Loading...
HomeMy WebLinkAbout1989-1134.Savoie.90-04-10'? , ONTARIO EMPLOYES DE LA COURONNE ' . CROWN EMPLOYEES DE L'ONTARIO · GRIEVANCE c,OMMISSION DE SE'n'LEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8- SUITE2100 TELEPHONE/T~L~'PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z8 - BUREAU 2100 (416) 598-0688 1134/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Savoie) Grievor - and - She Crown in Right of Ontario (Ministry of the Environment) Employer BEFORE: S.L. Stewart Vice-Chairperson F. Taylor Member H. Roberts Member FOR THE J. Ford GRIEVOR: Grievance Officer Ontario PO'blic Service Employees Union FOR THE K. O'Shea EMPLOYER: Consulting Staff The Institute B. Adams Staff Relations Advisor Ministry of the Environment FOR THE N. Rickey THIRD PARTY: HEARING: January 25, 1990 DECIS~0~ In a grievance dated August 3, 1989, Mr. P. Savoie alleges that he has "been denied equal opportunity to compete for a competition". The successful applicant for the position, Mr. N. Rickey, was present at the hearing and was given the opportunity to participate in the. ~- proceedings At the outset of the hearing the Employer raised an objection to the arbitrablity of the grievance. It was the Employer's position that as the grievance had not been dealt with at the second step of the grievance procedure the Board was without jurisdiction to determine the grievance. Furthermore, it was the Employer's position that, pursuant to Article 27.13 of the Collective Agreement, the grievance was deemed to be withdrawn. The Board reserved its decision on this issue, in accordance with the request of the representatives of the parties, in order to provide a written decision. The relevant provisions of the Collective Agreement provide as follows: ARTICLE 27 - GRIEVANCE PROCEDURE 27.1 It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties' arising, from the interpretation, application, administration or alleged contravention of this Agreement, including any question of whether a matter is arbitrable. 27.2.1 An 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 (t0) days in the 'following manner: STAGE ONE 27.3.i The employee may file a grievance in writing with his supervisor. The superviso.r 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 Stage 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 (t5) 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 is not satisfied with the decision of the Deputy Minister or his designee or if he does not receive the decision within the specified time the grievor may apply to the Grievance Settlement Board for a hearing of the grievance within fifteen (15) days of the date he received the decision or within fifteen (15) days of the specified time for receiving the decision. 3 GENERAL 27.13 Where a grievance is not processed within the time allowed or has not been processedLby the employee or the Union within the time prescribed it shall be deemed to have been withdrawn. 27.15 The time limits contained in this Article may be extended by agreement of the 'parties in writing. 27.16 The Grievance Settlement Board shall have no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreement. The facts relevent to the preliminary issue are not in dispute and were established by the correspondence filed by the representatives of the parties. Mr. Savoie's August 3, 1989 grievance was responded to by Mr. M. McKennny, Manager, Field Operations, in a letter dated August 24, 1'989. By letter dated September i, 1989, Ms. B. Marshall, Staff Representative with the Union, wrote to the Deputy Minister and advised that the Union and the grievor wished the matter to proceed'to Step Two of the grievance procedure. It is at this point that an apparent misunderstanding arose. On September 15, 1989, Mr. R. Younger, Staff Relations Advisor, wrote a letter to Ms. Marshall .confirming arrangements for a Step Two meeting to be held on October 17, 1989 at 2:00 p.m. The letter states that a copy of the letter had been forwarded to the grievor. Ms. Marshall wrote a letter dated September 20, 1989, to the 4 Deputy Minister. The relevant part of this letter'states as follows: ~ In response to the Union's request for Step 2, on behalf of the Ministry Mr. Monte Seli contacted my office to a~range the Step 2 meeting. On speaking with Mr. Seli on Monday September 18, 1989, it was my understanding that October 17, 1989 was an available date for your Designee and my schedule, and would be acceptable dependent upon the grievor's avail- ability--Mr. Seli agreeing to check with the grievor's manager. Mr. Savoie advised me today, September 20, 1989, that he had advised his manager on Monday September 18, 1989 that he was scheduled for a period of hospitalization and his last day worked would be Friday September 29, -1989. It was not until Tuesday September 