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HomeMy WebLinkAbout1978-0045.Keeling.78-04-27æÓ×ÅòÇØÓÙÓÛÐê×ÆÓ×Å By this grievance, the grievor, Mr. Sam Keeling, grieves his discharge and seeks reinstatement without loss of pay or seniority. The grievor, at the time of his dismissal, was employed as a Garage Attendant with the Ministry of Transportation and Com- munications at the District 6 Garage and his duties included washing ~ars and trucks, sand blasting, sweeping and ~leaning. At the date of his dismissal he had worked for ~pproximately 4 years with the Ministry. The grievor was dismissed for hitting~and injuring his Supervisor, Mr. Hetherington, while at work on ~ovember 15, lg77. At the hearing, the Ministry ·raised the preliminary objection to the grievance that it was' unti~ly and thus that the Board should dismiss' the grievance regardless of the merits. HoweVer, the parties mm agreed that the Board should hear evidence of the meriis in the event ,. that the preliminary objection was dismissed. In this award we"deal first wtthl~he preliminary objection and then the merits of the " grievance. ~' Simply put, the Ministry's preliminary objection-is that the Article 27 of the Collective Agreement sets'out mandatory time limits governing each stage in the grievance procedure, that this grievance failed to comply with those time limits, that Article 27.9 therefore deems this grievance to be withdrawn and that the Board therefore has no jurisdiction to hear this grievance. In order to rule on this argument it is necessary to consider' Article ~7 in its entirety, It reads: ARTICLE 27 - GRI£VA. NCE PROCEDURE 27.1 It iS the intent of this Agreement to .-. or differences between the parties arising from the inter- pretation, application, administration or alleged contra- ven~on of this Agreement, including an~9 question as to whether a matter is arbitrable. · 27.2.1 An emplogee-whO"-believes he has a complain= ? or a difference shall first discuss the -.. complaint or difference with his supervisor within twenty (20) days of first becoming aware of the complaint or difference. ~ 27.2.2 If any complaint or difference is not satis- factorily settled by the supervisor within seven (7) dabs of the discussion, it may be processed with- in an additional ten (10) days in the f~l.°Wing manner: 27.3.1 STAGE ONE Zhe employee may file a-grievance in writing with his supervisor. The supervisor shall give the grievor ,'.i~ .. his decision in writing within seven (7) daws of the submission ..,~ ~ " of ~he grievance. 27.3.2 STAGE TWO If the grievanme is not resolved under Stage One, ~.i ~ ' the emplowee ma9 submit the grievance to the Depu=~ Minister or his designee within seven (7) daws of the date that he re- ceived the derision unde~ Stage One. In the event that no. decision in writing is received in accordance with the specified t~me 'limits in Stage One, the grievor may submit the grievance to the Ds~utw Hinister or h~s designee, within seven ~7) ~aws cf the date t, bat the supervisor was required to give his decision in writing in accordance with Stage One. 27.3.3 The DePutV Minister or his designee shall hold a meeting with the employee within fifteen (15) daFs of the receipt of the grievance and shall give the grievor his decision in writing within seven (7) daws of the m~e~ing. 27.4 If the grievor is not satisfied with the decision of · the DeputV Minister or his designee or if he does not receive the decision within the specified time the grievor. maw applw to the Grievance Settlement Board for a hearing of the grievance within fifteen (15) dags of the date he received the decision or within fifteen (15) days of the specified time limit for receiving th'e"decision. 27.5 The emplmgee, at his op.t, ion, may be accom- panied and represented by an employee represen- tative at each stage cf the grievance procedure. 27.6. I DISMISSAL An~ probationary employee .who' is dismissed or released shall not be entitled to file a grievance. 27.6.2 ' Any employee other than a probation~r9 em- ployee who is dismissed shall be entitled to file a grievance a~ the second stage of the grievance pro- cedure provided he does so within twenty (20) da~s of :he d~=e of the dismissal. 27.7.i An employee who is a g=ievor or complainant and who makes application for a hearing before the Grievance Settlement Board or. the Public Service ~abour Rela- t~ons Tribunal shall be allowed leave-of-absence with no loss of pay an~, with no loss of credits, if required to be in attendance by the'Board or Tribunal. 27.7.2 An employee who has a grievance and is required to attend meetings arranged at Stage 1 and 2 of the Grievance Procedure sb~tl be given ,,time off with no loss of l~a~ and with no loss of credits to attend such meetings. 27.7.3 This section shall also apply to the Union Stew- a~d who is a,~thorized to reBr. esent :he grievor. 27,7.4 The Union shall advise the Directors of Personnel. Of the affected Ministries with co~ies :o :he Executive Director, Staff'Relations Division, of the Union Stewards together with the areas they are author£zed ~to repre- sent, which list shall be update~ at lea~t ever~ six mmn:hs. 27 ~8.1 UNION GR17~V~CE Where any difference be:ween the Employer and th~ Union arises from the interpretation, appii=ation, adm/n/s- tration or alleged ~ntravention of the Agreerant,. the Union shall be enti~ie~ to, file a grievance at the second stage of the 9Tievance sro~edume provided it does s° within thirt9 ($0) ·da~s follOWing the occurren=e or origination of the circumstances ~iving r/se to the grievance. 27.8.2 Where the differenc~ betwee~ the Employer and the Union involves more than one {1) Minist-~ the Union shall be entitled to file a grievance with the Execu- tive D/rector of Staff Relations provided i.t does so within sixt~ (60) daws following the occurrence or origination of the circumstances giving rise to the grievance. 27.8.3 A submission of the grievance to the EXeCUtive D/rector of Staff Relations under this section shall be considered to be the second stage of the grievance procedure for the purpose of this Article. Union grievances shall be ·signed b~ the Pmesident or Vice-President. 27.9 Where a ·grievance is not processed within the. time allowed or has not been processed by the employee or the Union within the time p=escribed it shall be · ', deemed to have been withdrawn. 27.10 In this Article, .davs s~all include all dag. s exclu- sive of Saturdags, Sunda~s and designated holidays. 27.11 The time limits con:ained in this Article may be extended by agreemen: of the parties in writing. .... 27,12 The Grievance Settlement Board shall have no · ~: jurisdiction to alter, change, amend or enlarge any provision of the ¢ollective Agreement. The relevant factual background as to the timing of this grievance ~ was not in dispute. The parties agreed that the grievor was formally infold of his dismissal by letter of November 28, 1977 (~x.hibit ....... that pUrSuant to Article 127.6.2 he grieved this dismissal on December 8, lg77 {grievance form filed with thJ Board on Ma~ch 6, lg78). This grievance was'received and considered by Mr. F. G. Allen, the Regional : I)irector,~ on December ~8, 1977 and was acknowledged on December 2g, lg77. On January 3, lg78 Mr. Allan set January 12, lg.78 as the date for the Stage Two Meeting required b~ Article ~7.3.3. This nmeting was deferred to ~anuary 16, lg7B at the request of the Union. Following the grievance meeting on 4anuar~ i6, II070, Mr. Allen ~ote to the grievor by letter of January 23, 1978 {Exhibit 4} dismissing the grievance. Pursuant to Article 27.4, the grievor was then entitled to apply to the Griev&nce Settlement Board for a hearing but he was required by t~e language of the Article to do so within l~ days of his receipt of the Stage Two decisionI. The next step in this matter was taken by Mr. Janms ?alt, a Staff Representative of the Union. By letber dated February 22, 1978 {Exhibit 5}~ he ~rote to the Ministry the following: Mr. I. J. ¢ow~n DY rec tot · of Ministry of Transportation and Communi ca tions Ist Floor, West Tower 1201 Wilson Avenue Downsview, ,ontario MiM iJ$ Subject: Dismissal of'Mr. S. Keeling Dear Mr. Cowan: The above-named was employed by M.T.C. as a Garage Attend- ant in District 6 Garage. At a SteB II hearing his dismissal was upheld. We realize tha~ further action b~ Mr. Keeling as regards his dismissal is inhibited by virtue of the time limits governing such actions having been exceeded. We feel; however, that because of the very nature of the penalty and its resulting effects on the future of Mr. Keeling, that might consider.waiving the time limits in this case in order '' . . to afford us. the op$ortuait~ to further Mr. Keeling'$ case.~ Yours trulw,. Signature James J. Tait Staff Representa ti ve 'm = As can be seen, the letter. (l) acknowledged that it was by then too late for Mr. Keeling to grieve given the requirements Of Article 27.4, and (2) sought the Ministry's agreement to waive the time limits pursuant to rm Article 27.11...By letter of March l, 197B, (Exhibit 6), Mr. Pettifor replied on behalf of the blin.~stry as follows: Personnel ~ra~ch~ 1st Floor, Wes~ .Tower, 1201 Wilson Avenue Downsview, Ontario ~.iH iJ8 ~arch i, 1978 Mr. J .J . Tai t , Staff Representative, Ontario PubZic Service £mployee$ UnZon, ' 1901 Yonge S~reet Toronto, Ontario ?.4S 2Z5 Dear Mr. Taft: R~ Mr. S. 1978, in which you refer to the' fact ~hat the time limit within which a grievance may be filed with The Crown BmBloyees Grievance Settlement Board has expired in this case. Wh~le both the Union and th~s Bin~s~r~ have, in the past, agreed by mutual consent =o the extension of time limits, these cases have not involved dismissal, and sound reasons existed for the requested deferrals. We agree with you that the action taken bg the ... Ministry 'certainly has an effect on Mr. Keeltng's futume, but, for this verv reason, we would exit that, if further gmievance action were contemp!at~d, it would be taken earl~ in the period established by the Collective Agreemen: in respect of Working Conditions for th/s purpose, as, obviouslF, the Ministry cannot be expected to m~intain a vacant position in its establishment indefinitei~ while the former incumbent decides whether o= not he wishes to ~roceed further in the ma:ter, particulari~ when the ~resent staffing ~onstra£nts are For the~e reasons we regret that we must inform ~;ou that we are not ~re~u~ed to waive the time in this case~ yours :rulv , N. H. Pettifor staff Relations Supervisor Quite c']ear~y the M~nistry ~eSected the request for waiver of the time The m~xt step in the sequence oF events was that by March 6, 1978, Mr. R. Nabi, a Grievance Officer for the Union w~te to the Grievance Settl~ent Board requesting a hearing on behalf of the grievor pursuant .to Article 27. He wrote as follows: ~£: Nr. Sam ~. K~eling Nin/s~!