HomeMy WebLinkAboutKirby 04-12-20
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FROM: LE I GHTON_ARB I TRATl bNS FAX NO. :1-613-389-9835 Dec. 20 200402:38PM P2
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IN THE MATTER OF AN MŒITRATION
BETWEEN:
HOTUL DIEU HOSPITAL (CORNWALL) EMPLOYF.R
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-And-
THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION (LOCAL 469)
(Gary Kirby)
UNION
BEFORE: D. Leighton
FOR roo UNION: Susan BallantyD.e, Union CoUI15el.
FOR THE EMPLOYER: LesFo~anøErnpJoyerRepresentative
!-IEARIN G: September 20, 2004
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FROM :LEIGHTON_ARBITRATIONS FAX NO. :1-613-389-9835 Dec. 202004 02:38PM P3
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Mr, Gary lGrby grieves the termination ofhi!\ employment with the hospital on August 18,2003.
At the outsct of the hearing the eroployerbrought amotion to dismiss the grievance as untimely.
It is the employer's position that the grievance was both late in i t,c; original filing, and in itli
referral 'to arbitration.. The 00101'1. took the position that under S~ction 48(16) of the Ontario
Labour RfJlations Act the Board has the cliscretion to extend time limits. The parries agreed to
proceed with the lnotion by way or agreed facts, provided to the Board orally, and documentary
evidence.
Mr. Kirby began work as ajanitor in the hospital in 1984. The employer concedcd that he WWii a
good employee in bis early years, but in the late 1990s, and early 2000) theTe were pçrformance
and discipline issues prior to him. going off on sick leave. The griever went on sick leave in July
2001. Mr. Kirby contacted the employer in the spring of2003 to say he was ready to return to
work. On July 30, 2003, the employer was given a note from a doctor on a prescription pad
saying that Mr I Kirby was fit to return to work. But the grievor indicated to Ms. Cheryl Ramsey,
Hmnan Resources Manager, that he was not fit to rctum to his pre-injury position. The grievor
took the view that he could return to ajanitorial position, but not at the sarno site of where he
was on gina11y injured.
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On August 18,2003, the employer terminated Mr. Kirby's ern.ployrnenL. That letter provides in
part:
As 1 understand the situatiol1.~ you are not able to return to work at the Hotel. Dieu
Hospital site. Although your doctor's note, dated 30 July 2003, says thaL )'OI.t are
fit to return to work, you have confinned that YOLI are Dot able to return tØ your
pre-injury posWon. In fact, you are not able to return to any position at the Hotel
Dieu Hospital.
Y (lU have been off work continuously siD.ce August 12, 2001. This level of
absenteeism is excessive and one that we are no longø'r willing to tolerate.
In light ofyo1.U" statement that YOL1 aTe not going to be able to Tetum to work here
in the foreseeable future 011. a regular and consistent basis, I h~\ve come to the
conclusiQn that t110 employment relationship is effectively at an end. There'tòre,
under the doctrine of the frustration of contract, your employment with Hotel
Diel1 Hospital is terminated August I8! 2003.
P1tg:e 2. of II
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FAX NO. ;1-613-389-9835 Dec. 202004 02:38PM pa
F'~OM ; LE I GHTON-ARB 1 TRAT IONS
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Mr. Kit'by's grievance was filed on September 16,2003. The employer denied 11,e grievance at
Step 2 on October 1, 2003, The grievance was refeITed to arbitrnti0l1 on Janual'Y 22, 2004.
Tho ho~pil.a1 was WIder a directive ftom the Health RestrUcturing Committee to amalgamate with
the Comwall Community Hospital effective January 1,2004. As part of that axnnlgamatiou, the
Hotel Dieu Hospital tTansferred all employees in their housekeeping and dietary units to the
Cornwall Genera) Hospital.
