Loading...
HomeMy WebLinkAbout1988-0717.Waiwright.89-05-16 CROWN EMPLOYEES DE L 'ON TA,qtO ~' GRIEVANCE C,OMMISSION DE SETILEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO. ONT,4R/O. MSG ~'Z8- SU;TE 2100 TELEPHONE/TEt..~7~HONE 180. RUE DUNDAS OUEST. TORONTO, (ONTARIO)MSG 1Z8- BUREAU2100 (416j 598.0~88 August 1, 1989 MB-MO RANDUM RE: 717/88 OPSEU (Wainwright et al) and~The Crown in Right of Ontario (Ministry of Correctional Services) Attached hereto for your information is a copy of a Notice of Application for Judicial Review, filed by Mr. Jim Benedict on - behalf of the Ministry together with a copy of the Board's decision in the above-noted matter. ~,...." Joan ShirleW~ Registrar ~S/ts Encl. · ' SUPREME COURT OF ONTARIO (Divisional Court) BETWEEN: i ONTARIo PUBLIC SERVICE EMPLOYEES UNION (Wainwright et al) i ~", Applicant · c ~ HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as .represented by the MINISTRY OF CORRECTIONAL SERVICES and the ONTARIO PUBLIC SERVICE GRIEVANCE SETTLEMENT BOARD ''~_~/ 'Respondents APPLICATION UNDER the Judicial Review Procedure Act, R.S.O. 1980, c. 224 NOTICE OF APPLICATION FOR JUDICIAL REVIEW TO THE RESPONDENTS A LEGAL PROCEEDING HAS BEEN COMMENCED by the Applicant. The Claim made by the applicant appears on page 3. THIS APPLICATION for judicial review will come on for a hearing before the Divisional Court on a date and a place to be fixed by the Registrar of the Divisional Court. The applicant requests %hat this .application be heard at 130 Queen Street West, Toronto, Ontario. IF YOU WISH TO OPPOSE THIS APPLICATION, you or an Ontario lawyer acting for you must forthwith prepare a notice of appearance in Form 38C prescribed by the Rules of Civil Procedure, serve it on the applicant's lawyer or, where the applicant does not have a lawyer, serve it on.the applicant, and file it, with proof of service, in the office of the Divisional Court, and you and your lawyer must appear at the hearing. IF YOU WISH TO PRESENT AFFIDAVIT OR OTHER DOCUMENTARY EVIDENCE TO THE COURT OR TO EXAMINE OR CROSS°EXAMiNE WITNESSES ON THE APPLICATION, you or your lawyer must, in addition to serving your notice of appearance, serve a copy of the evidence on the applicant's lawyer or where the applicant does not have a lawyer, serve it on the applicant, and file it, with proof of service, in the office of the Divisional Court within thirty days after service on you of the applicant's application record, or not later than 2 p.m. on the day before the hearing, whichever is ~ 2 - earlier. IF YOU FAIL TO APPEAR AT THE HEARING, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. Date: Divis£onal Cour~ office Osgoode Hall 130 Queen Street West Toronto, Ontario MSH 2N5 TO= The Ministry of the Attorney General Crown Law Office - Civil ?20 Bay Street Sth floor Toronto, Ontario MSG 2K1 At=n=Mr Dennis w Brown, (4Z6} 326 4156 Solicitors for the Respondent AND TO: The Ontario Public Service'Grievance Settlement Board 180.'Dundas Street West Suite 2100 Toronto, Ontario MSG 1Z8 Attn: Ms Joan Shirlow (416) 598 0688 AND TO: The Registrar of this Honourable Cou~ - 3 - APPLICATION 1. The Applicant makes application for an order quashing the decision of the Ontario Public Service Grievance Settlement Board dated the 16th day of May, 1989 with respect to the grievances of Wainwright et al. 2. The grounds of the application are: (i) the Board erred in declining to exercise its jurisdiction to .determine the merits of the grievances as required by S.19(1) of t~e Crown ~n%ployees ~rg~inina Act; (ii) the Board erred in law in its interpretation of article 27.4 of the Collective Agreement between the Management Board of Cabinet by finding that the said article is triggered by the receipt of an application for 'the hearing of a grievance by the Ontario Public Service Grievance Settlement Board instead of the act 'of making application for such a hearing; (iii)such further other grounds as counsel may advise and this Honourable Court may permit. 3. The following documentary evidence will be used at the hearing of this application: (i) the Record of the ProCeedings before the Ontario Public Service Grievance Settlement Board; (ii) the Application Record; and (iii)such further and other material as counsel may advise and this Honourable Court may permit. Gowling, Strathy &'~enderson 2 First Canadian Place Suite 2400 Toronto, Ontario MSX 1A4 Per: Alick~Ryder, Q.C. David Wright (416) 862 8484 Counsels for the Applicant C,~OWN EMPLOYEES DE L'ON~A~O , ~ 'GRIEVANCE CgMMISSION DE ii S~LEMENT REGLEMENT ' BOARD ' DES GRIEFS ,, 180 DUNDAS STREET WEST. ?ORONTO, ONT,:RtO MSG ~Ze. ~UiTE 2~ TELEPNON~/T~L~P~ON~ 180~ RUE D~NOA~ OUEST, TORONTO, (ON?ARIO~ MSG ~ Z8 - BUR~U 2~ (4 ~6~ 5~-0~8 ~'1'~ 7 /88 ~ ?