance at step No.1. . . 3 Step No.2: Failing settlement of the grievance at Step 1, or failure of the appropriate member of management in Step 1 to submit the reply within the prescribed period, the employee shall present the grievance in writing to the Executive Director of the Employer or designate within ten (10) working days from the time the reply is received or should have been received in Step 1. The Executive Director shall have fifteen (15) working days from the date of receipt to call a meeting of the parties to attempt to resolve the grievance. Failing resolution of the grievance, the Executive Director will give his/her decision in writing within the said fifteen days. 9.10 It is understood that the time limit set out in article 8 and 9 may be extended by mutual agreement in writing between the parties hereto. Article 12 - Time limits 12.01 Notwithstanding section 48 (16) of the Labour Relations Act, SO 1995, as amended, for purposes of articles 8, 9, 10 and 11, and all grievances processed thereunder all time limits shall be deemed to be mandatory. If at any step in the grievance or arbitration procedure the grievance has not been processed by the grievor or his/her agent in accordance with the time limits prescribed, the grievance shall be deemed to have been settled and/or withdrawn. If at any step of the grievance procedure the grievance has not been processed by the Employer within the prescribed time limits, the grievance may be advanced to the next step by the grievor within the time limits as prescribed. Subject to these mandatory stipulations, time limits may be extended by mutual agreement by the parties in writing. By letter dated January 8, 2003, the Union wrote to the Executive Director, Mr. McNamara, advising him that the grievance was being processed at Step 2 and repeating the allegations and remedy sought in the original grievance. A subsequent letter dated January 31, 2003, sent by the Union to the Executive Director, set out their agreement to waive the time limits on the above grievance to accommodate a meeting on February 13, 2003. By letter to the grievor dated that same day Mr. McNamara stated as follows: The Society notes that the grievance at Step 1 was not filed in a timely manner, therefore it is not arbitrable. Further, the grievance was not processed by the Employee at Step 2 as required under the Step 2 Grievance Procedure therefore it is not arbitrable. Without prejudice to the preceding preliminary objection, we note that there is no basis under the Collective Agreement for your grievance. I am in agreement with the suggestion of Mr. William Joynt that it appears that you are disputing the assessment of your performance in two specific situations by your Manager. If 4 you would like to provide a statement of your disagreement, we will attach it to the letter. In the meantime I must advise you that your grievance is dismissed. In a letter dated February 19,2003 the Union wrote to Mr. McNamara stating as follows: I understand, although I have not received a copy of the response to date, that the Employer has denied the grievance. I am told that the Employer is also making a timeliness argument around this grIevance. I want it on the record that at no time during the grievance process did the Employer present this argument. The parties are to make the arguments from their respective positions on the grievance during the process in an attempt to resolve matters. Either party can certainly not act on information/arguments that are not discussed during the process. It is quite inappropriate to be making a timeliness argument when the process is proceeding to arbitration. By letter dated February 21,2003, Mr. McNamara wrote to Ms. Weese as follows: Further to your letter of February 19,2003 wherein you state that the Employer did not present a timeliness argument around the grievance during the grievance process, I want to point out to you that my Step 2 written response is part of the grievance procedure. Given that we were unable to resolve the case at the Step 2meeting, it was appropriate to raise the timeliness in my response and accordingly we will be arguing the objection at the arbitration. Ms. Bowlby, counsel for the Employer, took the position that the grievance was filed outside of the time limits allowed under the collective agreement. The event giving rise to the grievance was the letter dated October 18, the grievance was dated November 28 and received by the Employer on December 6, a thirty-five day interval. The collective agreement clearly states that the grievance must be filed within ten days. Article 8.02 sets out the parties' intention in this matter, which is to resolve grievances as quickly as possible. For that reason time limits must be adhered to strictly. Ms. Bowlby pointed out . 5 that this collective agreement is unusual in that it specifically precludes an arbitrator from applying the provisions in the Labour Relations Act to extend time limits under this collective agreement With respect to the Union's argument that the Employer waived the time limits, the Employer pointed out that it clearly put the Union on notice in its Step 2 response that it intended to rely on the strict time limits under the collective agreement. There is no evidence that it intended to waive its right to rely on those time limits during the process. The Employer also took the position that the grievance had not been properly processed through the grievance procedure. The grievor received a response to her grievance on December 13, 2002. That response clearly stated that the grievance had been denied. The onus is on the grievor and the Union to process the grievance to the next step of the grievance procedure. Even if there was a delay in the grievor receiving that response the collective agreement allowed for ten days between the stages of the grievance procedure and, if the grievor had not received a reply by December 20, it was her responsibility to forward it on to the next step of the grievance procedure. The Union response to that denial was not received within the ten days stipulated under the collective agreement. The Union's response was filed from nine to fourteen working days beyond the time limit stipulated in the collective agreement depending on the method of calculation. . Finally, the Employer took the position that, in any event, the grievance is inarbitrable. The grievor is alleging that a performance appraisal is factually incorrect. There is no provision under the collective agreement for the grievor to file a grievance on these grounds. The performance appraisal is non-disciplinary and merely provides an avenue for the employer to assist an employer to improve his/her performance. Since the performance appraisals are not disciplinary in nature, they are therefore not grievable. Mr. Bohuslawsky, counsel for the Union, took the position that the issue of whether a performance appraisal is disciplinary in nature is a matter for the Board to determine. 