~ of ~'rans~tation and Co=¢at/onsI . ~istrict 6 sarape, Downsview, Ontario J~ar In accordance with Article 27 of the Collecti~e between the Ontario Public Service Employees Union and The Cro~n in Right of Ontario, we request a Hearing bV ~he Grievance Settlement Board on behalf of Mr. Keeling; enclosed for your reference is a copy of the grievance as, o~iginall ~ presente2. Yours yeti/ Richard Grievance officer This request made no reference to the issue of time limits but by letter of March 9, 1~78, {Exhibit 7), the Ministry registered its objection to the heari.ng on the basis of the time limits. The letter was as fo 11 ows: m ~ Personnel ~ranch, is= Floor, West. Tower, 1201 Wilson Avenue, DownsFiew, On~io ~ ~ch 9, 1978 The C~ ~plov~s Gki~ce ~n~ Pzofessional ~ilE~g, 180 ~as S~t West We .~ve' m~eive~ a ~ of ~ appiica~on bE ~e On,rio ~lic Semite ~io~ees U~on. for a he~g ~iev~ce in reset of ~ssal for ~use on ~if ~tio~ four ~ploFee of ~s in ~s ~tion, we are ~closing ~e ~een ~s Hinis~F ~d ~e ~pIoFee Re~esen~ve r~a~ve Coll~tive Agree~nt in reset= of WorkSng CoaUthor. The put, se of =~s letter is Minis~F does not in~end to wmive ~he ii, ts es=ablishe~ Yours ~ul~, Staff Relations Su~rvisor -9 In the .result, the Board set the hearing .for May 16, lg78 at which we heard argu~nt on this preliminary objection. At the hearing, Mr. Nabi, counsel for the grievor explained Why the grievance had not'been filed wi~thtn the time limits of Article 27. He stated forthrightly that the delay was caused by the UniA~'s error. Apparently responsibility for the grievor's case was shifted to a relatively inexperienced union staff member part way through the process and 'in the shift,the Union failed to keep sufficiently close watch on the time perioJ~.. The grievO'r was outof town looking for w~rk during a portion of the relevant time period and that further .i contributed to the confusion and delay. ~Mr. Nabi acknowledged the error on the Union's part but argued that it.was neither just nor legally requtrmd that the grievor should bear the burden of that error. Ne stated that the grievor was not responsible for the~error as he had been assured by the Union that the processing of the grievance would be looked after, It was only When the grievor inquired of the Union as to the status of the case that the~'~nion realized the delay and its consequences. Part of the cause of the error was likely the fact that · ' the grievor and not the Union received a copy of the January 23, 1978 letter denying the Stage Two grievance. While M~. Nabi acknowledged that the collective agreement does not require that the Ministry send ~m]~r~-, a copy of the let'ter to the Union, he suggested that this was both a :on~nonlpractise within the Governnmnt of ~Ontario and a useful one. While it is uncertain whether on the facts of the case that sending a copy of the letter to the Union would have prevented the error, it does appear to be a practice which the parties may find mutually beneficial in the future. The Union's response to the Minlistry'$ preliminary objectlion i_. was first to explain the delay as described above,and second to argue that despite the delay and the breach of the time limit require- ments stated in Article 27.4, the Board had jurisdiction to hear the ~ case and should dismiss the objection. The Union's primary argument m)m WaS that the mandatory time limits set out in the collective agreement are inconsistent with certain rights granted ail unionized employees 4n the public servi~'e by the Crown Employees Collective Bargaining Act, mm '.$.0,1972, c.67; as amended, $.0, 1974, The Union relied on Sectlons 17 and lB of the Act which are as follows: I7.-(I) ~ver~l coIiective ag~:reement sba11 ~ ~ ~ Of ~ fo=ego~g, ~cludes ~e right to ~et~e, ~on, assi~nt, discipllne, di~sS~l, s~ion, ~rk ~t~ds and ~c~ures, ~nds ~d locations of e~ip~nt ~d classifica~on (b) ~rXt ~t~, ~mi~ng ~d de~elo~nC, w~ch are s~J~= to review b~ ~e ~BIo~er wi~ ~e ~rgaining agent, ing nor CO~ witch ~e J~isd~ction of ~ ~rd. (2) In addition to any o~er rights of g=ievance under a =ollective agree~nt, an employee Ia) that ~s ~sitimn ~s been Jmpro~rl~ clas~ified; (b) t~t ~ ~s ~en app=aised contrarw to the governing principles and standard~; or (c) that he has been discipi'ined or dismissed or sus~ pended from his emplogment without just cause, ... mag process such matter in accordance with the grievance prOCedure provided in the collective agreement, and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final determin- ation applicable un, er sect/on lB. .1974, c. 135, s. 9, part. 18. - (t) Evel~ collective agreement shall be deemed to ... provide that in the event the parties are unable to effect a settlement of any differences between them arising from the tnterpretatSon, applica~ion, ~dministmation or all~ged contravention of the agreement, including any q~estion as to whether a matter is arbitrable, such ~at~er ma9 be refer- red for arbitration to the Grievance Settlement Board and ~he Soard after giving full opportunit~ to the pa~ties to present their evidence end to make their submissions, shall decide the ~atter and its. decision is final and. binding upon the part/es and the employees COvered b~'~%e agmeement. (2) The Grievance Set=lament ~oard has the same powers as a board of arbitration under subsections 12 a~d 13 of section I0. {3) Where ~he Grievance Settlement Board determines a disciplinary penaI=~,or dismissal of an employee is ex~es- siva, it ma~ subs~iCuCe such o~her penalC~ for the discipline or dismissal as it considers ~ust and reasonable in ail =he =iz~ms~es . (4) Where a partE or an emploFee has failed ~o complE with an~ of the terms of the de~ision of ~he Grievance Set,leman= ~rd, anE part~ or emploFee affected bF the decision after the expiration of fo~z~een ~a~s from the dace of the · melease of 'the decision or the date provided' in the decision for compliance, whichever is later, file in the office of the Registrar of ~e Supreme Court a copy of the decision~ exclusive of the reasons t_he~efor, whereupon the deci'sion shall be entered in the same waF as a judgment or order'of that court a~d is enforceable as such. 1974, c. 135, s.9, par=. isa. - (i)There shall be a Grievance Settlement Scare composed of a chairman,, one or more vice-chairmen anE an equal number~ that shall be determined bF ~he Lieutenant Governor in Council, of members representing the emploFees t~st are represented b~ a bargaining agent and members representing the emploFer. (2) The Lieutenant Governor in Council shall appoint, for a ,term of not more than ~wo Fears and ma~ for one or more subsequent terms of not more than ~ears each, the chairman and =he vice-chairman or vice- chairmen after requesting and considering the views, if of each bargaining agent. · (3) The m~mbers who are representati~ve of the emplowe~ shall be appointed b9 ~h. Aieutenant Governor in Oouncil ~ ~he ~s w~ are represen~ve of ~e interes~ of ~pI~g~s s~ll ~ ~p~inted by ~ Lieu=e~nt in Council al=er r~es~ng and co~idering the vi~s, if of each ~rgaining agent and such ap~in~n~ s~lI reap~inted for one or ~re s~=e~ent ter~ of ~t t~ two ~e~s each.' (4] T~e Griev~ce Se==Iement Board ~y sit in ~ or ~re ~els as decided and assigned b~ ~e c~ir~ so long as a quor~ is present in each ~nel. (S) The ¢~i=~n or a vice-c~ir~, one ~r repre- send,ye of ~plo~'~ in=erest and one"~r represen~tive of emploger interes= oo~tute a quorum ~nd are sufficien= for the ~xercise of all ~e j~isdic~on ~ ~wers of the Griev~ce Set~ent Board. (6) The d~ision of a ~Joritg of ~e ~ers present ~ ~tu~ng a ~or~ is the decision of ~e Griev~c~ Set~nt ~d, ~d, if thee is no ~jority, ~e decision .' (7) ~=e a ~= of ~e ~ri~e Se=~nt ~d resins, ~ ~ c~=~ .out ~d ~mmlete ~ du~es or res~ibili~es ~d ex~cise ~ ~er$ ~= he ~d o~ prac~ce ~d ~c~e but s~l ~ive full ~ ~e ~es ~ ~ p~ce~ings to ~esent ~eir evide~e ~d to ~e ~ir s~ssi~s, ~ ~e Griev~ce Set=I~t ~r~ ~, s~jec~ to ~e app~v~ of ~e ~euCe~= Gov~ nor in Co--il, mke r~a~ons ~v~r~ng i~ practice proc~=e ~d ~e exercise of its ~wers and prescribing 'such for~ as are considered a~isable. (9) The ~eute~nt ~v~r in Co,cji ~ ap~int a regis~ar, .such oth~ officers and such =~ff and ~rso~ as are re~i=ed for th~ ~ses of '~e Grievance ~o~d ~d the~ s~ii exercis~ such ~rs and p~fo~ such ~uCies as are conferr~ u~n th~ by ~e Grievance ~nt (i0) The c~i~n, the v~ce-cMir~n or vice-c~ir~n ~d =he ~r$, the officers ~d s=aff of the Grievance SeCtle~nt Boamd s~il ~ ~id such re~neration and alI~ance, fora ex~nses as ~e Aieute~nt'Gover~r in Council .~ dste~ne. (I1) The Grievance Set=iement Board shall .have an'official seal. [12) The office of the Grievance Settlement ~oard sh~ll be in the CitF of Toronto, but the Grievance S~ttlem~nt Board may sit st ~uch o~her ~Iace$ as it uonsi~ers expedient. 