~ MA??gR O~ AR ARB:TRA?ZON Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OP~EU (Wa~nrSGht et al) , Grlevor - and - The Crown in RiGhT of CNini$~r¥ of ~or~ect~onal Seuvice$~ Employer Before: J.D. McOamu$ .V3ce-ChaSrperson F, Collom Member A, Merritt Member For the Grievor: D. Wrioht Co~nsel 'Gow]ing & Henderson Barrlste~ & $olfc,~.tor~ For the EmploYer: J, Benedict ION 2 This proceeding involves twenty separate grievances brought by Correctional Officer II's from the Metro Toronto West Detention Centre. The allegations made in the grievances concern an alleged breach of the Zmployer's obligation under article i8.1 of the Collective Agreement to "make reasonable provisions for the safety and health of its employees during the hours of their employment". The grievors contend, for a variety of reasons, that the work environment in the Segregation unit at the Detention Centre constitutes a violation of this article in a number of ways. The Employer has raised a number of preliminary objections concerning these grievances. Those on which this Board is required to rule at the present-time relate to the question of whether or not the g~ievances have, in a variety of ways, failed to meet the time requirements for the processing of grievances set out in Article 27. ~efore turning to the specifics of these objections, it will be useful to set Out the material provisions of article 27. A~T~CL~ 27 - GRT~VANC~ PR~CEDU~ 27.1 It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the par=les arising from the interpretation, application, administration or alleged contravention of this Agreement, inclu~ing any question as to whether a matter is arbitrable. 27.2.1 A~ employee who believes he has a complaint 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 satisfactorily settled by the supervisor within seven (7) days of the discussion, it may be processed within an additional ten (10) days in the following manner: __ STAGE ONE 27.3.1 The employee' may file a grievance in writing with his supervisor. The supervisor shall give the grievor his decision in writing within seven (7) days of the submission of the grievance. STAGE TWO 27.3.2 If the grievance is not .resolved under Stag6 One, the employee may submit the grievance to the Deputy Minister or his .designee within seven, (7) days of the date that he received the decision under Stage One. In the event that no decision in writing is received in accordance with the specified time limits in Stage One, the grievor may submit the grievance, to the Deputy Minister or his designee within seven (7) days of the date that the supervisor was required to give his decision in writing in accordance with Stage One. 27.3.3 'The Deputy Minister or his designee shall hold a meeting with the employee within fifteen (15) days of the receipt of the grievance and shall give the grieVor his decision in writing within seven (7) days-of the meeting. 27.4 If the grievor ia not satisfied'with~he decision of the Deputy Minister or his designee or if he does not receive the decision within the specified time the grievor may apply tot he Grievance Settlement Board for a hearing of the grievance within fifteen (15) days of the specified time limit for~receiving the decision. GENERAL 27.13 Where & grievance is not processed within the. time 'allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdraw~. 27.15 The time limits contained in.this Article maybe extended by agreement of the par~ies ~n writing. 27.I6 The Grievance Settlement Board'shall have no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreement. The Employer argues that the Union has failed to comply with Article 27 in three different ways. First, it is alleged that 5 1988 and this is confirmed in' Mr. Ewing's logbook for the day in question. Mr. Ewing did not testify but Mr. Miller ~ndicated that he fully discussed the nature of his concerns with Ewing. Ewing, it is alleged, advised him that he was going on holiday and that when it was time to file grievances they could simply be given to any Shift Supervisor with the instruction that the grievances be forwarded to him. According to Miller, Senior As~istant Superintendent Foulds an~ 0M-15 O'Rourke were present at this meeting. Having received no reply from the Employer, Miller ihdicated that he tried to file written grievances on the midnight shift on July 21 and on through the morning of July 22. He first handed the bundle of grievancm$ to Mr. O'Rourke who a~ked Miller =o give them to the morning supervisor, inasmuch as 'O'Rourke was himself inexperienced in such matters. Accordingly, Miller approached Acting Supervisor Young on the morning shift and explained what Ewing's instrUctions to him had been. Young replied that