19, 1989 when Mr. Savoie received written notification, that he was aware of the meeting scheduled for October 17, 1989. When I spoke with Mr. Savoie today, he advised he was not contacted re his availability. Mr. Savoie contacted Human Resources to attempt rescheduling because of h~s scheduled hospitalization. Late this afternoon, I contacted Mr. Sell and was ~advised that Mr. Bob Younger had relayed that he was not going to reschedule the Designee and that the Step 2 would take place with or without the grievor and/or his representative on October 17, 1989. It was untimely to this process that Mr. Savoie has been scheduled to be admitted to the hospital. However, under the circumstances, in that Mr. Savoie was not contacted as agreed to with Mr. Seli; it is the Union's position that Mr. Younger's position is arbitrary and not acceptable. Not often are we confronted with this type of circum- stance and therefore find it difficult to comprehend the decision of your Human Resources representative from the union's perspective. It would seem that the designee was not advised and/or consulted of the coincidental circumstances that developed Monday, September 18, 1989. It would be our submission to you t~at every effort be made by your office to arrange a Step 2 meeting prior to Mr. Savoie's last day worked of Friday, September 29, 1989. 5 In that I am scheduled out of the office the week of September 25th, I would request that you contact Mr. Savoie directly at his place of work. Mr. Savoie will also confirm with you the name of his representative for that meeting. If the Ministry is unable to schedule a meeting prior to Mr. Savoie's hospitalization, the Union may select other avenues to addressing this matter which would include protesting the arbitrary decision to proceed on October 17, 1989. Hopefully, this matter can be resolved to our mutual satisfaction... - There is a further letter from-~.Ms. Marshall, dated October tO, 1989, to Mr. B. Adams of the Employer. The relevant portion of this letter states as follows: In response to your telephone call to my office on Tuesday, October 10, 1989, as a reply to my letter dated September 20, 1989, please be advised that I am without authority, at this time, to extend time limits in this case. As you are now aware, Mr. Savoie has been hospitalized and on his last day worked had instructed me to commence, on October 11, his requestL to proceed to arbitration. Upon Mr. Savoie's return to work, I will place before him your request to schedule a meeting to address the grievance. It is unfortunate that the timings and circumstances of this grievance have not afforded a mutually convenient date. Hopefully this circumstance will not impede a settle- ment resolution albeit after the time frames of Step 2, and I will be in touch with you once Mr. Savoie has returned to work. Mr. Ron Clark, Director, Human Resources Branch of the Employer, responded to Ms. Marshall in a letter dated October 16, 1989, the relevant porkion of which states as follows: I understand that Mr. Brad Adams of my staff has been in touch with you on October 10 regarding this matter. However, ..by that time you had been instructed by the grievor to proceed to arbitra- tion on October 11, 1989 and would not be able to contact the grievor prior to October 11, 1989. While I appreciate your concerns, I should point out that it is our policy to deal only with grievors' representatives and not directly with the grievors. In fact, many of the O.P.S.E.U. staff representatives make it quite clear to us that we should communicate only with them. I am sure you will agree that for us to communicate with individual grievors and O.P.S.E.U. ~'staff representatives would be extremely time consuming, lead to confusion and inconsistency of communications. With regard to arranging the Step 2 meeting prior to September 29, you will appreciate that this was not possible thus the agreed upon date of October 17 was established. We are of course flexible in this matter and as discussed with Mr. Adams, we will be in touch with you.whe~.n Mr. Savoie returns to work to set up an infor~'i stage 2. The grievance was referred to arbitration by letter dated October 17, 1989. As Mr. Clark's letter was dated October 16, 1989 and gives no indication on its face that it was sent other than by regular mail, it appears that the referral to arbitration was made prior to the Union receiving Mr. Clark's letter. Ms. Marshall replied to Mr. Clark's letter by letter dated October 2_7, 1989, wherein she states as follows: Your letter of October 16, 1989, has been received by this office. I have been in touch with Mr. Savoie and he anticipates to return to work in mid-November. At that time Mr. Savoie indicates that he would be prepared to discuss this issue. We await your contact to this