1974, c. i$$, s. 9, p~rt. ~n'garticular~ the Union's argun~fit' was that section 17(21(c) grants any employee who had been dismissed from his employment without just cause the right to have his grievance come before the 6riewnce - Settle~nt Board for a final dete~ination. Furthe~ore, the Union argued that the collective ~gree~nt can in no way abrogate or 'limit this right since any attempt to do so would be an attempt by the ~rties to the collective agre~nt - the Union and the Cr~ {representeU by the l~nag~ent Board of Cabinet) -~ to deny the stated requir~nts of the .. legislation. ~-. m~ ~ ' The Union offered a se~nd a~u~nt to the effect that the B~r~ had the discretion to deny ~e p~liminary objection by virtue of section 50 of t~ Cr~ ~l°Y~s Collective Bar~aintnq Act ~tch stateS: 50. ~o pr~~ ~er ~s Act ~e in~ali~ b~ rea~ of pro~e~ngs sh~l ~ ~h~ Or set ~ide if no wr~g or ~scar=iage of ~~ ~s The Un~o. a~gued ~at the b~each o~ the t~me ]~m~ should be characterized a~ a "techn~ca~ ~egula~t~" and that ~he delay ~hou]d ~he~efo~e ~nva~date the g~e~ance In considering the preliminary objection, it should be stated at the outset that there is no doubt as a matter of fact that the application dated ~arch 6, lg78 for a hearing of the grievance before the Grievance. Settlement Board failed to meet the demands of Article 27.4 which requires the application to be ~ade within 15 days of the date the grievor receives the Stage Two decision .... .At the hearing the parties did not raise the question of how the fifteen day Period should be measuredand whether actual receipt of the decision by the grievor is required to initiate the period. The Board therefore sought by a letter dated ~lay 24, 1978 to l..the parties to obtain the~parties' submissions on this question. However, in submissions dated June 7, 1978 and June l~, 1978 respectively the Union and the Ftinistry agreed that whatever interpretation were given to Article 27.4, on the facts of this case the application for the hearing violated the timeliness requirement. · Furthermore, there can be no doubt ·that the time limits stated in Article 27 are m~ndatory and not directory as Article 27.9 provides that the effect of breach of the time limits ~s to deem thelgrieva~CEl'ito. be withdrawn (see Woodlands Enterprises ttd. {lg76), ll L.A.C. (2d) l {Norman)). In addition, the mandatory nature of the time limits can be derived by implication from Article 27.11 which provides that the time limits may be extended by agreement of the parties in writing. Therefore, as we are unablel to deal withlthe preliminary objecti0~as a matter of interpretation of the provisions of Article 27, we a~e forced to turn to the Uni'on's primary submission that Article 27 cannot be g~iven effect as it is inconsistent with ~nd contrary to the. .i legislative scheme of grievance arbitration set Out in sections 17 and 18 of ~e ?own £mplo~.ees Collective Bargaining_Act. In so doing,- it is important to place this issue in the general context of timeliness in grievance arbitration.' ,1 The issue of the effect and proper interpretation of .time limits in collective ~greements has been a continuing and substantial one in Canadian labour arbitration. {For a sun,nary, see Canadian Labour Arbi.tration (1977) pp. 78-85; Pala~r, Collective Agreement. l ~bitra:ion in Canad_a (1978) pp. 154 - 163. ):or a critique of the arbitral and judicial handling of the issue, see Beatt~, "Procedural .. Irregularities in Grievance Arbitration", (1974) 20 McGill L. J. 378). At least twice in the past decade the issue has been considered by the Supreme Court of Canlada: '(see Union Carbide v. Weiler {1968} $.C.R. 966 and Genera/ Truck Drivers Union Local 938 v. Hoar .TranslmortI (1969], '2 4 D.L,R. (3d) 449 (S.C.C.)), has frequently been considered by lower . courts in applications for judicial .review,and has beenlthe subject of mm ~ :' .m a large number of arbitral awards' (see the authorities collected in Brown and Beatty, ~ and Palmer, .sup?a). In reaching our decision in th'is ~ ~m mm m r ~ m mll ..'.'Fi' m~ c~ e we have considered much of this private sector jurisprudence on time limits. In addition, we have also considered the large body of awards and court decisions dealing with the analogous problem of attempts to-limit access to statutorlly required arbitration as the ultimate .forum of grievance resolution (see z~tez~a~aJ ~a~e~ ~ta. (t~77), i7 ~.~.¢. (~d) 62 (schiff) and Zorontp Star Newspapers Ltd. (unreported reasons dated November 23, 1978) (Prichard) and the cases cited therein). While all of the above have been of assistance, the ruling on the preliminary objection must be derived from the dictates of sections 17 and ~8 of the Crown Employees Collective Bargaining Act and any limitations on those sections found in the collective agreement or elsewhere. The meaning of these sections has been dealt with extensively in ~.prevlous decisions of the Grievance Settlement Board. in analogous situations, In particular, the decisions in Re Eriksen (12/75) and Re Joyce (21/76) canvassed the right of probationary emplOYees to grieve their dismissals. Therefore, a careful analysis of the reasoning underlying those decisions is essential to the resolution of this case. in Re Joyce the Board was faced with the preliminary objection by the Ministry that the grievor was not entitled to grieve her dismissal as she was a probationary employee. The Union responded that section i7(2) of the Crown Employees Collective Bargaining Act granted the right to all ~m )memployees to grieveltheir dismissal before the Grievance Settlement Board and that this right could not be limited by regulation, prior legislation or the express terms of the collective agreement. In particular, it was argued that despite an article in the collective agreement which stated.' .... "Any probationary employee who is dismissed or released Shall not be entitled to file a grievance", the right stated in section 17{2) could ,. not be fettered by the Contractual agreement of the ~ton and the government. In the result, the Union position was upheld and the probationary employee was~ii'~l'~"to have a right to bring her grievance. The Board's reasoning, quoted at length below, was as follows: The ~econd limitation adverted to by the employer, which it ¢Iaimed d~ied a proba=i~nar~ employee =he right to invoke his or her mights under s.i7(2) of the Act, is found in article 30.6.1 of =he collective agreement ... 30.6.1.Any p=oba~ionary employee who is dismissed or melease~ shall not be e. nC/C/ed Co file a In determining the effecC to be given to such a provision, iC is, we believe, important to recognize at the outset that The_ Crown Collect~ve Bargaining A~ departs from the ~radi~ional ~de2 of the labour relations legi$1ac-~on con, only prevailing in the private =ecto=. That is co say in sharp contrast with the ueual Labour Relations Acts b~ which in6ividual rights are made sub]eGt CO the interests of =he cO~leccivicg in s.17 (2) of =his legislation one finds a clear and unequivocal recognition of basic rights which enure specifically to the individual employee ... The point is, a.nd"regardless of its merits, the Legislature has seen fit tO bestow upon its emplogees certain fundamental rights quite apart from and independent of'an}j other r~ghts secured on 'their behalf by their bargaining representative. A~ the section' quite expiici:ly States the right to grieve the matters described in paragraphs (a) to (c) "in addition to" anW other rights of grievance that these employees have secured under a collective agreement. Succinctly, ~hose rights are personalized to the individual 'emplogee'. Indeed when reference is made to s~.6,17(1) and 18 of the Crown ~mploBees Collective Bargaining7 Act it becomes apparent that if, as it must have, the Legisla:ure intended to "' create a right of grievance with respect to the matters delineated in s.17'[2), it would of necessity have had to personalize them rather ~.than' to bestow thmm upon their bargaining representative. That~..i.s, i= is apparent from sections :hat, while being entitled to negotiate' proce~umes applicable" the processing of grievances, the parties, (being the employer and the union) are specificallF prohibited from'negotiating about such matters as discipline, ~ismissal and appraisal. Necessarily then and as S.t7 (i) makes quit~ clear, a collective agreement, however settled, simpl~ zould not purport to include within i.:s terms anw provision which' touches upon and is related to Chose specific matters. It also follows therefore and indeed explains whF, when the Legislature '.intended to b~stow the right to grieve on t~e matters described in s. IT(a) (b) a~d (c) that it would have had to them "/n add/t, ion ~o" rights. ~nder a collective agreement and as well woul~ have had Co personalize them to :he 'empio~ee'. I: is in that context t~.en that one must assess th~ part/es attempt, b~ s.$0.6.1 of their agreement' to nullif~ certain of the rights set out in s.17(2) for a certa/n segment of the 'em~Iogee' complement ... Ass~,,~g '(although a cogent argument could be marshalled to ':he contraz~) :hat azticle 30.6.1 falls within the parties competence as be/hq a matter "per:aining to :he grievanc~ process, and not a matter of discipline, dismissal or appraisal, :hen we believe, for at leas= three reasons :ha: article 30.6.1. can not effe~ively strip ~is grievor of'her right ~o come before this ~oard with respect to the matters delineated in s.17(2) of the Act. In the first place as s.l?(2) provides..t~.emplo~e ma.~.p~ocess the matters described therein "in accordance with :he grieva~ce procedure provided in the collective agree_.