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HomeMy WebLinkAboutChang 88-05-13IN THE MATTER OF AN ARBITRATION BETWEEN: Seneca College (hereina£ter referred to as "the employer") - and - Ontario Public Service Employees' Union (hereina£~er referred to as "the trade union") And In the Matter of the Grievance of L. Chang Before: D.H. Kates, Chairman Gerry Capian, Union Nominee ~.A. Correll, Employee Nominee .Appearing for the Employer: Robert ~. Lit. tie, Counsel Appearing for the Trade Union: N. Luczay, Grievance Of£icer Heard at To~onto, Ontario, on March 26, 1988 - i - Decision This is a posting grievance alleging employer viola%ion of Article 17.i.1 of the collective agreement in that it is complained that the grievor was not given proper consideration o£ her qualifications, expe~ience and seniority for the position of Liberal Studies Assistant. The grievance was referred to the College on May 7, i987. The College has taken the position in these proceedings that the grievance was "out of time" and therefore was not arbitrable. collective agreement for the presentation of a grievance are "mandatory". This Arbitration Board, accordingly, has no discretion to extend the time limits to enable the grievance to be determined on its merits. It is also conceded that the time . allowed for the presentation of 'the grievor'$ grievance under Article 18.6.1 of the collective agreement was "within fifteen (15]; days after the circumstances giving rise to the complaint occurred or have or ought reasonably to have come t.o the attention of the employee". The relevant provisions of the collective agreement dealing with the presentation of a timely grievance are as follows: 18.1.4 Grievance "Grievance" means a complain% in writing arising from interpret, ation, application, administration or alleged contravention of this Agreement. 18.2.1 Time if the grievor fails to act within the time limits set out at any Complaint or Grievance Step, the grievance will be considered abandoned. - 2 - 18.2.3 Extensions At any Complaint or Grievance Step of the grievance procedure, the time limits imposed upon either party may be extended by mutual agreement. 18.6.1 Grievances A complaint shall be taken up as a grievance in the following manner and sequence provided it is presented within fifteen (15) days after the circumstances giving rise to the complaint have occurred, or have come or ought reasonably to have come to the attention of the employee. The facts relevant to the employer's arbitrability challenge are relatively straightforward and without controversy. On December 11, 1986, the employer posted the vacancy of Liberal Studies Assistant, Newnham Campus. The posting attracted four internal candidates. The grievor was the most senior of the candidates to respond. In due course the candidates were interviewed by a selection committee with respect to their qualifications to fill the vacancy. And by letter dated February 12, 1987, the grievor was informed that she had not been selected. The letter from Mr. Newman Wailis, Chairman, Liberal Studies Division, reads as follows: It was with some gratification that this Division received applications from a number of highly qualified people from inside the College for the position Liberal Studies Assistant. The unhappy side of such news is that there can only be one successful candidate, leaving all the rest disappointed. To ensure that optimal care was taken in arriving at a fair and equitable decision, t instructed the three Chairs of this Division to interview each candidate and to place two names before me for final determination. As you know, you were one of those put forward, resulting in a thoroughly en3oyable interview. I am taking the time to write to you because i was truly flattered by the high calbre of talent which applied and wish I could have hired them - 3 - The decision has been made and I am confident that it is the right one. It is my sincere hope that, because it was not yourself, it will in no way diminish your interest in this Division or in the process o£ advancement in the College. On behalf of Liberal Studies, I thank you for your expression of interest. "Newman Wallis" Chairman Liberal Studies Division It is common ground that the grievor did not communicate any complaint to the College with respect to the propriety of the selection until March 12, 1987. There was some suggestion that Ms. Chang discussed her circumstance with her trade union steward, Ms. Betti Egri, who advised that she contact Mr. Wallace in order to determine the reasons she had been denied the position. Ms. Chang indicated that she was aware that Ms. Donna Fraser was the successful applicant before she initiated any contact with the employer to learn the reasons for her re3ection. On March 12, 1987, the grievor wrote Mr. Wallace the following: I was very disappointed when notified that I was rejected for the position of Liberal Studies Assistant. Furthermore, I remain unclear as to what required qualifications were lacking. Please provide me with a detailed written assessment of my strengths and weaknesses from which you based your decision. This information is relevant for future similar positions which I may be applying for. My hope is that once these skills are improved, I will not be disqualified in the final decision. Thanking you in advance. "Lily Chang" - 4 - At this 3uncture it would appear, at least, if it is appropriate to measure the fifteen day time limit from the receipt by the grievor of the re3ection letter, that the grievor was already late in her efforts to grieve the employer's decision. Indeed, it would appear from the text of the letter of March 12, that the grievor did