she was not certain that she could accept them as she was merely "acting" !, and therefore suggested that he present them .to Mr. Range WiJeyesekere later in the day. Mr. Miller testified that he did thle and Mr. Wijeyesekere replied that he could not accept a grievance if there was no record of an initial discussion'with Mr. Ewing. Miller testified that he advised Wijeyesekere to O'Rourke who had been present at the meeting but' that this suggestion was not acted on. Wijeyesekere persisted in refusing to accept the grievances. Miller testified that he then said that he would move forward with the grievances to Stage Two. WiJeyesekere replied that this would be fine. Under cover of a letter dated July 26, 1988¥ Mr. Bob Whitworth, the Union's staff representative forwarded the grievances to the Deputy Minister, indicating the Union' desire to. proceed to Stage Two-of the grievance procedure. It would appear that this letter was received in theLOffice of the Deputy Minister on August 4, 1988. By letter dated August 9 (Exhibit 2) Mr. Drybrough, Regional Manager for ~he Metro Region replied to Mr. Whitwo~ch's letter and {ndicated that as a result of alleged procedural irregularities, it was the Ministry's position that the grievances were-invalid. By letter dated August 15, 1988, .Mr. Whitworth wrote again to the Deputy Minister and communicated the view that notwithstanding these objections, the Deputy Minister was still obliged to participate in a Stage Two meeting under article 27.3.3. Finally, the Director of Arbitration of the Union, Mr. Mike Pratt, by letter dated September 23, 1988 (Exhibi: 4) wrote to the Registrar of the Grievance Settlement Board asking that a hearing concerning ~hese' grievances be arranged. That letter arrived at the Grievance Settlement Board on September 27, 1988. Against this background, the Employer"$ first objection is that the Union has failed to comply with Article 27.2.1 either by failing to have a discu~sion of t~e complaint or by falling to have ~uch a discussion in the Proper sequence. With respect to the latter point, it is the EmPloyer's position =hat the discussion that is to take place under Article 27.2.1 must take place before ? the complaint is committed to writing. Grsat weight is obviously being placed by the Employer on =he language of article 27.2.1 to the effect that the employee "shall f£rst discuss" a complaint with his supervisor, and argues that this must take place before the grievance is committed to writing for the purpose of proceeding =o Stage One and the filing of a grievance.. The Employer relies on the fact that the written grievances were prepared on June 20 and 21, whereas any discussion that ~ight have ooeurre~ actually took place on July 8, 1988. With respect to~ the first branch of this first objection - the alleged failure to have a "discussion" - t~e Union's response is that such a discussion-did in fact take place and that, in any event, the requirement to have a discussion under Article 27.2.1 is merely directory and not mandatory.. Thus, failure to have a discussion would not constitute, in the Union's view, a withdrawal of the grievance. If the Union enjoys success on this latter point, of course, the entire first objection of the Employer must be dismissed on that basis. The union relies on a previous decision of the Board in Re Whiblev 940/85 (~andz) as support for the proposition that Article 27.2.1 is director%..' only and that the Union could therefore proceed directly to Stage Two without having a discussion. In Whiblev, t~e Board relied on arbitral jurisprudence that suggests that the word "shall" is not in itself en6ugh to indicate that a particular requirement is mandatory. Further, although it was of the view that a perfunctory discussion of sorts had occurred in any event, it explained its basis for holding that the requirement was merely directory in the following terms (at pages 9 - "While there is no doubt some value to discussing complaints before a formal grievance is filed, it may not always be possible. For example, when one party wishes to discuss and another does not want to do so. Since ".discussion" is quite clearly something that two parties must engage in, it would lead to absurd consequences if we were to rule. an absence of such discussion prevents a grievance from being processed further. Ail one party would have to do is discourage discussion by any of a variety of means, therefore, we find that Article 37.2.1. ~s directory." We find this reasoning persuasive. We note further that Article 27.13, reproduced above, which is often relied on for the proposition that the time limits set forth in subsequent provisions of Article 27 are mandatory applies, in its own terms, to