~e_-nt". Although it is true =hat article 30.6.1 purports bg its plain terms to deng probationarg 'employees' :he right to even file such a 'grievance, nevertheless s.17(2) of The Act continues stipulating tha~ "and failing final determination un,er such procedure,. the matter may be ~rocessed in accordance wish ~he procedure for final determination under s.18". NeCessarily then even on a literal =ending of the section when someone, such as Ms. Jo~ce, who ~laims a right under s.17(2) of :he Act 'is .unable, by virtue of 3~,6. i, "to process such matter" it must follow that her oom~laint has not been finally determined and accordingly it ma~ be brough~ directly before this Board pursuant to as ~s. Jo~ce has done in :he grievance before us. Put somewhat differently it can be argued, as the union did, that article 30.6.1 although denying a probationar~ emplowee the right to grieve his or her release or dismissal, does not purport in any way to affect such a person's rights, u~der s.i7(2) of :he Act, to h~ve the mat:er of h~s termination finally 'resolved b~ =his Board. However, and much more fundamentally, even if we are in error in our interpretation of article 30.6.i. of the agreement and of s.17(2; of the Act, we believe that article 30.6.1. however it was settled or determined can not in any way inhibit Ms. Joyce's or an~ other probationer's .right to grieve, because such a provision manifestlF offends against the statutory provisions set out in s.!7(2]. That is and contrary to the submissions of both of the parties we believe that in article 30.6.1 the parties, (or the board cf arbitration) have imPr°Pe~19 attempted to contract out of the statutory provisions described in s.17(2) and that necessaril9 such a clause must be deemed to be null and void. in reaching this conclusion, we do not believe it necessarW to describe or canvas in the abstract, the principles of law generally app~icable to the ability of two parties to contract out of legislative enactments. Rather these principles (which are set out in Halsbury's Laws of England Vol. '9 4th Edit. paras 407-421 and Vol. 36 Prd Edit pp.. 435-444 and. d~scussed in Laskin, B "The Protection of Interests 'B~ Statute and The Problem of Contracting Out" (1938) 16 C~. Bar Rev. 669 a~d in .~ Note appearing at 23 U. of T gac. L.Rev. 1'66) generallp pertain to the ability Of.. two parties to contract out of a legislative provision which has been WS~cted for the benefit of 'one of' them. In this case, b~ wa9 of contrast, two .parties, :he ~nion and the employer have, by signing ~his agreement, attempted to deny to third persons, (the proba~ionarF employees), who in no sense can be characterized as stand- ing in a ~rincipai and agent relationship with either one' of them' (Re Le S,~ndicat Catholiq~e des ~mplowes de Ma~asins de Quebec Inc. v La Compagnie Pacquet Ltee) (1959) 18 D.L.R.' (ld) 346, 355-35'6 per Judson J.), rights : which :he Legislature has ~estowed upon =hem. Very simply to hold that the cimcumstances of this case =wo parties could effectively bF con~ract denW third persons not $rivF to that ~ontract, righ:s which are enshrined " in legislation would offend agent centuries of common law doctrine. On that basis alone then, even if ~uch an arrangement were valid an4 enforceable as between the parties to t~e contract, it is firmlw settled the: it could not, /n an~ wa~ affect the rights of persons, such as Ms. Jog~e, who were not par~ to it. (Re Beswick v Seswick (1968) A.C. 70 (H.C.) ; Dunlop Pneumatic T~z~ Co. Lt_d. v .Selfridge, & Co. Ltd. (1915)'A.C. 847 (H.C.). Nor can. it be argued 'that b~ virtue of s.ig(l~ of the Act that such a provision is made binding upon the em$ioyees. To the contrarg, as we discuss below, that section, by which emplog~es are bound b~ ~ provisions of an aFreemen:, expressl~ disclaims that' such agreements are "subject to the Act". Necessarily then such agreements including a clause such as 30.6.1. must be read as :being s~bject.to the ~azamoun: rights that are enshr/nad /n Moreover, even if. that fact were not sufficient to render ineffec:ive any attempt ~o coat=act out of a provisions such as s.i7(2), the jurisprudence on =he abilit~ of unions and empioy%rs to contract out of mandatory provisions of labour relations legisla:ion, while sparse, has uniformly held such attempts to be improper, illegal any of no force or effec: even as between the parties to the agreement . .. While not strictly binding on this Board, we believe that this over- whelm/ng consensus of opinion, reflected in the decisions of Courts, Labour Boards and arbitrators, is directly applicable to the grievance before us. Quite apart from the effect of article 30.6.1 on the rights of third par:ies in each 'decision referred to above the adjudicators unequivocall~ held aha= the legislative schemes before :hem, which clope!~ parallel the one manifested in s$.17 and 18 of this Act, are paramount to and can not be subverted or derogated from bU an agreement of the parties. To paraphrase the Ontario Labour Relations Board, these parties are simply not competent to enac¢ private legislation of ~heir own which would subvert the Legislature's intention that is manifested in s.17(2) of :he Act. Indeed, in the legislation before us, the I~gislature has made 'it clear that :he Union and the employer simple are not permitted to enter into arrangements such as that contained in article 30.6.1. In the first place, in s.19 of :he Act the collective agreement while made binding upon the' emploEer, the Union and the employee, is expresslg made "subject to" the Act. Even more explicitly, in s.27(2)(b)'the Legisl. ature has Brohibited the employer from "imposing-any condition on an appointment or in a contract of employment that seeks to restrain an employee from ..... exercising an~ right under th/s Act." ~y i~s plain :erms article 30.6.1 in den~ing a probationarw "emplowee" :he righ: to grieve the matters described in s.!7(2) of the Act has attempted to do '3ust that. That attempt we believe is, for :he reasons given invalid, unlawful and of no force or effect. To summarize this reasoning, the Grievance Settlement Board has previously held that the right 9ranted an individual employee to grieve his dismissal pursuant to section i7(2) o~ the Crown ~mployees Collective Bargaining Act cannot.be denied by any provision ~n the collective agreemen~ entered, into by the Union and the Crown .in Right of Ontario (represented by the Managemen~ Board of Cabinet), To hold otherwise wou]d be to a]]ow the parties to act contrary to the Legislature's intent as expressed in the statute as a whole and section 17 in particular, which has been to create a scheme of labour relations regulation for' t~e public sector which strongly and unambiguously endorses the untrammelled Kight of individual employees to grieve their dismissal or other discipline.I To apply this reasoning,'which we accept in full, to the question of time l.imits raised by this case, the exact language of section 17{2) must be considered. It states that "zn a~d~tion ~Olam~ other rights of ~r~e~ance under ~ collective agreement, an employee claiming .... that he has been .... dismisse6. from his employment without Just cause, ma~ process such matter in accordance with the grievance procedure provided in '.he collective agreement, ~nd failing final determination under such ~rocedure the matter may be ~rocessed iD acc~r~an~ with the procedure for final determination applicable under section 18". (emphasi added). Section lB then provides for final ~nd binding arbitration of grievances by the Grievance Settlement Board... The effect of the two sections is relatively clear, The right to arbitration under section 17{2) is "in addition to" any rights tn the collective agreement. Further, in the absence of "final determination" · -- through the grievance procedure, the emplo%ee has the right to bring the matter before the Grievance Settlement Board for a.~inal and binding determination of the issue, The first use o~ the phrase "final determination under such procedure" in section 17(2) must ~e given the meaning "final determination under such procedure acceptable to the employee" in order to mm ~void the logiEally absurd argument that a determination at Stage Two of the grievance pro~ess is a "final determination under such procedure" and thus exhaustive of the right of grievance. .i Given, therefore, the statutory right of the employee to reject the outcome'of, the grievance process and to turn to the procedure fo~ abitratton' ~ m - pursuant to section 18, this right cannot, for the reasons given in Re-Joyce ~be limited or denied by the terms of the collective agreement. To give effect to the Ministry's submission that the failure to meet the requirements of Article 27.4 forces the Board to decline jurisdiction in this grievance would therefore be contrary to the statutory mandate under which this Board acts and we must therefore reject the Ministry's submissions on this issue and proceed to hear this grievance on its merits. We recognize that this conclusion that mandatory time limits in a collective agreement ~re inconsistent with the. requirements of the Crow~n Employees Collective Bargaining Ac~at least in the case of individual grievances brought pursuant to section~7(2),is different from the conclusion we would have re~ched if we were construing the relationship between mandatory time limits and the grievance and arbitration requirement of section 37 of the Ontario Labour Relations Act. In the private sector, regardless of the. correctness of Hoar Transport {S_Up._r_.a) and Un_ion Carbide (supra), the 1975 amendments to the La,bout Relations. Act_ {S/0. 1975, c. 76) which introduced section 37 {Sa) to the Act clearly indicate by negative implication that there can be mandatory time lin(ts in a collecti.ve agree- .