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HomeMy WebLinkAbout1989-0930.Gembora.90-05-24 ONTARIO EMPLO YES DE I.A COURONNE CRO WN EMPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG 1Z8 TELEPHOIVE/T~L~-PHONE: (4761, 326-;38~ 180, RUE DUNDAS OUEST, BUREAU 2t00, TORONTO (ONTARIO). M5G 1Z8 FACStlVitLE/T,~-L~COPIE : ~476) 326-~396 930/89 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Gembora) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer - and - BEFORE: N.V. Dissanayake Vice-Chairperson E. Seymour Member F. Collict Member FOR THE M. Kuntz GRIEVOR: Grievance Officer Ontario Public Service Employees Union FOR THE J. Vair EMPLOYER: Counsel Mathews, Dinsdale & Clark Barristers & Solicitors HEARING: March 27, 1990 2 DECISION The grievor, Dr. Luisa Gembora grieves that she was not awarded the position of psychologist at the newly created forensic unit at the Kingston Psychiatric Hospital. This position was posted in November 1988, and following a competition, was awarded to Dr. Irwin Altrows. Dr. Altrows was notified of the proceeding herein but did not appear. At the outset of the hearing Counsel for the Employer raised a preliminary objection on the basis that the grievance is untimely because it was not filed within the mandatory time limits prescribed in article 27 of the collective agreement. The parties agreed that the Board should first deal with this issue of timeliness. It is now well established by Awards of the Grievance Settlement Board that the time limits specified in Article 27 of the Parties' Collective Agreement arc mandatory in nature and not directory. See Keeling and Ministry of TransDortation and Communications, 45/78 (Prichard); and Parr and Ministry of Education, 317/82 (Swan). Article 27.2.1 of the Agreement reads: "An employee who believes he has a complaint or a difference shall first discuss the complaint or difference with his supervisor within twenty 3 (20) days of first becoming aware of the compalint or difference." Article 27.2.2 reads: "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:..." Article 27.9 provides that if the Grievance is not pursued within the time allocation provided in the Article, then it shall be deemed to have been withdrawn. At the time of the competition, the grievor was .employed at the Brockville Psychiatric Hospital as a psychologist. She had been in that position for some 8-9 months and had been made a permanent employee of the government service effective December 6, 1988. She had been a PhD registered psychologist for approximately 2 years. Following the competition, by letter dated December 29, 1988, the grievor was notified that she was not selected fo~ the posted position and that another person with 13 years related experience was the successful candidate. The grievor testified that she was shocked and disappointed because she was not aware of anyone else with better qualifications. She assumed that the successful applicant must have come from outside the province. Sometime in January 1989., she discussed the situation with her supervisor at Brockville, the Chief Psychologist Dr. Siddiqui and decided to call the Chief Psychologist at Kingston, Dr. Staples, in order to find out why she had not been selected. When she spoke to Dr. Staples, she was informed that there was nothing lacking in her qualifications- and that the only reason she was unsuccessful was because the other applicant had 13 years of related experience. At this point the grievor did not feel that there was any grounds to question the Employer's decision. She testified that she did not want to be seen as a bad sport and a sore loser. In her own words "I was still disappointed but felt that is life". The grievor nevertheless was anxious to find out who the successful candidate was. Several weeks later she found out who it was by "asking around and talking to people". Even then she did not feel she had any legal recourse to challenge the result of the competition. It was not until July 7, 1989,3 when she spoke to a colleague at Brockville Psychiatric Hospital that she was advised that she may have a right to grieve if she can establish that she was relatively equal in qualifications. The colleague suggested that she call the Personnel Officer at Kingston Psychiatric Hospital, who served on the selection panel. After several attempts, the grievor managed to talk to the Personnel officer at Kingston 5 on Friday July 14. She asked him for information about the number of applicants that had applied and the marks she was given by each of the three panel members. She felt that the officer was somewhat reluctant to provide the information. When she inquired if she would be able to get the information under the Freedom of Information Act, the officer informed her that he did not have the information handy, that it will be put together and provided to her "sometime next week". When by Thursday of the next week, she had not been contacted by the officer at Kingston, she decided to file the grievance, and did so on July 19, 1989~ some 7 1/2 months after the day she was notified of the results of the competition. The union concedes that the time limits in article 27 are mandatory. However, Ms. Kuntz submits that this is a unique situation. After she got the letter of December 29, '198~8., the grievor had "a professional inhibition" about challenging her employer's decision. Therefore, rather than taking any formal steps she was quietly active trying to gather pertinent information in an informal way. It was only in July 1.9.~$ that she became aware that under article 4 she may have a right to grieve. Then she sought information from the personnel officer at Kingston. When this was not forthcoming she promptly grieved. Ms. Kuntz points out that the grievor became aware of her right to grieve on July 7th and filed the grievance on July 19. If the grievor had made inquiries about the competition within the 20 day time limit with the intention of filing a grievance if the facts were favourable, an argument may hawe been made that she did not become aware of the basis for her grievance until she had obtained that information. However, that is not the case here. It is clear that once shereceived the results she resigned herself to the fact that there was nothing she could do about it because she was not aware of her right to grieve under article 4. She candidly testified that she did not contact the trade union because she felt there was nothing the Union could do for her. While she did make some informal inquiries, that could not have been done with a view to ascertaining whether she had a basis to file a grievance because she was unaware of a right to file a grievance until July 7th - well beyond the time limits under article 27. The evidence is clear that the sole reason for the delay in filing this grievance was the grievor's unawareness of a right to grieve on the basis of relative equality. This is evidenced by the fact that she filed the grievance promptly after becoming aware of the right to grieve. This Board has held that "lack of personal knowledge by an employee of a statutory provision, regulation or term of the collective agreement cannot form the basis for avoiding the application of a mandatory time limit. Re Mike Graham, 981/86 (Ratushny). It is unfortunate that the grievor has to be denied the right to a hearing on the merits of her grievance, because she was unaware of her rights. However, she could have avoided this situation if she had contacted her trade union representatives to clarify her position. The parties have agreed to mandatory time limits for processing of grievances. They have also agreed in article 27.14 that "the Grievance Settlement Board shall have no jurisdiction to alter, change, amend or enlarge any provision of the collective agreement." Unlike the Labour Relations Act, the Crown Employees Collective Bargaining Act does not give this Board the authority to extend time-limits on equitable grounds. This Board has no alternative but to apply the procedures negotiated by the parties. This is more so in a competition grievance such as this, where the vested rights of the incumbent employee are also in issue. Re Lariviere, 73/76 (Swan). Therefore, the Board must find that the present grievance was filed outside the mandatory time-limits stipulated in the collective agreement and it is accordingly dismissed for that reason. 8 Dated this "~b. day of ~y>,]~ 1990 at Hamilton, Ontario Nimal V. Dissanayake Vice-Chairperson E. S&ymour Member Member