the processing of a "gr.ievance". The' filing of a "grievance", of course,, is something that occurs after the informal discussion stage. Accordingly, we are of the view that the Employer's first objection fails on =he ground that Az~cicls 27.2.1 is merely direc%ory. Although it is therefore not necessary to rule on the g~estion of whether a disc~ssion in the rmquisite sense has taken place on these facts, we further note that the uncontradicted evidence of Mr. Miller indicates that he, a= least, had such a discussion. As far as =he other grievors are concerned, the question must be whether the discussion with Mr. Ewing on June 20, 1988 con~titute~ a waiver or a basis for an estoppel argument with respect to any right the employer might have had to a discussion With the other complainants. In our view, it would be unconscientious of the Employer to lead the Union to.believe that a particular form of discussion would be adequate for the purposes of Article 27.2.1 and then, once the Union had relied on that Undertaking by conducting the discussion Ln that fashion, take the position that 'the Article had not been complied with, Such facts.'would constitute a compelling basis for estopping the employer from contending that an adequate discussion had not taken place. Again, if we are correct in holding that Article 27.2.1 is. directory, it is unnecessary to rule on the second branch of the Employer's first objection, t~at is, that the discussion that did .occur was not in sequence inasmuch as it followed the preparation of a written grievance~ even though that' grievance had not been filed under Article 27.3.1. We note, however, that we a%so do not view this branch of the objection as well taken. It is. our view that the act that is to occur under Article 27.~.1 is ~he filing of the grievance rather than its preparation in written form. Accordingly, the fact that the document was prepared at an earlier point in time is simply i~aterial. Further, we do not see that there can be any legitimate objection to'the griever and/or Union attempting to articulate the nature of an an=i¢ipate~ grievance in writing, either for purposes of clarifying their thinking on the matter or for purposes Of expedition in the event that a decision is taken by the Union to proceed to Stage One. The Employerts second preliminary objection is that the Union is late in submitting its grievance to the Deputy Minister under A~'ticle 27.3.2. The Employer bases this objection on a reading of effect ie that the grievance must be filed with the Deputy Minis=er within fourteen days of the preparation of a 'written grievance. The la==er even= occurred, the ~mployer submits, on June 20 and 21 and the submission of the grievances =o the Deputy Minister did not occur unfil July 26. It is come, on ground between the parties that if the date which commences the running of time under Article 27.3.1 is the day of the filing of the grievance, that is July 2~, the submission of the griewance should be considered =o have been made in timely fashion. This objection can be disposed of briefly. As indicated above, it is our view that the critical event that is to occur ~nder Article 27.$.'1 is the filing of the grievance rather that the preparation of it in written form. It .follows from this that time should begin running for purposes of Article 2?.3.2 on. the date of filing, i.e. July 21st. This reading of the article .is not consistent with the lite,al interpretation of its wording. Article 27.3.1 refers to =he "submission" of grievance not to ~he preparation of At in written form. our interpretation is also consistent with the evident purpose of the Article of providing ~he supervisor an opportunity to reply to grievance. Accordingly,.we think it immaterial that the grievances are dated June 10 and ~1 and, on this basis, dismiss the second preliminary objection. The Employer's third preliminary objection is that the application made by the Union to the Grievance Board for a hearing of the grievance is also late. It is common ground between the 11 parties that the combined effect of Articles 27.3.3 and 27.4 is that an application is to Be made to the Grievance Settlement Board within 37 days of the receipt of the grievance by the. Deputy Minister. Further, it is common ground.between the parties that in the present case. the application for a ~earing was mailed, to the Grievance Settlement Board prior ~o the expiry of the 37 day period, but received by the Board one day after the expiry of 37 days. from the date of receipt of the grievance, August 4, 1988. It is also common ground between the parties that the time limit set out in article 27.4 is'mandatory and that failure to comply with it would constitute a