-- ment consistent with the requirements of section 37 as a whole. If this were not the case, the provision in section 37{5a) for opting-out of its effect would be meaningless. However, this difference in result is reasonable in that it can be traced back to differences' in the basic Structure and philosophy'of the two Acts. The private sector model is built on the relationship between the union and the. employer while to a much greater extent than in the private sector, the public sector statute stresses the' rights of the individual employee to seek arbitration 0~lhi$ grievance before statutory .trt burial. The 'conclusion that the mandatory time limits in Article ~-7 are ineffective to bar a grievance which can be brought within the right granted by section 17(2) does not eliminate the relevance of de~ay but rather m~kes delay an aspect of the merits rather than of jurisdiction. As is stated in Brown and Beatt~, Canadian Labour Arbitration {1977) at pp. 84-85 in the context of the private sector: Whe~'e the oollect~ve agreement does not provide for T' m m ~ Cite limits, or merely, directory time limits exist for the f~l~ng and processing of grievances, a grievance may nevertheless be dismissed or declared Co be inarbitrable l~cause of ~Wue delag. ~arring a grievance from arbitration on the merits for ~hat reason, however, is not a matter which goes to ~he jurisdiction of ~he arbitrator. Rather, declining to deal wi:h a dispute on the basis of undue delay is akin to ..... the equitable doctrine of laches as applied in civil courts, and :he decision in each case is· a matte= for the arbitrator to make in his discretion.' Accordinglw, it has been held that 'where the dela~ arose because one part9 was unaware of the violation, the grievance was not inarbitra~le on ~_ 9round o£ delay. ~s wi~h the docCmine o£ i~c~as, usually mere delay alone will not he a bar to arbitration. In each case the c=iticai factor will be whether the delay caused prejudice to the party objecting. In this regard, arbitrators have held that =he absence of an important witness, a change in position such as entrenching a practice, ~he destruction of important records, a lessening of the company's ability to deal with the dispute or to have a "fair hearing", caused sufficient prejudice =o warrant dismissal of the grievance. On the othe= hand, where fault could not be attributed to the griev°r and where both the compan9 and the union., contributed to'the delay, =he grievance was not dismissed. (footnotes omitted) In the case before u's, there was no evidence of any prejudice resulting from the relatively minor delay in seeking a hearing before the Board and therefore lthe doctrine sun~arized above ~oes not affect the outcome of this case. However, it should be emphasized that 'the timely processing of grievances is essential both' to successful labour relation.s and to avoidi.ng, 'delay becoming a factor in the merits of grievances. In result then, with regard to the preliminary objection, we conclude it must be dismissed. The language of section. 17{2) .must, in the absence of evidence of 'unreasonable delay or prejudice arising from the delay be given effect, and thus Article ~7 of the Collective Agreement c~nno~ ser. v,e to dePr. t_ve the grievor of his right to have his grievance heard on the merits 'before this Boa'rd. Given this resolution of the union's primary argument, it is not necessary for us to reach a firm conclusion regarding the Union's second submission that the Board might fin6 authority in section 50 of the Crown Employees Collective Bargaining Act to relieve the effect of the breach of the time. limits in Article 27. Furthermore, the issue was not canvassed particularly fully before us 'and therefore an actual determination of the meaning of section 50 should await another case, However, since the issue was raised by the parties and considered by the Board we have made a number of co~ent$I on It below. To repeat, section 50 states: 50.. ~o proceedings under this Act are 'invalid b~ reason of any defect of form or any =ethnical' irregularit~ and no such proceedings shall be quashed o= se= aside if no substantial wrong or miscarriage of justice has occurred. 1972, c. 67, s. 50. The Union argued that the breach of the time )imit should be treated as a "technical irregularity" or a "defect of form" and that therefore the processing ~f the grievance should not be invalidated since there was no evidence that such a decision would result in a "subs.tantial wrong or miscarriage of justice". In considering the meaning of section 50, it is revealing to exmine the identical provision in the Ontario ~a~our Relations Act, (R.S.O. 1970, c. 232 as amended). Section 103 provides: 103. No proceedings under this Act are invalid bp reason of an~ defec~ of form or an~ technical irregularit~ and no such proceedings shall be quas~d or set asi~ if ~o s~,__~_taatial wron~ or miscarriage of 3us~i~e has oc~urred~ R.S.O. 1970, c. 232, s. 103. This section has been the subjectofarbitral and judicial consideration and the Supreme Court of Canada has twice conmmnted on its meaning and. effect in ~elationship to time limits in a collective agreement. ~n ~nion Carbide v. r~ei)e~ (1968) 70 D.L.RJ (~d) 333 at pJ $36"{S.¢.C.), Oudson, J. c.onmmnted as follows on section 86 of the 1960 Labour Relations Act which is identical to section' 103: Nor do I think t. hat s. 86 of the Labour Relations Act affoz~s an~ foundation for the de~ision of ~he B~ard. Section 86 reads: ~- 86. No proceedings under this Act are invalid b~ reason of any d~fect of form or an~ t~chnical irregularit~ and no such proceedings shall be quashed or set as/de ifno substantial wrong or miscarriage of Justice has occurred. Section ~6 ~s directed solel~ to 'the Courts. The whole purpose of the section is ~o require the Cour~ on motions by way of cer:iorar~ or o~herwise-'when .~ Che~ are considering proceedings under the AcC, for example, hearings before, and decisions of the 'Labour Relations Board, not to quash such proceedings 3)ecause of defect of form or techn~caI irregularity. Section 86 does not " enable a board of arbitration, as the majority thought in' Chis case, to ignore the plain and emphatic language of the written contract. The same'section was considered in Genemal Truck Drivers mm ' LOcal 938 et al v ~(oar Transj~ort Co. Ltd., (I969) 4 D.L.F~. (3d) 449 at 46I {S.C.C.) by Spence, ~J. {dissenting, but on another point) as- foll ows: I am also of the opinion that s. 86 of the Labour Relations Act, R.$.O. 1970, c. 202, does not ~ermit ~he ~ard of arbitration to ignore the exact p~rovisions of =he collective agreement and that th~ failu~re to com~l~ with such ~rovi$ions is no mere "Cechnicai irregularity". Indeed, counsel for the appellant declined to urge such a submission on this Court. In light of these two Cruses, one might conclude that by. analogy, section 50 of the Crown £r~loyees _Collect_ire Bargaining Act cannotI be used to relieve the grievance from the effect of'missing the time limit. However, a number of factors might suggest a different result. (For a criticism of the decision in Union Carbide, supra, see Beatty, "Procedural Irregularties in Grievance Arbitration", {'[974) 20 McGill. L. J. 378 at p. 383). First, unlike the ad hoc arbitration boards created pursuant to section 37 of the Ontario Labour Relations Act,the Grievance Settlement Board under the Crown Employees Collective Bargaining Act is a standing statutory tribunal with its members appointed byr Order- in-Council pursuant to section I8a of the Act. Second, Bnd complementary to the first point, section 50 can reasonably be read disjunctively with the direction "No ~roceedings under this Act are invalid by reason of anx defect of form or any techni~ai 'irreg~larity..if no - substantial wrong or miscarriage of justice has occurred" being applicable to al._.~.~proceedings under the Act including those before .the Grievance Settlement Bomrd, The second part of section 50 ~tating that "no such proceedings shall be.quashed or set aside" would then be ...; .... read as directed exclusively to the courts in considering applications for judicial review..Third, as to the-meaning of the phrase, "technical irregularity'', which Hoar Transport, supra, res~micted, it-might be' possible to argue that'a* somewhat broader meaning should be attributed to it under the Crown Employees Collective Bargainin~ Act. given the intent - "' of sections 17 and"18. (In a different context, see the comaents of mil: ~I Justice Brooke in Re BlouJn Drywall ContraCtors Ltd. and United ~.i Brotherhood of Carpenters and Joiners of. America, Local ~486 (1976} 57 DLR .(3d) t99 at p. 204}. 1' ..... These three factors, and others which may be raised in a SUbsequent ' ... argument, m~ght allow the Board to give section 50 a broader interpretation ' th~n that given the ~nalogous provision in the Labour Relations Act. However, as we stated above, since it is not necessary to reach a rim decision on this question to dispose of ~he grievance before us, we prefer to leave a decision on ~it to a future case. V Turning now to the merits of the case it is necessary to review the factual background leading to the grievor's dismissal. Un(ortunately, while there was agreement by the parties on most of the circumstances, there were sharp, and important differences in the testimony of the two key witnesses on one central allegation. We are thus forced to.make a difficult assessment of credibi, lity and then findings of'fact on this question. The incident which led to the grievor'$ dismissal had its origin on November 14, 1977. On that day the grievor had sought and received pemnission from his supervisor, ~r. Hetherington, to leave work early to attend a dentist's appointment. He therefore left work at 2:00 p.m. instead of his usual 4:00 p.m. However, when he left he_ forgot to sign out on the daily register (Exhibit g). Therefore the nekt morning, Nove~er I5, after Hr. Hetherington noticed thfs omission on the time -sheet, the grievor was asked to sign. At that time, he entered his leaving time as 4:00 p.m. m~mmm and not 2:00 p.m. When a~ked why, he explained that the sheet already had entered On it a notation that he had worked B hours on Nove~4)er i4 so he assumed that he should put a leaving time which would be consistent with that. Understandably,lwhen Mr. Hetherington noticed this entry he went to find the grievor in the garage where he worked and inquired'about the discrepancy between the time sheet and his leaving time. Mr. Hethertngton then asked the grievor to come to Mr. Hetherington's office to sort the matter out. In the office, the grievor asked Mr. Mether~ngton what he wanted -~-- to do about the time sheet and Mr. Heth~rington said he wanted it changed which the g~ievor agreed to do. While this was the substance of the meeting in the office, the style was very different. Both men described the disoussion as "agitated" and both indicated that there was some "abuse of Her~Jesty's language". This incident followed a series of Otf~erences the two men had had over a period of time ds to the grievor's punctuality and attendance record and thus the anger is perhaps somewhat more .