office in order to set a mutually convenient me.eting time and place. The final relevant~piece of correspondence is a letter dated November 2, 1989 from Mr. Younger to the Registrar of the Grievance Settlement Board which states-as follows: The employer strenuously objects to the manner in which this grievance has bee~ submitted to the G.S.B. by the union and the grievor. It was agreed at the request of the grievor that the time limits at Stage 2 relating to. this grievance would be extended under Article 27.15. The grievance has not been discussed at Stage 2 because the grievor stated he would not be available due to personal commi tree nt s. It will be the employer's intention to raise this matter as a preliminary objection shou..!d the grievance be scheduled for arbitration. In addition to the correspondence referred to, the Board heard evidence from .Mr. Savoie. Mr. Savoie testified that it was his understanding that the parties had agreed to extend the time limits for the second stage meeting but that as a mutually agreed time to meet could not be arranged, he instructed Ms. Marshall to refer the matter to arbitration. Although Mr. Savoie anticipated that he would be ret'urning to work sooner, he did not return to work until January 22, 1990, three days before this hearing. As a result, a meeting-a't the sec6nd stage was not held. On behalf of the Employer, Mr. O'Shea submitted that it was clear that the parties had agreed to extend the time 8 limits in order that a second stage meeting be he~d. It was argued that the Union rescinded the agreement to extend time limits by referring the matter to arbitration. In Mr. O'Shea's submission, the effect of rescinding the' agreement with respect to extending time limits was that the grievance became untimely. Specifically, he argued that under Article 27.13 of the Collective .Agreement the~ grievance was not processed in a timely manner and that it was therefore "deemed to have been withdrawn". In support of his position, Mr. O'Shea referred to the decision of the Grievance Settlement Board in Connelly 960/88 (Dissanayake). Mr. O'Shea also argued that the provisions of s. 18 and 19 of the Crown Employees Collective Bargaining Act supported the Employer's position. On behalf of the Union, Mr. Ford argued that provisions of Article 27.13 do not have application to the facts of this case. He submitted that the Union fulfilled its obligation under Article 27.3.2 by referring the 'matter to the second stage. It was agreed that time limits would be extended in order that a meeting could be held at a mutually convenient time. While the second stage meeting did not take place due to the inability of the parties to arrange a mutually convenient date resulting from Mr. Savoie's absence from work due to his hospitalization and r~covery period, it was submitted that 9 these facts do not properly result in the application of article 27.13. 'Mr. Ford referred to Whibley 940/85 (Gandz) in which this Board determined that the failure of the grievor to discuss a grievance at the first stage of the grievance procedure did not preclude the matter from proceeding to arbitration as the provision was a directory rather than a mandatory provision. Mr. Ford argued that the case at hand was analagous in that, while' Article 27.3 contemplates a second stage meeting, the provision is not a mandatory one. Accordingly, he submitted that the fact that a second step meeting did not take place does not preclude the Grievance Settlement Board from hearing the grievance. He argued that the grievance was properly referred to arbitration after it became apparent that the parties would be unable to arrange a'second stage meeting at the time they originally contemplated they would. He emphasized that Article 27.1 conte~mpl~tes prompt disposition of grievances and argued that the logical implication of the Employer's position is that the grievance would have to have remained in abeyance until such time, whenever that may have been, that a second stage meeting could be scheduled. ~. It is clear, and it was common ground, that there was an agreement between the parties that the time limits under the Collective Agreement would be extended in order that a 10 second stage meeting could be held. It is also clear that th~s understanding was based on the premise that the meeting would be held in the near future. Mr, savoie's hospitalization and resulting unavailability made an immediate meeting impossible and thus the basis for the agreement to extend time limits was no longer in existence. We do not agree with Mr. O'Shea that the effect of the Union's referral of the grievance to arbitration at this point is to render the grievance untimely. The implication of this argument is that if the agreement to extend time limits was rescinded then it is as if