The Employer's Submission
Mr. Foreman argued on belwIf ofthc employer that Article 7.05 of the col1ect;veagreement
between tho parli~s requires that the employee lodge a discharge grievance within seven (7)
calendar days after the date of the termination. In this case, the g.devorwÐ..-; 1eœ:unated on
August 18, 2003, and did not file a grievance until September 16, 2003. Mr. Foreman argued
that this was çlearly beyond the time'limits, whigh EIre mandatory under the collective agreement.
The hospital denied the grievance at Step 2 on OCtOber I, 2003. 111e c4.11lecLive agreement
xequires that a written Teque.'It for arbjtration must be received withjn liIðVen (7) calendar days of.
the decision at Step 2. If it is not received within this time Bmit the grievance is deemed to have
been abandoned. In this case the employer did not receive the referral to aTbitration until January
22,2004.. :Mr. Foreman noted again that aU time limjt~ within Article 7 are mandatory.
Mr. Foreman argut'Jd lhat the decisIon in Leísureworld Nur~'itJg HomfJ.~ Limited and S.E.l u.,
Lor1o[ 204 (1996) 43 C.L.A.S. 67. upheld by the Divisional Court [1997] O.J. No. 1469 (QL) and
the CoUrt of Appeal [1997] O.J. No. 4815 (QL), made it clear that there is no discretion to extend
the time limits for referraJ t() arbitration. I-Ie noted that the language in the collective agreement
in Lcisureworld is 5\lbStantiaJly the same kind of language as before me in this caso.
Anticípating the l.U1ion's submissiol1~ Mr. Foreman argued that the key to understandil1Q
Arbitrator Sl1itne'g decision in Ajax Prer:i;rion Manufacturing (Triton Division) and U.S. WA..
Page 3 or 1 I
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FAX NO. :1-613-389-9835 Dec. 202004 02:39PM P5
FROM :LEIGHTON_~RBITR~TIONS
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. Local 9042 (1999),85 L.A.C. (4"') 280 (Shime) is the Janguagc in the collective agreement
before him. Th~ coUectivc agreement provided in part.:
Whenever the term "grievance procedure" is w ed in this agreement it shall be
considered as including the arbitration procedure.
He argued that Arbitrator Shirne distinguished Lei5urewor/dby finding that the parties h~d
specifically deemed th~ arbitration proçCss to be pm of the grievance pt'ocedure,
Mr. Foreman argued in the alternative that if! decide that 1 do have jurisdiction WJder Section
48(16) of the Ontario Labour Relation..i Act. the union has provided no evidence to explain the
delay in initially filing the grievance or for referring the grievance to arbitration. He argued
further that case law is clear that before the discretion is exercised there must be a reasonable
explanation for the delay. He argued further that the employer had boon prejudiced by the delay
because a sUCCeSS(')f employer has taken over the housekeeping work. Although the griever had
been terminated in AugusL, the gr.ievance was tiled jn September; no action was taken L() refer the
grievance to arbitr:ation until after the SUCOe3sor employer had taken over in .Tan1.mry of2004.
The ernployer, therefore, could rightly consider the grievance to have been abandoned.
Thc:refore, Mr. Foreman argued) the motion shou1d be granted and the grievance dismissed.
The Union ~s Submission
Counsel for the union, Ms. Ballantyne, argued that tinder Section 48(16) of the Ontario Labour
Relation,. Act' arbitrEl.tora have the power to extend tinie limits when there has been a delay in
filing. Thus, she argued, there is no dispute that the Board can exercise its jurisdiction to extc::nd
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"~ the time limit for the initial tiling of the grievance. With regard to the lateness or the referral to
arbitration, COUllsell :n-gued that it is clear that arbitrators do not likc the fact that under
Leisureworld they have no discretion to extend the 1:í1ne limit. While the law has been well
settled, Ms. Bal1antyne tlt'gl.ted that, given the recent decision 1nJ'lIn~$ Bay General Hospital and
Public Servtc:e Alliance of Canada (Loone) 126 L.A.C. (4th) 1 (DcvIin)~ upheJd by the Divisional
Court (Court ','¡Ie No. DV-598/03) this board does havo the! discretion to extend the time limit lor
referraJ to arbitta.Lion. In James lJay General Hospital the tUne limit for refeITal to arbitration
was found;n the grievance proc.Ðdure and, therefore, the arbitra.tor found that she had the
Page 4. of 1 1
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FAX NO. :1-613-389-9835 Dec. 202004 02:39PM P6
FROM :LEIGHTON_ARBITRATIONS
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jurisdiction to extend the time limit f()r referral to arbitration. TIùs case was judicia11y T.evie~d
and the Divisional Court approved it~ distinguishing Leisuroworld. Counsel for the union argued
that given what is at stako in the grievance before me, which is the defeat of ß ri ght to arbitration,
language in the colleotive agreement must be very clear.