6 The question is whether the performance issues raised in the letter are being treated in a culpable manner. That is for an arbitrator to determine. It was submitted that even if the Board were to conclude that there were no disciplinary intentions in the letter of October 18, article 32 of the collective agreement does allow employees more rights than would normally be found in a collective agreement. It reads as follows: . Article 32 - Personnel Files 32.01(a) The Employer agrees to allow employees to review and take notes but not copy from their personnel file at least four (4) times per year and at termination, provided it is done in the presence of the Executive Director, the Director of Services, Director of Human Resources or a Supervisor. . (b) The employee will be notified and a copy given to him/her within three days of any document placed in his/her personnel file. Ay grievance concerning the placing of such documents in the file, or the contents of those documents must be filed according to section 8.02 (The occurrence of the event being the date that the document/copy was delivered to the employee). Failure to meet this deadline shall void the grievance. (c) The Employer agrees to allow employees to place in their personnel file any documents that they may feel will help their advancement in the organization. It is agreed that it is notimplied that the Employer necessarily concurs or accepts such information or materials so placed. (d) That any document of a negative disciplinary nature will only stay in the employee's personnel file for a period of twenty-four (24) months and at that time will be removed providing occurrences of the same nature have not taken place during that period of time. The use of the word "document" encompasses a performance appraisal which, according to article 32 (b) is grievable with respect to placement and content. Mr. Bohuslawsky asserted that the Employer had waived the time limits by its actions during this time period. It was stipulated that the grievor's evidence would show that she had attempted to meet with the Employer to discuss this October 18th letter several times before the meeting on November 22nd.. When they finally met that day it became clear that the matter could not be resolved without a grievance, which was then promptly filed. The Employer wrote to the grievor on December 13,2002 acknowledging receipt ofthe grievance dated November 28, but received on December 6. In that letter the Employer . 7 denied the grievance on the basis that there had been no violation of the collective agreement. No mention was made of an issue concerning the time limits. Regarding those time limits, it was submitted that to the extent the Union failed to comply with a time limit, the Employer waived any right to rely on that failure by taking a fresh step during the process. The grievance procedure requires a two step process. In this case, Step one consisted of correspondence between the parties resulting in the denial of the grievance on December 13,2002. The only comments in that denial related to the merits of the grievance, not the failure to follow the time limits. The Union advised the Employer that it was advancing the grievance to Step 2 and asked for a meeting. The parties were unable to meet within the time limits and expressly waived those limits to accommodate a meeting. At that meeting no mention was made of the failure to adhere to the time limits and the Employer participated in the discussion of the merits ofthe grievance without objection. It was only after that meeting that the Employer raised the issue of timeliness in its letter of February 13,2003. The time for the Employer to raise any objection to the grievance was when it was filed or at the first step, not after it agreed to participate in a second step meeting. In the alternative the Union took the position that the Board should exercise its discretion to extend the time limits under section 48 (16) of the Labour Relations Act. The nature of the grievance is significant for the grievor. Allegations have been made that are factually incorrect and she must have an avenue to address them. The length if the delay is not significant. It cannot be said there has been any prejudice to the Employer by the delay. In support of their positions, the parties relied on the following cases: Service Employees Union, Local 210 v. Canadian Red Cross Society (Union Dues Grievance) [2000] O.LA.A. No. 111 (February 15,2000) (Hunter); Re National Paper Goods and Graphic Communications International Union, Loca1100-M (2001), 102 LA.C. (4th) 32 (Abramsky); Re Algoma Contractors Ltd. and United Steelworkers, Local 4694 (1980) 25 LA.c. (2d) 292 (Hinnegan); Re Bombardier Regional Aircraft, 8 a division of deHavilland Inc. v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW Canada), Local 112 [2001] O.LA.A. No. 50 (Ellis); Re George Brown College v. Ontario Public Service Employees Union (Willett Grievance) (1999), 37 LA.c. (4th) 107 (Thorne); Re Greater Niagara General Hospital and Ontario Nurses Association (1981), 1 LA.c. (3d) 1 (Schiff); Re District of Parry Sound Welfare Administration Board v. Ontario Public Service Employees Union, Local 324 (Work Reduction Grievance) [1998] O.LA.A. No. 536 (Briggs); Re Corporation of the City of Oshawa and Canadian Union of Public Employees, Local 250 (1996) 56 LA.C. (4th) 335 (Brandt); Re Ontario Teachers' Pension Plan Board and Ontario Public Service Employees Union, Local 598 [August 25,2000], unreported (Saltman); Re Lake Cowichan and District Credit Union