not necessarily wish to grieve the employer's selection of Ms. Fraser. Rather, the letter seems to reflect a desire on the grievor's part to determine the extent of her shortcomings so that she might take the required measures to improve her qualifications in anticipation of the next opportunity to respond to the posting of a vacant position. In any event Ms. Chang was asked the following question by her trade union representative during her examination-in-chief: Question: Do you have any reason to believe there was a violation of the agreement on March 12, t9S77 Answer: Yes. In response to Ms. Chang'$ letter of March 12, 1987, Mr. Wallace arranged a meeting on Hatch 27, 1987, to discuss the competition results with her. It suffices to say that Ms. Chang was not satisfied that she was given appropriate answers to her questions about the reasons for her failed application, it appeared that Ms. Chang did learn that she scored second in the competition behind Ms. Fraser. Moreover, she was given some encouragement with respect to the likelihood of her future advancement as vacancies occurred. Nevertheless, Ms. Chang was given little assistance with respect to her desire to know about. her shortcomings in the instant competition. Indeed, she - 5 - indicated that Mr. Wallace told her that he was not obliged to give her any reason for the employer's re~ection of her candidacy. And moreover, if he was required to, he would, simply fill a page with insults. Mr. Wallace is alleged to have made a veiled threat suggesting that if she took her complaint further it might prejudice her chances for success in future 3ob competitions. And, of some significance, Ms. Chang accused Mr. Wallace of using patronizing language to explain the employer's dilemma in making the appropriate selection. The grievor suggested, having regard to her legitimate purpose for the meeting, that she was being treated in an insulting and demeaning manner. Accordingly, she indicated that she was clearly "suspicious" about the genuineness of the employer's reasons for by passing her for another candidate. Mr. Wallace was not called to give evidence to explain, deny or qualify the grievor's description of their meeting on March 27, 1987. Indeed, the one explanation that was put forward to explain Mr. ~allace's comportment during the meeting was suggested by counsel for the College during the.grievor's cross-examination. The grievor was asked whether Mr. ~allace's purpose in not providing' her with the reasons for her rejection was because he wished to avoid hurting her feelings. For obvious reasons Ms. Chang did not appear to agree with the suggestion that was put to her. In any event Ms. Chang took up her complaint with her trade union representative. Ms. Egri suggested that the grievor pursue her search for more information with Ms. Patricia Stoil, - 6 - Dean of Human Resources. Ms. Stolt apparently referred Ms. Chang to Ms. Angle Williams, Manager, Employee Relations. Ms. Williams arranged to meet with the grievor on april 15, 1987. During that meeting Ms. Williams pointed out to Ms. Chang the principal reason for the re3ection of her candidacy which reason was committed to writing by Ms. Chang immediately after the meeting: She said she was acting as a neutral courier of information only, her research concluded that I was not offered the Dob of Liberal Studies Assistant because I did not fulfill the interpersonal skills required for that position. At Ms. Chang's request, Ms. Williams confirmed their discussion of April 15, 1987, in a letter to her dated April 30, 1987. That letter precipitated the grievor's grievance dated May 7, 1987. As hitherto indicated the parties are agreed that the fifteen day time limit for the presentation of an individual grievance is "mandatory" and thereby can only be extended by mutual agreement. Accordingly, the trade union conceded that if the fifteen days are to be measured from the date the grievor was made aware of the re3ection of her candidacy on February 12, 1987, then the presentation of her grievance was clearly out of time. In other words, if the grievor was or Ought to have been sufficiently aware of the relevant circumstances of her complaint at that time %hen the grievance before this Board is not arbitrable. Nonetheless, the trade union submitted that the relevant point in time for measuring the fifteen day time limit is from - 7 - the period the grievor became satisfied, after an investigation of all relevant circumstances, that she had a legitimate complaint that could be the sub3ect matter of a grievance. From the trade union's perspective the grievor was only provided the required information (that would constitute a compiaint) for purposes of presenting an appropriate grievance after she completed her investigation and received Ms. William's letter of April 30, 1987, confirming the reasons for her failed candidacy. Accordingly if the fifteen days for the presentation of a timely grievance were to be measured from the date of that letter it was argued that the grievance would conform to the mandatory requirements of the collective agreement and would therefore be arbitrable. In support of its position the trade union relied upon the phrase contained in article allowing the presentation of a grievance "within fifteen days after the circumstances giving rise to the complaint...ought reasonably to have come to the attention of the employee". In dealing with the t~ade union's submissions we hold that once the employer established in evidence that the grievor was aware of her unsuccessful application on February 12, 1987, and no grievance was presented within fifteen days thereafter then the onus shifted to the trade union to show cause why more time was necessary before "a complaint" materialized for the purpose of coming to the grievor's attention with a view to presenting a timely grievance. in the circumstances herein described, we are satisfied that the grievor, as of February. 