Ms. Ballantyne argue~ further that there was no evidence of prejudice to the employer by the
delay, but any issue of prejudice could be dealt with by remedy. In exercising the discretion to
Bxtend time limits arbitrators traditional1y oonsiderthe nature of the case and ale length of the
delay. Counsel argued that the nature of the case here, 11 tennination case dealing with hu~11:l
rights. was a seriour;¡ case and that the delay here was not great. Counsel tòr the union also rclied
ollB,.idgepoint Health and C. UP.E'I Local 7.9 (Williams) 119 LA,C. (4th) 33 (Armstrong); and
C{fflada Post Corpo1'ation arid the Canadian Union of Postal Workers (Houle) (unreported)
(BurkeL!).
Duision
The union acknowledged that the grievance was not referred to arbitration withiJ.). the time limits
of t1u~ collective agreement. 11\1.\& the first issue that needs to be addressed is whether I have the
discretion to extend the Û1ne limits for the reíèttal to orbítratio.n iJ:\ this matter. The col1ectiv~
agreement in this case pX'(,wides as follows:
ARTICLE 7 - GRlEV ANCE PROCEDURE
7.01 for the purposes oftlús Agreement, a f,.trievanco is defl1loo a..;¡ a
difference arhdng between a. member of the bargaining unit and the
Hospital relaûng to the interpretation, application, administration or
alleged violation of the Agreement.
7.02 It is the mutual desire of the Parties hereto that complaints shaIl be
adjusted as q\liekly as possible, and it js understood that an emp][)~e has
no grievance until they have first giVI!ID their immediate supervisor the
opportUnity ofadjusting his complaint. Such comp1mnt shall be
c.lisc\\ssed with his supeIVisor within SCvon (7) "111endar da.y~ th).tn tb.e
event giving rise to the grievance, or from when the employee first
Pa,g~ S M 11
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FAX NO. :1-613-::389-9835 Dec. 202004 02:39PM P7
FROM: LEIGHTON-ARBITRATIONS . ,
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beQame aware of the event giving rise to the grievance and, failing
settlement witbjn seven (7) calendar days, it shaH then be takr¡)11 up as a
grievance within the seven (7) calendar $lys following their immediate
supervisor's dccisio,o in the following IDaDner and seq'l1,encc:
Step No.1
The employee must submit the grievance in writing signed by him to his
immediate supervisor and shaJl be accompanied, if he so deSires, by his
union Steward. The grievance must identify the nature of the grievance,
the remedy 50u,ght~ a11d the specific provisions of the Agreement which
is/are alleged to have been violated. The inunediate supervisor shall
deliver their decision in writing within seven. (7) calendar days following
the day on which the grievance was presented to him. FaiHng settlement,
then:
Step No.2
Within. S~ven (7) calendar days following the decision in the immediately
preceding step, the grievance shall be submitted .in. writmg to the
Executive Director or designate. A meeting will thel'1 be held between
the Executive Director or designate and the Grievance CoTXunittec within
seven (7) calendar daiB of the SLlbmÍBsion of the grievance at Step No.2
unless ex-rendcd by mutual agreement. It is understood that eit11er party
shall have such assistance! as they may desire at such meeting. The
decision of the Ho::;pi1a1 shaH be delivered in writing witlù11 fourteen (J4)
calendar days following the date of such meeting.