and Office and Technical Employees Union, Local 15 (1984), 15 LA.c. (3d) 248 (Bluman); Re E.L.K. Energy Inc. v. International Brotherhood of Electrical Workers, Local 636 (McLean Grievance) (2002), O.LA.A. No. 894 (Dissanayake); Re Riverview Manor v. Ontario Nurses Association (Calberry Grievance) [2001], O.LA.A. No. 399 (R. Young) and Re London Humane Society v. Canadian Autoworkers, Local 414 (Retail Wholesale Canada) (Shoulders Grievance) [2001], O.LA.A. No. 158 (Brandt). REASONS FOR DECISION This interim award deals with three preliminary issues raised by the Employer that challenge this Board's authority to proceed to a hearing on the merits. Dealing first with the issue of timeliness, the Employer relies on the provisions of the collective agreement that state that the time limits are mandatory and that any failure to 9 adhere to those time limits deems the grievances to have been settled or withdrawn. More significantly, it states that an arbitrator is expressly prohibited from applying . section 48(16) of the Labour Relations Act to give relief against the strict application of those time limits. I begin by recognizing the import of that prohibition. The intent of section 48 (16) of the Act was to allow arbitrators to use their discretion to allow a grievance to proceed, notwithstanding the failure of a party to follow the time limits set out in the collective agreement. It was placed in the Act in furtherance of the belief that arbitrators should address the real issue between the parties, with the goal of promoting harmonious labour relations. It is unusual to find a collective agreement with an express contracting out of that provision of the Act. The fact that the parties intentionally excluded the exercise of an arbitrator's discretion to extend the time limits under this collective agreement signals their agreement that the time limits are to be strictly adhered to and that the failure to do so is fatal to a grievance. I cannot ignore the clear intention of the parties. Unless the Union can show that the Employer waived its right to object to the grievance on the basis of timeliness, I have no discretion and must dismiss the grIevance. The issue then is whether the Employer waived its rights to rely on the strict application of the time limits. First, I do not read the letter waiving the time limits regarding the Step 2 meeting as a general waiver of all relevant time limits. It was an agreement to waive the time limits in scheduling the meeting in order to accommodate everyone's schedule. It does however indicate the parties' understanding of the process to be followed in seeking an adjournment. The question is whether the Employer waived the time limits in respect of the late filing ofthe grievance itself by participating in the Step 2 meeting without objection? It is without dispute that no mention was made about a failure to follow the time limits at Step 1 of the grievance procedure or at the Step 2 meeting to discuss the grievance. It was raised following the Step 2 meeting in the letter denying the grievance. The Union relied on a decision of Arbitrator Young in Re Riverview Manor and Ontario Nurses' Association [2001] O.LA.A. No. 399 in which the facts were very 10 similar to the facts of the instant case. In that case, at paragraphs 48 to 51, the arbitrator stated as follows: This, it will be seen that the Employer did not exercise any right to challenge the timeliness of the original filing of the grievance, either at the initial stage (Step 2) or at the referral to the second stage (Step 3). Indeed, it went so far as to mutually agree with the Union to an extension, of the time for holding the Step 3 meeting, which eventually took place on September 21. It was not until after the Step 3 meeting, when it communicated its final response (ex 10), that the Employer first raised the issue oflack of timeliness in the Union's original filing on June 30. And when it did so, the objection was made in addition to, and only after, first expressing its denial of the grievance on the merits. In view of the Employer's tardy raising of such an objection, the Union has made the argument at this hearing that the Employer, by such action, has "waived" its right to rely on the Union's original delay, whatever the actual length of that delay was. Arbitrator Marcotte in the Brant case (supra) makes an extensive review of the doctrine of "waiver", I do not propose to repeat that exercise here. Suffice it to say, I find there is extensive authority to conclude that, where a party has itself neglected to raise in a timely fashion the grounds for an objection to the other's lack of timeliness, and takes subsequent steps in furtherance of the grievance process without relying on or objecting to the other's misstep, it loses the opportunity to do so at a later date. Arbitrator Marcotte cites Arbitrator Haefling in Re Rennie Inc. and Amalgamated Clothing and Textile Workers Union, Local 740 (1993), 39 LAC. (4th) 76, at pp. 82-3: The cases cited indicate that a deemed waiver could occur where a party takes steps under the grievance procedure, such as replying to the grievance, without raising an objection about the time limits... Arbitrator Marcotte also cites Arbitrator Schiff in Re Regency Towers Hotel Ltd. And Hotel and Club Employees' Union, Local 299 (1073), 4 L Ac. (2d) 440 at pp. 443-4: Arbitrators have also long rejected such objections where, although the objecting party in no way induced the breach of the procedural requirements, without mention ofthe clear defect it engaged with the other party in further processing the grievance on the merits before or at the stage of arbitration.. . Rejection here rests on reasoning that, by treating the grievance on its merits in the presence of a clear procedural defect, the party "waives" the defect. . . I find merit in the argument raised by the Union that the Employer ought to be deemed to have waived its right to raise the timeliness issue by virtue of its oversight in not doing so when the grievance was first lodged, and by continuing to deal with the merits and substance of the basic issue in its two replies which followed. I would therefore overrule the Employer's preliminary objection. - 15 Dated this 30th day of June, 2004. cI N1lA ~ Loretta Mikus