- understandable. However, the most-distinctive, and in retrospect the most regrettable, aspect o7 the meeting was the tone, manner and language employed bY Mr. Hetherington in attempting to counsel or discipline the grievor with regard to the time sheet discrepancy. The grievor is a'.black man, originally coming from the Caribbean. As such, he has continued to have a speech mannerism not uncommon in the Caribbean of ending many sentences with "man". For ex~mp!e, he testified that he asked Mr. Hetherington, "what do you want, man?". Unfortunately, in the meeting in his office, -i Mr. Hetherington took it upon himself'to mimic the grievor by responding ~ to the ~rievor with sentences phrased using the same speech mannerism. '' While there'was some dispute as to the ektent of this behaviour by Mr. Hethertngton, he did not deny that he mimicked the grtevor during the meeting, Ir'is difficult to understand why Mr. Hetherington, a supervisor engaged in deQling with a problem with one of his employees, would use this style' which 'he must have known would be offensive to the grielvor and very likely to add raUiallyinsptred overtones to the situation. On a previous occasion there had been some suggestion by the grievor to Mr. Hetherington that the grievor's race was influencing ithe supervisor's attitude so Mr. Hethertngton should have recognized the foolishness of behaving in this way. There is no doubt in our minds that his behaviour was a substantial contributing factor in the subsequent incident. After some discussion in Mr. Hetherington's office, the grtevor agreed to initial a change on the daily register to reflect his actual leaving, time a~d that ended the meeting. Upon leaving the office, the door slan~ned behind the grievor. Mr. Hetherington testified that he saw the grievor slam the door while the grievor testified.Shat he pulled it · -- hard behind him but did not slam it. Whichever was the case, there is no doubt that the door's closing created a loud noise and that this angered Mr. Hetherington. At this point Mr. Hetherington used the PA system in the garalge to call the grievor:~l~¢k to criticize him for st'an~ning the door. Instead of'calling him ~into the office he called him to the window openingwhich looked out from the office into:the garage. The grievor came %o the window and a discussion ~arted with Mr. Hetheringtonlleaning through-the window to address the grievor. It is with regard to the specific content of the conversation that then ensued that the testimony of Mr. Hetherington and the'grievor differs critically. Mr. Hetherington testified that he remembered criticizing the grievor for sla~ing the door but that he could not remember the exact words he used. He said that while he did not raise his voice, he was angry. However he denied.using abusive language. He testified that the grievormotioned to himwith his hands to "come on out" as though he wished to have it out physically andlth~t in response to this he said "back off, Sam", (referring to the grievor by his Christian name). The grievor's evidence was quite different. He testified that Mr, Hetherington was angry and abusive in his language and that he ended by saying "don't slam my door again, you black bastard". At this point, the grievor instantaneously swung his open fist inlanger at Mr. Hetherington, hitting him on the side of the head. ThlSlCaUsed Mr. ~etheringt0n's head to slam against the window frame cutting his lip and bruising his temple. · The lip subsequently required a suture Which Mr. Hetherington had done at · rthe end of the work day Which was abo~t 45 minutes after the alte6Cation. If this were all the evidence before the Board, i.t would be difficult to decide whethe~ or not Mr. Hetherington described the grievor as a !'black bastard" thus provoking the grievor's physical outburst. Mr. Hetherington expressly denied it under vigorous cross-examination while the grievor was equally steadfast in ~lleging it. However, there were three other witnesses to a portion of the event. Their evidence was provided in an agreedstatement of fact {Exhibit 1). While none of the three could hear the conversation at.the window bet~en~the grtevor and Mr~.Hether~ngton, each'of them heard the grievor say "don't call me a b)~ck bastard" or words to that effect t~nediately before striking ~r. ~ethertngton. This evidence leads us to conclude that the grtevor'$ Version of the conversatto~ is the correct one and that Mr. Hetherington did refer to him as "black bastard". We are not prepared to believe that the grievor made up his st~tenmnt "don't call n~ a black bastard" in the instant before hitting Mr. Hetherington without Mr. Hetherington's firstI having used the expressionr After the altercation, the grievor left the window area "feeling badly" and realizing that he should not have hit his supervisor despite his anger. He changed out of his work clothes and then went to the head office within the garage complex with the intention of reporting - 30 - the incident and his version of'it. After speaking briefly with a p~rsonnel officer and a secretary in the head office, he went home. On mq~ reporting for work the next day he was called into a supervisor's office where the disciplinary process which concluded in his dismissal was started. Mr. Hetherington also reported the incident and then~at 4:00 p.m. he bent to the Medical Centre at Bramalea where he had his lip sutured. In sun, nary, we have a case of an assault by an employee on his supervisor resulting in an injury sufficiently serious that it required. · medical attention.' However, the assault arose from verbalI prowcattonI' with racial overtones by the supervisor, quite clearly, the assau]tr must be condemned, punished and punished severely; it is simply unacceptable in any sense for violence to become a mode of dispute settlement in the workplace. Indeed, engaging in a violent act in the workplace is one of the most serious~.possible offences an employee can con,nit. However, under the discretion granted to the 5oard by section 1B{3) of the Crown Employees Collective B)rgaintnq Act, we are required to consider whether the penalty of dismissal was excessive in the'case and, if so, to determine what penalty would be just and reasonable in the circumstances. To this task we now turn. As was stated in Dominion Glass Co. (1976), ll L.A.C. 84 at 85 (Linden): ..~,_~, There is ho.doubt that violence and insubordination b~ employees are unacceptable in an ind~stri.all~Ul~der- taking and tha: emplogers have the power, in proper circumstances, to discharge employees on the basis of such conduct. However, it is not~' ever~; case of violence or insubordination Chat will justifw the discharge of an employs, a sanction tha= has been ' called "industrial capital punishment". There are many factors which ~ mitigate the sev~ri~ of the of lance and these mu~t be considered in each individual case. It is clear that an emplow~e, who cannot or will no: submi: to the instructions of his employer, need no= be kept. 'Nor is a worker dangerous and violent temperament entitled to remain as part of the work force /n a plant. An employer has ~he righ~ -- indeed the ~ut~ -- to Lees peace : within i~s ~peration. Anyone wh~ Chrea:ens safet~ of other employees mag be r~m~eW ~pezm~nentlg. I: is, however, in m~ view incumbent upon the com~anW to ~nsCra=e that the insubordina:e or violent conduct of the e~plo~ee was such as to make it im~r°bable thaC he would be able :o func~./on effece,/v~Iw in the plant again. Discharge is a harsh penaltw, and should be utilized onlw sparingly, it should be used onl~ where iC is clear fha: no' ocher method of di$~ipiine will be of an~ avail: Numerous Cases ~n the priva~ se¢%0r have he%d tha~) absen~ ~ovocatton. an assau]~ by an employee on a supervisor ~ustif~es dj:charge: ..,Ca]d_we3l L~nen Mills Ltd. (]960), 10 ['.A.C. 356 {little) (where an employee ~hmea~ened h~S supe~vt.so~ with a knife); Dominion Steel & Coal Co~p. Ltd. .(1962), 12 L.A.C. 336 (Thomas) (where an employee used insolent language and threatened his foreman); Public Utilities C~'m. Sandwich East {1962), 13 L.A.C. 18 (Lane) (where abusive language and assault occurred); Link-Belt Ltd._.z.. (1968). 19 L.A.C. 273 (Weatherill} (where the employee used obscene language and fought with his supervisor); .Co_nsumers Glass Co, Ltd. (lg70), 21 L.A.C. 7B (Brown) (involving insubordination ~nd an assault). - 32 - However, certain boards of arbitration have not treated assaults on supervisors as necessarily justifying discharge, particularly where there has been found to be evidence of provocation or other mitigating circumStances: Galco Food Products Ltd. (1974), 7 L.A.C. (Beattyi; Canadian Carborundum_{1973), 5 L.A.C. (2d) 29 (Arthurs); Dominion-Glass Co. {1976), .ll L.A.C. (2d) 84 {Linden). -- In this case there was quite clearly provocation and provocation which, because of its racial nature, was extremely offensive to the grievor and needs to be clearly condemned. It is not the direct function of this Board to sit in judgment of the quality of conduct of supervisory personnel since they do not co~,e within the scope of the collective agreement. However, it is impossible to judge the grievor's conduct independently of Mr. 14etherington's. We are forced to conclude that in ~m mm~ m' '& r 'm both his mimicking of the grievor's manner of speaking and his referring to the grievor as a "black bastard", Mr. Hetherington fell far short' of M ~: r m ": ~:lm:~ ' m ~ t can be expected of an experienced supervisor in 'the MinistrY and that he provoked the altercation. Therefore, we are forced to allocate at least a portion of ~he blame for the incident to Mr. Hetherington, He must be taken as knowing that taunting an employee, 'particularly on racial grounds, is absolutely unacceptable behaviour and likely to lead to serious consequences. At the same time, however, as was stated above, the grievor's behaviour was equally unacceptable. No matter how great the verbal provocation in the workplace, it can never justify a violent response whether directed at a fellow worker or a supervisor. Everyone must be able to work free of the fear of physical attack by another employee; the absence of ISUCh security must ~nevttabty l~ad to a to.ta.lly unacc~pl~able working environment, one which should be utterly foreign to'the Ontario Public service and one which would substantially erode any attempts to A number of factors other than the provocation influence our judgment as to the appropriateness of discharlge as the penalty in this case. First, this was an isolated, unP~emedt{~ted incident of violence; the grtevor has no record of violence in the ~orkplace or elsewhere and ,has no criminal record. Second, no weapons were used in the incident. ?hird, the grievor clearly regretted his behaviour;.