7.03 Polìcy Grievance
A grievance arising directly between the Hospital and the Utrion
concerning the intetp~'eta:li.on, appl1cation or alleged violation ofilia
Agreement shaH 00 originated at Step No.2 within sevel'l (7)calcndat,
days following the c:Îrc1lI11stances giving rise to the gricvance.
It is expressly understood) however, that the provisions of U1i:i ATticle
may not be used with respect to a grievance directly affecting an
employee which they could have instituted themselves and the regular
grievau,cc procedure shall not be thereby bYPElSsed. Where fue grievancc
is a Hospital grievance it shall be filcd w;ith the Local Union President or
desjgoate.
7.04 Group Grievance
Where a 1l11mber of emplayees have identical grievanct:s and each one
would be entitled to grieve separately, they may present a group
J~age 6 of I
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FAX NO. :1-613-389-9835 Dec. 202004 02:40PM F'8
FROM :~EIGHTON-ARBITRATION5
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grievance in wri'dng, signed by each employee who is grieving, to the
Department Head or their designate within seven (7) m:1lendar days after
the circumstances giving rise to the grievance have occurred. The.
grievance shall then be treated. as being initiuted at Step No.2 and the
applicable provisions of this Article shall then apply with respect to the
handling of !Such grievance,
7.05 Discharge Grievance
The release of a probationary employee shan not be subject of a
grievance or arbitration. A claim by an employee who has completed
their pT.obatÍonary period that they have been unjustly discharged shall be
treated as a grievance if a. written statement of such grievance is lodged
by the employee with the Hospital at Step No.2 within seven (7)
calendar days after tho date the discharge is effected. Such special
grievance may be settled UDder the Grievance or Arbil:tation procedure.
by:
a) conflrt1'ùng the Hospital's action in dismissing the employee. or
b) reinstating the employee with or without loss of" selliority and
with. or without full compensation for the time lost, or
c) by any other arrangement which may be deemed Just and
equitable.
The hospital Q,grQCS that it will not discharge, without just Ci:tuse, El,U
employee who has çomplctcd their probationary period.
7.06 Failing settlement under the foregoing procedure~ any grievtlT\cc,
including a question a5 to whether tJ,e gr.ievance is arbitrable, may be
submitted to arbitration as hereinaller provided. If no written request for
. arbitration is received within seven (7) calendar days after the decision
under Step No.2 is given, the grievance shan be deemed to have been
åhondol)ed.
7.07 All agreements reached under the grievance procedure between the
representatives of ilie Hospital and the raprs!o1entatives oftbc Union will
be fh1d and binding upon the Hospital, the Union~ and the ernployec:(s).
The time limits set out in this Article are mandatory and failure to
comply 91Jic'tly with such time limits. except by the written agreement of
the parties, shall result in the grievan.ce being doomed to have been
abandoned.
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FROM: LE I GHTON-ARB I TRAT IONS FAX NO. :1-S13-389-9835 Dec. 20 2ØØ4 02:40PM pg
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The relevant statutory provision is found at Section 48(16) of the OnICU'io Labour Relation!; Acf~
which provides:
Except where a collective ag1'eement states that this subsecti<m does not apply. an
arbitrator 01' arbiúation board may extend the time for the taking of any steps in
the grievance procedure under a col1ective a,greement despite the expiration of the
time, where the arbitrator or arbitration board is satisfied that there me reasonable
grounds for the extension and that the opposite party will not be ~bstB.D.tial1y
prejudicod by the extension,
The leading case on this issue is Lei.rnreworld. In approving the arbitration decision the
Divisional Court. after reviewing the history of Section 48(16) of the Act' he]d:
'lbe jurisdiction to grant reUeffrom time limitatiOU$ with respect to griCVat1CÐS
cannot and should not be interpreted to also grant relief from the time limits for
referral to arbittarlon.. Section 48(J 6) is clear and unambiguous. To conclude
otherwise would mcm that the deletion of the words "or arbitration" from tb.¡;,
1995 legislation had no effect whatsoever. The words in the statute rn1.1st be.given
their clelilr meaning. The board had no juriswction to extend the time limit for
referral to a1:bitration.
