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HomeMy WebLinkAbout1988-0384.Viegas.88-12-05 ON TARIO EMP[Q YES DE LA COURONNE CROWN EMPLOYEES DE ~.'ONTARIO GRIEVANCE CQMMiSSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS lBO DUNOAS STREET WE~T'. TORONTO. ONTARIO. M5G '; Z8 - SUITE 2100 TELEP~ONE/TEL~'PHONE ~'80. RUE DUNDAS OUEST. TORONTO. (ONTARIOJ MSG ! 7.8 - BUREAU 2100 (416) 598.0688 38a/88 4, at~/88 tN THE MATTER OF AN ARBITRATION .. Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT · - , ..-.~ THE GRIEVANCE SETTLEMENT BOARD .- Between: OPSEU (C. Viegas) Griever - and - The Crown in Right of Ont'ario (Ministry of Health) Employer ---Before: J. H. Devtxi~. Vice-Chairperson , I. Thomson Member G. Milley Member For the Griever: C.H. Dass.ios Counsel Cowling & Henderson Barriscers& Solicitors For the Employer: C. Polan Counsel S:aff Relations Branch Human Resources Secretariat MANAGER ._ Management Board of Cabinet HEARINGS: October 3, 1988 OEC t ;;; "" ' ' 0ccober 17, t988 STAFF RELAT)ON~ AND COMPENSATION In the grievance which was filed by Cecilia Viegas in February of 1988, the Grievor seeks to rescind a written resig~nation which she submitted to the Ministry in August of 1982. At that time, the GrievQr was employed as a Group Enrollment Clerk with the Ontario Health Insurance Plan ("OHIP") and had been declared surplus as a result of the relocation of the head office of OHIP to Kingston.' Beginning in the fall of 1982, it was anticipated that there would no longer be work available in Toronto and employees, such as the Grievor, who were unwilling to relocate in Kingston, were entitled to the ben~ of Articie 24 of the Collective Agreement which provided for the assignment of surplus employees to vacancies within the same or another Ministry. -~ ...... At the outset'~.~the hearing, Mr. Polan, who appeared on behalf of the Ministry, raised an objection to the grievance on the ground of timeliness. It was the position of Mr. Polan that in light of a delay of approximate!y six years in the filing of the grievance, the Ministry would be severely prejudiced if it were required to respond to the grievance at this time. Mr. Polan agreed, however, that it would be appropriate for the Board to hear evidence in respect of both the preliminary objection and the merits and to reserve its decision on the objection. The circumstances giving rise to the grievance are.as follows:' during the last week of July, 1982, the Grievor began a scheduled vacation of three weeks. At the outset of her vacatfon, the Grfevor went in search of alternate employment as she was concerned that she might not be successful in Obtaining a position with the Ministry as a result of the aDplication of Article 24 of the Collective Agreement. During a visit to the Unemployment Office, the Grievor completed an application for a temporary position with the Federal Government and the Grievor testified that she understood that if she was interested, she gould report for work on August 16, 1982. On August t0, 1982, the Grievor's mother was taken s~riously ill and was rushed to Hospital where the Grievor remained with her throughout the night. On ~the morning of August ~1, the Grieuor returned h~me at approximately 8:00 a.m..and was extremely tired and upset as her mother was not expected to live. The Grievor testified tha~ s~ortly after arriving home, she received a call from Ken Decker, an Employment Counsellor w~th the Kingston Relocation Unit, who advised her that an interview had been arranged for her the following day for.a position at the Do~ Jail. The Grieu0r understood from her fellow emDloyees that conditions at the jail were very poor and she testified that she requested that the interview be postponed. Although Mr. Decker had no indeDendent recollection of a conversation with the Grieuor on the morning of August ~982, he 'was responsible for assisting employees of OHIP who were unwilling to relocate in Kingston and he testified that he could have contacted the Grievor to advise her of an ~nterview for a The Grievor testified that following her conversation with Mr. Decker on the morning of August llth, she went to work where she spoke with Dan Nearing, the Supervisor of the Group Enrollment Department. Accordi'hg to the Grievor, she advised Mr. Nearing that she had been scheduled for an interview at the Don Jail and that she was resigning her employment. The Grievor testified that Mr. Nearing then dictated a letter of resignation which she signed. The letter was dated August 3, 1982 in order' to provide the Mihistry with two weeks'notice as .the resign~.ti9~l' was to be effective on Friday, August 13~ 1982. The letter was to the following effect: "August 3, I982 Mr. D. Nearing Supervisor .