~he did not attempt to hide from what he had done, he realized immediately that he was in the wrong, he wished "'he had not done it and at the hearingJhe apologized for his actions. Fourth, both the grievor and Mr. Hetherington testified that there is "no bad blood" between them and neither feels any "personal animosity". Fifth, Mr' Hether- ington testified that he could have the grievor back working in the garage without fear of another attack. At the same time, howe~er, he testified that it would be "against his principles" to ih'ave to work with a man who had -injured his supervisor. On the other hand, the gr(evor had worked with the Ministry for only four year~ by the date of the incident. During this time his record disclosed no very serious disciplinary incidents. However', at the same time, his record-is not free from blemish since he received three unsatisfactory~ attendance reports and displayed something less th~n fulll enthusiasm for his job {see Exhibit lO). However, in the period inmmdtately prior to the incident there appeared to be some improvement in his performance. In assessing the approprtatenesslof the penalty, the Boar~' has also Considered a large number of arbitral awa'~S'~ both.the public and private sectors. While the severity of the penalties in these cases shows some variance, there is a uniform conclusion that violence in the workplace must be condemned and that very significant penalties are warrante~. Anything less than a very substantial penalty may be insufficient to indicate the severity of the'offence and to deter other potential offenders, While we recognize that the length of the suspensions imposed in the private sector to some extent reflect the delays inherent in that system of arbitration, they never- Considering and welighing all of the factual ~atters discussed above and viewing these facts in light of our statutory mandate and previous arbitral awards we have concluded that the penalty of discharge is excessive in the circumstances. We have concluded that the grievor should be reinstated i~lnedlately. Furthermore, we order that the grievor should repeat his apology to Mr. Hetherington in v~rtti~g prior io returning to work and file a copy of this apology with the Board. While the Board has no authority to require it, we express our hope that a similar apology will-be for~hc.oming from Mr. Hetherington to the grievor. In conclusion, the preliminary objection to the Board's hearing this grievance is dismissed. Further, on the merits of the grievance, the grievance is allowed to the extent that the penalty of dismissal is vacated i. and the grievor is reinstated immediately. The parties are directed to meet forthwith with a view to agreeing on the amount of compensation, if any, which should be paid to the grievor for having been tmp'roperly discharged. If the parties are unable to agree on the amount of compensation, a further hearing will be directed, at %he request of either party, to deal with the . issue of compensation and we specifically retain jurisdiction for this We wish to Close by thanking both counsel for their assistance and patience in this difficult case, We regret that the award ha.s been sub- stantially delayed and hope the parties have not been unduly inconvenienced. Dated at Toronto this 9th day of April, 1979. J.R.S. Prichard Vice-Chairman I' concur G. Peckham Member D. Anderson N~ber OnlariO , .. ~ .. 54/78 CROWN'EMPLOYEES 416/598 .06'88. ~ "'Suite 2200 ~'RIEVANCE SETTLEMENT 180 Dundas Street West ' TORONTO, OntarSo BOA~ ' ~ ~" MSG lZ8 .,' ,mlN-mTHE, ~TTER OF ARB.IT~TtON_ Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT ..: THE GRIEVANCE SETTLEMENT BOARD Between: '-~' Mr'. "C. D. Ma~cdt~e'- (The Grievor) ' ' -" · '-' -"~:':' 'And ¢~he'~ro~'in Right of Ontari6 - Ministry of Correctional Services ': "~ " (The .Employer) Befog: Professor George W. Adams - Chairman -' ' :': Mt~ V. P; Harris - Member -- ' ' ' -Mr. Dan Anderson - Member m m ' ForJ'the Griegor "--, m ' ' : :~ - Mrt. George Richards ' .-" - Ontario Public Service Employees Union 1901 Yonge S~reet. ' " " Toront6~ Ontario FOr the Employer - '- -- ' ~"'~Mr. J '~Benedfct Personnel BKanch · ' · · ' :"- MiniStry of correctional services " 2001' Eg) intOn Ave. East ' '"Scarborough, ~ntario Mi L 4P1 :' · Hear'ing : 'Suit'e 2100,~180'Dundas St. West Toronto, Ontario March 23rd, 1978 -2- In this case the ?ievor, ~,r. Marcotte, grieves that he worked three and one-half (3½) hours over his regular shift on Dec- ember 28, i977 and was paid three (3) hours at straight time and one-half hour of overtime. He requests time and one-half (overtime) for all hours worked over and above his eight hour shift, in accord- ance with Article 13.2 of the collective agreement. Article 13.2 provides: In this Article, "ovettime" means an authorized period of work calculated to the nearest half hour and performed on a scheduled working day in addition to the regular working period, or performed on a scheduled day(s) off. On the other hand the employer takes the position that the grievor was properly paid having regard to both Article 13.2 and Art- icle 23. Article 23 provides: Article 23 - TIME CREDITS WHILE TRAVELLING 23.1 Employees shall be credited with all time spent in travelling outside of working hours when authorized by the Ministry. 23.2 When travel is by public carrier, time will be credited from one (1) hour before the scheduled time of departure of the carrier until one (i) hour after the actual arrival of the carrier at the destination. 23.3 when travel is by automobile and the employee travels directly from his home or place of em- ployment, time will be credited from the assigned hour of departure ~ultil he reaches his destination and from the assigned hour of departure from the'destination until he reaches his home or place of employment. 23.4 When sleeping accommodation is provided, the hours between eleven (l!:O0)p.m. and the regu- lar starting time of the employee shall not be credited. 23.5 When an employee is required to travel on his regular day off or a holiday listed in Article 9 of the Employee Benefits Agreement, he shall be credited with a minimum of four (4) hours. 23.6 Ail travelling time shai2 be paid at the employee's basic hourlg rate or where mutualI9 agreed, by compensa ting leave. -3- · The facts giving rise te thi,s grievance ane not in.'di, spute. The grievor is employed as correctional' officer a~ the:Sudb:ry jail. Hi~ primary job duties pertain to the safetY and custody of inmates. Occasio'nally 'he' is given the responsibilitY'of transferring prisoners ]; ..' Ci'. from one 'institution to another. This is usually carried out by the "Provinci'al Bailiffs" Office" but from time to time correctional officers, 'li~h~-grievor, ~dertake the t~s~. The Sudbury jail has'a sixteen passenger vehicle or van an~ ~0 c'o~rectio~al officers a~e.used to carry out~'inmate transfer,~ One.officer drives the vehi.cle and one officer ~-~accompanies ~as an escort. The:'gri~vor has'~a, cla~s~"C" driver's license. , Prior .to January 31; 1978 .only a: '"chau~fedr"s,q:icense was required to drive the vehicle] but now.~an-"~""~c~ass' driver's, licens'e or bett~r is required ' The previous "ope~ator"~' t~ cerise is now ~a "~G'' class 1 icense. The, Board was advised'that as a'result'of~these'changes in driving -license restrictions, only~s~x 's'taff'at'the Sudbur~'ja'il are now quali- £ied to drive the vehicle, in.q~estion',.~However~this~ ~as not the case at the time the. g~iev, ance arose.~. On December 28,.1977 the grievor reported to work at 7:00 a.m, At 10:00 a.m. he was asked to transfer a number of inmates to another .institution located in North'Bay He. was,assigned the responsibility of driving theJehicte and another offi~ce~ accompanied'him as an escort, · They.left Sudbury at appnoximate~y l':DO:pYm,'and arrived in North Bay 'at. approximately 3:00 p,m. By 3:3D~p.m.'respo6sibility'for-the prisoners had been, t~ansferred to offici,~ls in North Bay,. Yhe. two cocrectional officers then returned.to Sudbury, ~rivi~g there ~t,~pro×imatel~ 6:Q~ p.m, On his arrival the grievor had to complete the "vehicle log" recording the mileage -4 travelled and any purchases with respect to the trip. He'then turned over a credit card and vehicle keys to the control office and signed out at 6:30 p.m. He was paid at straight time for the hours between 7:00 a.m. and 3:00 p.m.; one-half hour of overtim~ from 3:00 p.m. to 3:30 p.m., for the time outside his regular work hours during which he was in custody of the prisoners; and straight time for the hour~ between 3:30 p.m. to 6:30 p.m., spent in returning to Sudbury. The trade union takes the position that, unlike the escort, the grievor's job duties on December 28th included both the custody of the prisoners and responsibility for the driving and custody of the vehicle. Thus, while the escort's job duties ceased at 3:30 p.m. when responsibility for the prisoners was transferred to North Bay officials, the grievor's job duties relating to the driving of and care for the vehicle continued. It was therefore the trade union's submission that the grievor's "working hours" had not terminated until 6:30 p.m. when the vehicle was returned to the Sudbury jail and the grievor had signed out. And accordingly, Art- icle 23, the travelling time provision, did not apply to him, although it did apply to the escort after 3:30 p.m. On the other hand the employer argues that the grievor's primary job duties center on the care and control of prisoners. In its view the driving duties were merely incidental to the grievor's core function on December 28, 1977 and when the prisoners were transferred at 3:30 p.m. the es- cort and the grievor were no longer performing any duties in the capacity of correctional officers but were merely travelling back to Sudbury. Indeed -5- it was. submitted that the use of Tthe employer's vehicle was a convenience to the. employees in .that the employer asserts-it is under no obligation to shoulder the expense of p~bl~'c transportation for them. DECISION ~ Tennesse Coal,''Iron & 'Railroad 'Co.