The Ontario Court of Appeal agreed witl1 the DivisÍonal Court and in an endorsement held:
It is clear from the context afforded by several provisions in the Labour Relations
Act that the legislation has intentionally drawn the distinction be1.woon "grievance
procedure" and "arbitration procedure" and) accordlngl)'~ ín our view did not
intend to include steps in arbitration procedure in ScctiO11 48(J 6).
Leisurewor/d has been followed in many arbitration casos~ for examp]e, RuinycTe,~, Homejor the
Aged and C. v.P.E:. TJocal 65 (1996) 57 L.A.C. (4tb) 75 (Bcndel)¡ W'I/~rlC1o (Family and
Children.(j Serviol1laj and O.P.S.1!.'.U. (peever) (1~97) 66 L.A.C. (4th) 294 (Kaplan); Täl'tml(J
Board of Education and Cu.P.E.. Local 3111 (Cranswiçk) (1997) 67 L.A.C'. (4'/~ 144 (Joachim);
. Dominion Casting.,. Limited and u.S. WA., l.<Jca19392 (Weaver) (1997) 67 L.A.C. (4t1, 4]6
(Roberts); Hotel- Dieu Grace Hospital and C.A. WO. Local 2458 (Miller) (2002) 106 L.A.C. (4th)
(Knopf).
Page 8 of 11
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FROM :LEIGHTON':"RRBITRRTIONS FAX NO. .1-613-389-9 e:c.
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A decision by Arbi,1rator Shime in Ajax Precision Manufacturing would appear to have taken a
different approach to deciding whether B1'bitrators have the jurisdiction to extend time limits
when a refetrnl to arbitration is late. Arbitrator Shime began by expressing the view that each
case must be decided on its particular facts and depends upon the language ofthc collective
agreement. In 4!ax Pteciaton Manufaclurll1g, Arbitrator Shime found that the partiel:! had
specifically included languagë that deemed the axbiLTation procedure as pact ofthQgrievance
process. Hç also noted that Step 3 of the grievance procedure inçluded tho provision for referral
to arbitration. Thu."I Arbitrator Shime found that tho referral to arbitration was "inextricably
woven with the grievance procedure.'1 Since the referral to arbitration in the collective
agreement before him W'clS part of the grievance procedure, he was entitled to grant an extension
of time uoder Section 48(16) of the Act, if it was reasonable to do so.
Arbitrator Devlin relied on Ajax PrsciJ'irm Manufactu!'ing in .JamB,r Bay General ]foGpital and
dBC1ded that. given the collective agreement before her, she also had the jurisdiction, under
Section 48(16), to extend the Ûll1e limit Cor referr.a1 to arbitration. She noted that in tho collective
agreement before her, the 1ang~Jage allowing referral or requiring referral to arbitrati,?D was
~pecifica11y included in Step 3 of the grievance procedure as was the ca,l)e in Ajax Þ,.ecl,t'ion
M411ufacturing. She acknowledged that there was no provision in the collective agreßI'I.,ent like
the one before Arbitrator Shime deeming the arbitrntionprocess as part of the grievance
procedure, but it was enough that Slep 3 ofthc: grievance procedure inç!udcd the provision fl~r
referral for arbi1-ration. Thus she decided that she did have the jurisdiction to extend the time for
referral to arbi1xaûoll. The Divisional Court upheld the decision in J'fmt¡s Bay Gßnerall1mpi/al.
In the Court's reasons it provided:
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lfthe referral to arbit"ration is by the terms of the collective agreement specifically
inc1uded as a Ustep" in. and part ofilia grievance procedure, then tllere is
jurisdiction for-the arbitrBtor to e~teJ1d time pursuant to Section 48(16) of the
T.~abour Relations Act. If, however, by the teI1IlS of the collective agreement, the
grievance procedure is distinct ftom the referral to arbitration then no such.
jurisdictio11. exist.~.