~ Rec'd Aug 12th -"' Group Enrolment D Nearing' OHIP 70verlea Blvd Toronto Dear Mr. Nearing This"is to inform you that whilst I was on vacation I applied for and got a job with the Federal Government start£ng Monday August 16, 1982. I would therefore like you to accept this letter as official notice of my resignation as - of Friday 13 1982. -. Thanking you in anticipa.tion I remain Yours sincerely Cecilia Viegas" in response to the evidence of the Grievo_ Nearing testified that resignations were a common occurrence in the summer of 1982 and that he simply had no recollection of the circumstances surrounding the resignation of Mrs. Viegas. Mr. Nearing also explained that he retired from the Ministry in March of 1983 and that he has since suffered a stroke which has affected his memory to some extent. Mr. Nearing could offer the Board no further assistance although he testified that' the notation "Rec'd Aug 12th D. Nearing" on the letter of resignation indicated to him that he received the letter on August I2th, rather than on August llth as suggeste'~ by the Grievor. The Grievor~'-testified~i'~hat' after submitting her resignation to the Ministry, she went home and slept and when she awoke, she realized that Sh~e~had acted out of panic at a time when she. was tired and upset. As a result, the following morning, or in other, words, on August 12th, the Grievor testified that she went to the Personnel Office where she spoke with Joan Lanelle, the Supervisor, Personnel Records. According to. the Gr£evor, Ms. Lanelle advised her that it was too late to rescind her resignation as the necessary paper work had already been forwarded to the Payroll Department. Like Mr. Decker and Mr. Nearing, Ms. Lanelte testified that she had no particular recollection of the events surrounding the Grievor's resignation although she did have a note which she had made of a telephone call from the Grievor on August 19, t982 during which the Grievor sought to rescind her resignation. Ms. Lanelle testified that had she had any earlier contact with the Grievor, she would have recorded it. At the §ame time, Ms. Lanelle conceded that there was the possibility that she had spoken wiEh the Grievor prior to August I9th and did not· record the conversation as it involved no more than a routine inquiry. Had the Grievor made an official request to rescind her resignation, Ms. Lanelle testified that she would have referred her to- a Personnel Of'ficer. -. '~%-'' · - At the suggestion of Ms. Lane~le, the Grievor wrote to the Ministry in Augast of 19~.8..~.for~ally requesting that her resignation be rescinded and, in addition, she contacted her Union representative, Vio.iet Betts. The Grievor testified that she was advised by Ms. Betts to contact her local Member of Parliament who at that time was Dennis Timbrel!. The Grievor s~)oke with Mr. Timbrell who contacted the Ministry in an effort to assist her. The Ministry then undertook an investigation of the matter which revealed that the Grievor had tendered her resignation from the Ministry on August 12, 1982 and did not seek to withdraw the resignation until August 18th or 19th. By that time, the Grievor had begun work for the Federal Government. In "the circumstances, the Ministry advised the Grievor that it could not accede to her request and, in addition, pointed out that the Public Service Act allows for the withdrawal of a resignation only with the aDDroval of the Deputy Minister and prior to the effective date of the ~esignation. The Grievor's employment with the Federal Government lasted for approximately three months following which she obtained a positioa with Go Temp. Thereafter, the Grievor worked on a contract basis wi~h the Ministry. The Grievor ~estified that it was not until February of 1988, when she spoke with the Union representative in coanection with the filing of another grievance, that she learned that she could grieve the Ministry's refusal to rescind her resignation. The Grievor then acted promptly in filing the grievance before the Board. In respect of the pre,timinary objection, it was .the submission of Mr. Polan that the evidence makes £t c~ea~ that the Miaistry has been prejudiced by thg-~p~assage of approximately six years between the events in question and the filing of Mrs. Viegas' grievance. In thes'e circumstances, Mr. Polan requested that we dismiss the grievance on the ground of delay. Mr. Dassios, who appeared on behalf of the Union, conceded that the Ministry suffered some prejudice as a number of witnesses had difficulty recollecting precisely what had occurred; nevertheless, Mr.' Dassios submitted that this must be balanced against the right,which the Grievor seeks to protect. Given that this case involves the loss of the