it never existed. This is clearly incorrect. Such an agreement did exist and unti~l the agreement was rescinded, the prescribed limits must be considered to be held in abeyance. Accordingly, we reject the Employer's argument that the grievance has not been processed within the relevant time limits and hence that it should be deemed to have been withdrawn pursuant to Article 27.13 of the Collective Agreement. The next matter that must be addressed is whether the fact that a second stage meeting has not been held has the effect of precluding the Grievance Settlement Board from hearing the grievance. The Collective Agreement does not specifically provide that all steps of the grievance procedure must be exhausted prior to the referral of the matter to arbitration. Section 18(2) of the Crown 11 Employees Collective Bargaining Act confers the right of an employee "to grieve certain matters, in addition to any rights conferred by a collective agreement. The grievance here is not one that falls within the speci-fic matters enumerated in s. 18(2) of the Crown Employees Collective Bargaining Act_. Therefore, the reference in s. 18(2) to a grievance proceeding "in accordance with the grievance procedure provided for in the collective agreement" and~ only proceeding to arbitration "failing final determination under such procedure" is not applicable. In our view it is this matter that distinguishes the case at hand from the Connelly case, as in that case and the case referred to therein, the grievances dealt with matters that were encompassed by s. 18(2). In addition, the Connelly case involved-a situation where there was a failure on the part of the Union to refer the matter to the Deputy Minister at the second stage. In this case, the matter was referred by the Union to the Deputy Minister. There was no default on the part of the Union with respect to the processing of the grievance. Due to the unforseen availability of the grievor, the second stage meeting could not take place as contemplated by the parties and the matter was referred on to arbitration by the Union. It is our view that the fact that a second stage meeting has not been held does no~ mean 12 that this Board is without jurisdiction to hear the grievance. Article 27.1 specifically refers to the intention of the parties to have grievances resolved expeditously. It would be inconsistent with the clear intent of this provision to conclude that the Collective Agreement would require the Union in this case to hold the grievance in abeyance until a mutually convenient time for a second stage meeting could be scheduled and held. With respect to the question of whether the holding of a stage two meeting is a mandatory precondition to the referral of the grievance to arbitration, we agree with the view expressed at p.9 of the Whibley decision where, a'fter a review of the jurisprudence, the Board states: It is quite clear in reviewing this jurisprudence, that the word "shall" does not, in and of itself, make a provision mandatory. Two additional factors enter into this consideration; the presence or~ --absence of language specifying the consequences of non-compliance with the provision and the factual consequence of the default to one or both the parties. As noted above, unlike some collective agreements, this Collective Agreement does not specifically provide that all steps of the grievance procedure must be exhausted prior to a. grievance proceeding to arbitration nor does it specifically provide for consequences where a grieuance has not been dealt with at any stage of the grievance procedure. The factual consequences of non-compliance here are that both parties have lost an opportunity to become aware of the position of the other side and to possibly 13 resolve the grievance. ~hile this is clearly a significant matter, both parties are equally prejudiced. As well, as a practical matter, it is open to the parties to proceed, to discuss this matter outside of the formal confines of the grievance procedure. It appears from the' correspondence between Ms. Marshall and Mr. Clark subsequent to the referral of the grievance to arbitration that this is precisely what the parties intended to do and presumably would have done if Mr. Savoie had recovered as quickly as he initially contemplated. Following the analysis of the Whibley decision, we are not convinced ~ that the holding of a second stage meeting is a mandatory provision that prohibits the Board from dealing with the merits of this grievance. For these reasons, it is our conclusion that the prelimiha'~y objection raised by the Employer must fail. The matter is referred to the Registrar in order that a hearing to deal with the merits of the grievance may be scheduled. This panel, is not seized with the grievance. Dated at Toronto, this 10 day of 'April, 1990 Susan L. Stewart - Vice-Chairperson /~' F. Taylor - MemberJ .... ]5 DISSENT .. 