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The court conCUITcd with Arbitrator Devlin.s reasoning and found. further:
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FAX NO. :1-513-389-9835 Dec. 282004 82:41PM PH .
FROM: LE I GHTON-ARB I TRFlT IONS
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In this case, the de.tined grievance procedures and referral to arbitrati(m, by th~
tetms ofthe collective agreement, are inext-ricably intertwined. It may wen be
that parties structU.red their collective agreement as they did to avoid the strict
npplicntion of the Let,ywewQrld ruling. We 110te that the governing coUec,,1ive
agreement in this case came into effect in Maroh 2000, after the Leisureworld
decision. A1rhough there is ß. qualitative diiference between grievance and
arbitration, in this case~ the parties, by the ten31S of the collective agreÐment.
agreed to a grievance procedure which specifically included the referrul to
arbitration in Step 3. Leisureworld is distinguishable, and the reasoning ot'
Arbitrator Sbìme in Ajœ: Pl'ectston MamifClcruring is helpful.
While the Divisional Court's decision in James Bay General Hospital seems tl:> al1ggest that if
language providing the timeline for referIa! to arbitration is found under the grievanç¡; procedure
article then arbitrators do have the jwisdj,ction under Section 48(16) of the Act to cxtond the time
limits. it is hard to reconcile this witb Lsisureworld. The Divildonal CoW't in Lei.\'ureworld held:
Although the referral to arbitmtìon.is found in the grievance procedure in this
colJectivc agreement, its placcmcnt in that article following what the parties have
titled the steps of the g¡ievance procedure rohûorces the plain meaning of the
words that the rcfclTal to arbitration is not part of the grievance procedure but
¡ather is the initial step in the arbitration procedure. .
Although the court 'jn Jame... Bay General distinguished Leisureworld. ,\t would :>eem that the
only real difference i11 the collective agreements of Leisurewo'f'ld and Jame.~' Bay General
Hospital is that in .JUlTle8 Bay General Hospital the referral to arbitration wa..q found specifically
as part ofSrep 3 of the grievance procedure~ whereas in Leisu1'ewol'ld and in the case before ma,
it ;,s not found 111 Step. 3. In LelsW'eworld and the collective agreement before me the grievance
procedlU'e sets out Step 1 and Step 2, and then in a separate provision bUt still under the
gdevance proQedW'c article; states the timeline.s for the refe1Tal to arbitration. The result of these
two divergent lines of cases means that if the subhaading Step 3 is included befm:e thfJ B1"ticle for
referral to arbí1;ration, thc11 arbitrators have the jurisdiction to extel1d tbe tUne limit, if
appropriate. But without it~ we remain bound by the higher precedent that has denied our
discretíon.
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FROM :~éIGHTON-ARBITRATIONS FAX NO. :1-613-389-9835 Dec. 20 2004 ~2:41PM P12
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It is clear as counsel foJ.. the union noted that many arbitrators have been unhappy with the effect
of I.ei.'iurewor/d and the eonsequcntialloSR of discretion 1.0 extend the Ûll1C limit in a reasonable
and appropriate casc. In Waterloo, Arbitraror Kaplan held as follows~
Arbitrators, whether they like it or nol, have been confronted with 1iùs situation in
the past an~ the authorities indicate that where the law has been declared by
higher court that declaration of law must not be ignored; rather, it must be given'
effect, even in circumstances where a lower court decision was under appeal.
Having carefully considered the submiflsions of the parties~ I have decided that the language in
the collcctive agreement befoT'e me is substantially the same n:~ the language before the cowts in
Leisureworld. Thus I am bound by it. . The cmployer;s objection must be upheld~ al1d the
grievance dismissed. Given the decision that the grievance W1.1s1 be dismissed AIÇ being late foT'
referral to arbitration~ Chere is no need to consider thc submission that it wal;; also fate in the
initial filing, or the alternate argument that there was no reason provided for the delay.
For thc reasons noted above, the grievance is hereby dismissed.
Dated at Kingstl'm this 20th day of December, 2004.
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D.. . Leì~, - .},trator .. ~-
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