withdrawal of the grievance. Accordingly, the narrow point on which the third objection rests is whether an application under article Z?.4 is effective upon mailing or only upon receipt by the Grievance Settlement Board. In support of the argument that an application, to be effective, must be received by the Board wi%bin the article 27.4 time limit, the Employer relies on a previous decision of the Board in ~e Woods 224/79 ($winton). In Woods, the Union maintained that i% had sent a request ~o the Board in timely fashion, but the request was, in fact, never received by the'Board. The panel in woo~s was of the view %hat "the griewor has failed ta comply with the time limits in the Collective Agreement in coming before this Board" (B.4) and thus may be taken to have reached the conclusion that it is the .receipt of an application rather than the sending of it which constitutes successful compliance with the time limit-- set out in Article 27.4. It may be said, however, and the Union dispositive on =hie poin~ ~ecause in that case, the matter was one Covered by section. 18(2) of the Crown Employees Collective Bargaining Act, R.S.O., 1980, c. 108, which provides, in effect, %hat with respect to matters of discipline or dismissal or suspension without just cause, failure to comply with time limits set out in the Collective Agreement cannot .preclude the grievor from proceeding with a grievance. A¢cordingly, At might be said 'that the panel deciding =he W_~ case did not need =o rule on the question of whether an application under 27.4 is' effective on mailing or receipt, Turning to the specific language of the Article, we note that the wording of 2?.4 is not, ~n itself, o~early dispositive of the matter. The phrase "the grtevor may apply" might be taken to refer either to the mending of an application t9 the Board or the filing of an application w_~ the Board. If we had only the language itself to rely upon, we incline to the' view that the Article should be taken to refer to the "making" of an application that this in turn connotes that the application would be made upon arrival at the BoaTd. Thi~, of course, i~ the coD. clusion adopted in the Woo~s case. There are, however,' two further policy considerations that confirm us in this view. Firs=, we note that the other time limits set out in 27.3.3 and 27.4'are engaged by the receipt of documents. In the absence of plain language to the contrary, we favour the view that other time limits set out in the Article should be similarly construed. Secondly, an interpretation which held .that 13 the mailing of documents would be sufficient compliance with article 27.4 would be.capable of producing substantial prejudice to the employer. As the W~od~ cass illustrates, it might be that an application would never be received and nonetheless, on the Union's view, it would be held that an application =o the Board had been properly made. For these reasons, 'it is our view that the parties'would normally ex%oect that document such as an application to the Board under article 2?.4 would be effective upon receipt by the Board and accordingly, we hold that the view set forth in Woods offers the correct interprets=ion of article 27.4. Although it may be observed that this interpretation of Article 27.4 is capabl~ of working a hardship in some cases, we note the= Section 18(2) of the CroWn Employees Collective Bargaining Act, R.S.O. 1980, c. 108 provides an independent statutory right to grieve such matters as classification, appraisal, discipline and dismissal or suspension without cause which is unaffected by the time limits set out in the Collective Agreement. Nonetheless, ~here may well remain some possible cases of hardship. In our view, however, such possibilities are inevitable once it is determined that the time timi=s .set forth in Article 27 are mandatory in nature. NO doubt, it may appear unattractive for the Employer =o rely upon a failure to comply with a mandatory time limit where, as in the present case, the failure amounts to a delay of one day and where there appears to be no likelihood whatsoever of prejudice. While the objection taken, is in our view, technically sound, it 14 agpears to 'be- otherwise unmeritorious. We gather that Emgloyer's Justification for taking this 9osition in the present case is its dissatisfaction with the Union's 9articipation in the informal discussions referred to in article 27~2.1. Be that as it may, it is not without regret that. we feel bound to conclude .that the Employer's ~hird preliminary objection with respect to Article 27.4 iS soundly taken. For the foregol~ng reasons, these grievances are hereby dismissed. DATED at Toronto, this ~6~h day~of Ma~, 1989. F. ,'~ollom Me,er A. Merri=: Me.er