1134/89 OPSEU (P. SAVOIE) and The Crown in Right of Ontario (MINISTRY--.OF THE ENVIRONMENT) I have read the award released on the above case and regret that I cannot agree with the decision reached. The key point raised in the Employer's preliminary objection was that the Union had proceeded directly to arbitration without first undergoing a Stage 2~hearing of the grievance, as set out in Articles 27.3.2 and 27.3.3 of the Collective Agreement. Exhibit 3, pages ~2 and 3, an exchange of letters between the Employer and the Union, clearly establishes that Stage 1 was carried out and rejected by the Union with-a request from the Union for a hearing at Stage 2. Exhibit 3, page 4, a letter from Mr. Younge£'to Ms. Marshall, dated 15 September 1989, sets up a time and aT'place for the Stage 2 hearing requested by the Union. Due to the imminent hospitalization of Mr. Savoie, the Grievor, the proposed time and place suggested by the Employer for Stage 2 was not acceptable to the Union. On October 10, 1989, Mr. Adams, from the Ministry, telephoned Ms. Marshall to suggest an extension of the time- limits for the Stage 2 hearing, as noted in Article 27.15~of the Collective Agreement. MS. Marshall wrote to Mr. Adams that same'day and advised him she did not have the authority to extend time limits in this case. (Exhibit 3, page 6) The balance of her letter however, indicates- acceptance of the intent to hold a Stage 2 hearing after Mr. Savoie's return to work and accordingly afte~ the time limits set out in the Collective Agreement. Exhibit 3, page 7, a letter dated 16 October 1989, was sent to Ms. Marshall by Mr. Clark of the Ministry, and accepts the proposal made above by Ms. Marshall, as noted in the paragraph at the foot of page.1 of his letter. There is therefore, at this point in time, a clear agreement between the parties to hold a Stage 2 hearing of the grievance after Mr. Savoie returned to work. However, one day after the above understanding was reached, Kevin Park of the Union, sent a letter to the Grievance Settlement Board asking for arbitration of the grievance of Mr. Savoie. (Exhibit 3, page 8) Even after this was done, a letter dated 27 October 1989, was sent by Ms. Marshall to Mr. Clark which continues to explore an appropriate time and place for a Stage 2 hearing on the grievance. (Exhibit 3, last page) It would seem that two representatives of the union were working at cross purposes here, one seeking arbitration and one still expecting a Stage 2 hearing. In spite of the fact that Mr. Savoie's recovery time went past the expected Mid-November date indicated, there was still an open-ended' invitation from the Ministry to. schedule a Stage hearing. In his testimony on January 25th, 1990, at the Board hearing, Mr. Savoie conceded that he was sufficiently recovered to have attended a Stage 2 meeting in Hamilton from his home in Cornwall, before the 22nd of January 1990, the day his recovery period ended. The Union, either knowingly or ill-advisedly, did not follow up on opportunties offered by the Employer to schedule a Stage 2 hearing, regardless of time limits and tailored to the Grievor's ability to attend. Article 27 of the Collective Agreement, in my view requires a proper completion of the Grievance Procedure therein set out before Arbitration can be sought. The Stages for hearings should be adhered to unless both parties agree mutually to forego or bypass them. Section 27.15 of the Agreement specifically allows for an extension of any time limit to ensure that the full due process of the Grievance Procedure is possible. Authority to agree to such an extension, which Ms. Marshall says she did not have, could surely have been obtained from anothe~ Union officer who had such authority, with regard to the circumstances surrounding this grievance. The Union, by applying for arbitration before a Stage 2 hearing was held, and, as has been recorded in their correspondenc~ with the Ministry, even while attempts to set up a Stage 2 hearing were going on, has clearly jumped the gun by not following the requirements of Article 27. The passage of time which the Grievor indicated was what caused him to seek direct entry to arbitration was not excessive when one looks at the time periods between many., hearings of the Grievance Settlement Board. He could, from all we have heard, have had a Stage 2 hearing much earlier tha~ January 25th, 1990, the date the Board heard this case, by simply taking up the Employers offer t.o~.hold a Stage 2 hearing at a time when it was convenient for him. From all of the above, in my opinion, the Union failed to meet the pre-requisite requirements leading to Arbitration and I would have upheld the Employer's preliminary objection. H. Roberts, Member