Grievor's employment, - Dassios contended that we ought to entertain Mrs. Viegas' ~'grievance on its merits. ~n the grfevance before the 8nard, Mrs. Viegas takes issue with the Min'istry's ~efusal to allow he~ to withdraw a written resignation which she submitted in August of 1982. To ' this extent, the Grievo~ is claiming that the Ministry brought an end to her employment, or in other words, that the ~inistry dismissed her without just cause. Where an employee is advancing such a claim, the Collective Agreement 9roy[des for the filing of a grievance within twenty days of the date of d~smissal. As Mrs. Viegas filed her grievance in February of I988, there is no dispute that she failed to comp.ly with the time limits set out in .the Collective Agreement. At the same time., Section 18(2) of the Crown Employees Collective Barga-~ning ACt provides that, in add~'tion to amy other rights of grievance contained in the Collective Agreement, an employee claiming that he has been dismissed without just cause may process a grievance in accordance wtth the procedure set out' in the Collective Agreement and failing resolution under that procedure, the matter may be referred to arbitration before the Grievance Settlement Board. in Kee!inq and The Crown in Right of Ontario (Ministry of Trans.oortation and --Communications), G.S.B. File ~45/78, t'he Board held that the '~tatu~ory right to grieve caonot be limited by the re_--ms of the Collective Agreement. ACcess tO arbitration, therefore, cannot be barred by an employee's failure to comply with the time ~[mits for filing a grievance as set out in the Collective Agreement. The conclusion ~eached in Keelin~ was followed by the Board Woods and the Crown in Right of Ontario (Ministry of Transportation & Communications), G.S.8. File ~224/79 and in clements and the Crown in Right of ontario (Liquor Control Board of Ontario), G.S.B. File ~112/80 and was not challenged before the Board in this case. In Keelin~, however, as well as in the other awards referred to, it was recognized that an employee does not' have an unlimited right to grieve his dismissal and that the Board may still dismiss a grievance b~cause of undue delay. In ithis case, the delay involved a period of five and one-half years and the Ministry contends ~t this h.~' caused sufficient prejudice to justify the dismissal .of Mrs. Viegas' grievance. In addressing this matter, cJ~Slideration must be given to the nature of the grievance before the Board. Where, as here, the issue concerns whether, in fact, the Grievor resigned her employment, it is necessary to ascertain whether the employee expressed a subjective intention to resign and whether this was coupled with any objective conduct which might be said to confirm that intention. In this case, -there is no suggestion that the Ministry coerced the Grievor into %endering her resignation but the Grievor says that she submitted the resignation when she was in an agitated state and that it did not reflect an intention to sever the emp!oymemt relatioaship. In these circumstances, the actions and e×pressio~s of the Grievo~ at the time she subm_itt~d her resignation are particu%arly important as is-the time when the events in question took place. The Ministry, however, is at a distinct disadvantage in terms of its ability to lead evidence 'addressing the matters in issue. For the most part, the witnesses for the Ministry now have no independent ~ecoltection of the circumstances surround the Grievor's resignation. This is not'altogether surprising given the passage of five and one-half years prior to the filing of the grievance. Moreover, during this time, Mr. Nearing, who would'undoubtedly otherwise hav~ ~en a key witness for the Ministry, suffered a 'str0ke which has affected his memory. The events of August, 1982 were evidently of vital significance to theL.G'rievor but it is not clear that they had the same significance for members of management. In G~levo~ wis addition, while the Ministry was aware that the '' ~ bed to withdraw her resignation in 1982, prior to .the filing of the present grievance in February of 1988, there is nothing to indicate that the Ministry was aware that the Grievor intended to G~.evo_ pursue her claim. The issue was not simply whether the -~ ~ is able to present her case, but whether a fair hearing can be ~conduct'ed. In our view, it cannot, as the Ministry has been '~ubstantially prejudiced by the delay in the filisg of Mrs. Viegas' grievance. In these circumstances, it is not appropriate for the Board to inquire any ,further into the grievance Which is hereby dismissed because of undue delay. DATED at Toronto this 5th day of December, , 198B. J.H. Devlin, Vice-Chairperson ... Member G: Miliey, Member --