-v..Muscoda Local No, I23~6t'' al (1943) 135 ~. ~d, 320 (C.A, ,5th Cir.)l.a ..Question arose as to wh~% donstitsted.working tin~ wi%hin the United StateS'Fair Labor Standards ,Act~ kt th'at timerlsection 7' of the Act required every employer to pay 6v~rtime wages to ]any employee that wars engageJ in commerce or in the prod- uct'iOn of goods' f6rr commerce for a-work week longer than 44 or 42 hours (a reduction in' hours was phased in oveFtime). The precise question for ~determination was whether the employees were entitled under therACt tO h~ve'"included'in the'computation"l°f their work-week' the time consumed each Week in-{ravelling'from the portal of'the mine' to their regular working .Eplaces,-'ind in..r~tur6in~ 'therefr6m to t~e"portal at the end of the shift, p%.us'the~-aggregat~ of t~eI ti~ consumed each week ~ such empioyees in cheating'in and'out~%d obtaining and returning lamps, carbiUe, and tools on the surface. "- LI6-affirmihg'the t~ial cou~t's decisiont~at such time should ~be included the ~ourt'~mphasized-the conditions under which such "travellin~":Occ6rred. In this res'~ectI it noted: At the beginning of the shift the underground employees were.required., to report at the portal of the mine at a spscified tim~, there to deposit their identification check at the ,tally office and to board the conveyance provided by the company for transportation to a man- unloading stat'ion inside the mine. The men rode in skips or ore cars,.which were usually coated with grime of the mine, and assumed a crouched position to minimize the hazard of hitting t~eir skulls against the low tunnel ceiling. Upon reaching the underground station the men left the skip and walked the remaining distance to their -6- respective wcrking places. They were obliged to exercise caution at ali times to avoid contact with uninsulated electric ~'ires and other hazards, and carried several pounds of equipment to be used in their work during the day. The men frequently were given instructions as to when and ho~, they should perform their respective duties before the skips left the portal of the m~ne, and at all times during the descent they were subject to company rules and under co~any con~oI. The return to the portal at the end of the short'was accomplished in the same panner and under the same conditions. After considering these and other facts of a similar nature, the court below found as a fact that all of the time thus consumed was work-time and should' have been included in the computation of the employees' work-week. Since this travel-time was spent on the employer's premises and subject to its directions, since it exacted mental and physical exertion from the employees under conditions both hazardous and unhealth- ful, and since it was a course of action pursued solely as a necessary incident to the prosecution of the emp- loyer's business, we are unable to' say that this finding of the court below was clearly ,erroneous. Considering the facts before us in the light of this holding, it should first be observed that the grievor is not being denied any payment in respect to travelling back to Sudb~ry. He was paid at straight time. Moreover the overtime provisions of %he Ontario Emplo~men~ Standards xot do not apply to employees of the Crown (See BmBIo~me~t Stan~ar~s ~ct, S.O. 1974, o.112, S.2(1)) and thus the question does not arise whether Article 23 is contrary to that statute's provisions as it did in Canadian Nat~onaI Teleco~un%cations and Canadian Telecoa~.unications D~vision, C.B.R.T., January 5, 1978 (Adams) where it was held that a travel time provision requiring straight time pay for travel on a holi- day was contrary to the holiday pay provisions of the C~nada nabour Code. Rather in this case the employer relies upon the distinction in the collective agreement made between "working hours" and "time spent travelling,'' While both may amoun{ to work within the ~ennes~e ~oa]' rationale the'parties here have' specifically agreed to t~eat them separately for t~.'~urposes of pay, Thus the question before t~e Board is w~ether, Mr. Marc~tt~ wa~ at work' within the meaning of Article' 13~2 whil~ driving {he veh~cle ba~k t6 Sudbury or whether he was travelling outside of his working hours within the meaning of cle 23: ...... .... In-this regard.we might-]ook at Boucher and The Treasury Board, ..'(~ubl.ic Ser,~i:ce Staff Relations Board, 166-2-230) where the grievor was ag~igned the task-of detiye~ing and explaining.various forms and other mate~,al.s to Unemp}oyment ~nsurance Commission agents located in a number of ~ew~B~unswick localities some distance from his ordinary place of work (Bathurst). In .holding'that the grievor's late return to Bathurst w~s..authorized overtimework the adjudicato~ rejected the employer's ~u~.~sion that "t~a.vel'!.,and ~wo~kii_unde~ the collective agreement were not, the same-be~a-us6 thj. lpa~ti6s h~j 6~de a.distinction between them when .... In so holOing the adjudicator appears to ,hav~ stress6d the fact that.~the travelling in the case before him was in~grall~'~ela~e~'~O {he 'emp.loy~'s ot~er, job duties, In this regard he . · This .grievance does~not-concern activ~t~ on a day of ,. ~ rest .but rathpr the performa$ce..of an assigned task on an ordinary scheduled work day, that.task requiring movement from the normal place of work to various loca- tions and, necessarily, a return to that normal, place -' -; .... qf work. .In the~circumstanc~s of this case, the task assigned involved movement, delivery of forms,'.and '.', ,' , explanation.of~those'forms, It~is unrealistic to sever one part of t~is task, the travel, from the others and · : ' to .treat .it as ."non,work" while:the others constitute "work" . -8- Indeed the decision was distinguished o~, t~,is basis by Arbitrator ~'eath~rill in Canadian l~ational Railwa~ Companu._and ~rotherhood cf Railwa?, Airline and Steamship Clerks, Fre'_'~ht Handlers, Express and Station Em~pioyees, November 11, 1975. I~l that case the griever was assigned away from his headquarters and travelled as a passenger in a company vehicle driven by another employee. A portion of the travel time fell within the griever's normal working hours, but some five and one-half hours of travel time was after his regular hours. He was paid at straight time un~er a travel time provision in the agreement and the griever grieved for compensation at overtime rates. In holding that the employee was properly paid at straight time under the travel time provision, the Boucher decision and other travel situations in which the employer had paid premium pay were distinguished in the fel- l owing way. It woul8 a~pear that the company has paid for travel time in excess of normal working hours at the premium rate in certain circumstances. These would certainly have to include the case where an employee is, while en route from one location to another, carrying out the duties of his classification. In such a case, he would no doubt have to be considered as "at work" in every sense of the term. An example of such a case maF be seen in Boucher and Treasur? Board, (P.S.S.R.B. 166-2-230). In fact, this company has paid employees at the premium. rate where the conditions of travel have been such as to make it appropriate to consider travel time as time "at work" in the fullest sense. Thus, such payment has been made - and rightly, in my view - in cases where employees travel in the back of an open truck. Payment at premium rates in such cases does not involve any implications fo~ cases such as the instant case. Thus in cases of the kind before us now the Board must deter- mine whether the travel-related activity of the employee is, having regard to all of the circumstances, a continuing aspect of the employee's - 9 job duties and ~hus. amounting to an "authorized period of work m in arddition to the regular working period" under Article 13.2 or whether it is more.~p, ropriately characterized as travel which is essentially free of job duty responsiblity and so properly paid for ..at straight tim~'ra~es under Article 23, Applying this test to the fact ~situa~ion at hand we are of the opinion, and we so find, that the grievor was "at work" while driving the sixteen passenger vehicle from North Bay to Sudbury. Driving this particular vehicle cannot be characterized as essentially a responsibility-free activity, This '~ was not a vehiclel, provided to the employee to effect all of his travel requirements the way a "company car!' might be, This vehicle was not an ordinary passenger car and it, together with a credit card, had to be returned to the employer with the appropriate documentation completed. Moreover it was the grievor's responsibility to transport a fellow employee baCk to Sudbury. In these circumstances we do not think the situation can .be analogized to the gratuitious provision i~ by the' employer of transportation to the grievor back to Sudbury. Rather, the Sudbury jail was getting its sixteen passenger vehicle back,, possibly, for use by others, and it was receiving the vehicle back in the.same condition it'was in when entrusted, to the grievor's custody. For all of these reasons, the grievance succeeds and the employer is directed to compensate the grievor as requested. Jurisdiction is retained to resolve all differences with respect to the specific compensation if need be.. -10- Dated at Toronto this 27th da>, of April ~978. I G. W. A6ams Chairm~ %'. P. Harris Nember Dan Anderson Member