12, i987., was in possession of - S - sufficient information to present a timely grievance.or with the exercise o£ due diligence could have secured su££icient information within fifteen days thereof for that pupose. The contents of the employer's letter of February 12, 19S7, in our view, indicated to her that an internal candidate less senior to her was selected. She knew or ought to have known that the collective agreement allowed her fifteen days before the presentation o£ a grievance was mandatory to secure the necessary information relating to the identity and the qualifications of the successful incumbent. The uncontradicted evidence indicated that she made no effort 'to investigate and secure that information in order to comply with the time limits of the collective agreement for the presentation of a grievance. Rather, for reasons that were not made ciear to us, she waited until March 12, 1987, before any initiative was made with the employer to investigate the circumstances that resulted in her reDection. In our view article 18.6.1 contemplates that due diligence and dispatch be exercised in satisfying the mandatory requirements for the presentation of a timely grievance. And in the grievor's circumstances we are of the view that she was dilatory in making such ef£ort and thereby acted in a manner that was inconsistent with the ob)ective of article i8.6.1 for presenting an apDropriate grievance within fifteen days of the circumstances giving rise to the complaint materialized. Even if we are incorrect in our analysis (irrespective of there being no expl.anation for the delay between February 12 - 9 - and March 12, i987), we were still bereft of any explanation as to why the grievor waited until May 7, 1987, to present a grievance. There occurred several opportunities thereafter that ought to have prompted the presentation of a grievance. She admitted to us in answer to her trade union representative's question that as of March 12, 1987, "she had reason to believe that a violation had occurred". Again, for very good cause, given the inexplicable comportment of Mr. Wallace during their interview on March 27, 1987, she harboured serious suspicions about the bona fides of the selection process adopted by the employer, and finally after her interview with Ms. Williams on April 15, 1987, she learned the exact reason for the employer's reDection of her candidacy and failed to react. At no time after each of these episodes did the grievor, assuming she had a legitimate reason for delay, present a grievance within the mandatory period of fifteen days thereof. It follows from the foregoing that if we were to accede to %he trade union's argument in holding the grievance as being "timely" we would be defeating the purpose of article i8.6.1 in the sense that due diligence and dispatch are expected in advancing a complaint for the purpose of processing a timely grievance. The trade union insisted that Article 18.6.1 contemplates that the employee iS entitled to det. ermine when the circumstances are ripe for the filing of an appropriate and timely grievance. And in Ms. Chang's situation those circumstances only emerged on April 30, 1987o when Ms. Wil£ams' letter was received. It is our view that that argument is of no - 10 - merit and would, if accepted, undermine, as indicated, the very objective of imposing a mandatory time limit for the presentation of a grievance. 6s in this case, a grievor could delay indefinitely the filing of a grievance under the guise of investigating the circumstances to determine if a complaint existed. In the circumstances described to us we are satisfied that the time period of fifteen days following the receipt of her re3ection letter of February 12, 1987, constituted sufficient time for that purpose. For all the foregoing reasons the grievor's grievance is untimely and is therefore not arbitrable. Before leaving this case we wish to repeat our ruling made at the hearing redacting the trade union's alternative argument in support of our holding the grievance to be timely. After the evidence was closed and during argument, the trade union submitted that the employer's reply to the merits of the grievor's complaint at the second level of the grievance procedure was not made "without prejudice" to its arbitrabiiity objection. It is clear that the "without preDudice" qualification was inserted in the employer's written reply at the first level. At the time the argument was made the Board took exception to the "ambush strategy" that was used by the trade union to submit that particular position. We accordingly re£used to entertain the argument holding in effect that the un~on "had waived" the argument by failing to raise it at the commencement of the hearing so as to enable the employer the opportunity to - 11 - present evidence and/or argument in response thereto. In reaching our conclusion the Chairman indicated to the parties that our ruling would'be confirmed in writing and we would refer to a Divisional Court case that was relied upon in support thereof. Accordingly, the parties are referred to the case in Re H.E. Adams and Crown in Right o£ Ontario (Ministry of Correctional Services) decision of Divisional Court dated June 7, 1979. As a result o£ all the foregoing these proceedings are Dated th ia (~ay o£ May 1988. David H. Kates I concur "Gerry Ca01an" Employer Nominee I concur "94.6. Correll" Trade Union Nominee