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HomeMy WebLinkAbout1989-1203.Bondy.91-04-12 ONTA RIO EMPL 0 Y~-S DE LA COUR ONNE CROWN ~MPL 0 YEES DE L'ONTA RIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT DES GRIEFS '180 DUNOAS STREET WEST, SUITE 2'~00, TORONTO, ONTARIO M50 TZ8 TELEPHO~JE~TELEP~oNE (4 ~5] 22&- ~35 'i80, RUE ~UN~IA$ OUEST, ~UREALJ 2100, TORONTO [ONTARIOJ. MSG 1Z$ FAC$IM;LE/TELECOPIE : {4 16~ 326- 1203/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before BETWEEN OPSEU (Bondy) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: T. Wilson Vice-Chairperson S. Urbain Member D. Walkinshaw Member FOR THE P. Cavalluzzo GRIEVOR ~ ...... ~ Cavalluzzo, Hayes & Lennon Barrister & Solicitors FOR THE S. McDermott EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart & Storie Barristers & Solicitors HEARING. February 9, 1990 .... P"RELIMINARY DECISION The Grievor, Tim Bondy, is a Correctional Officer 2. Before becoming classified staff, he worked on a number of contracts with the Ministry. Prior to that, he had been employed as a special constable (classified staff) by the Ontario Government Protective Service, which is part of the Ministry of the Solicitor General. He resigned that position in order to apply for a contract position with the Ministry of Correctional Services. He now contends that he should receive full classified credit for both his time with the Ministry of the Solicitor General and his uninterrupted series of contracts with MCS as well as his current classified seniority which he has held since May 1986. In 1987, he first raised the issue of his previous classified service and his continuous service date was adjusted to May 17, 1982. There is some dispute between the parties as to the significance of that. The result of the grievance will affect various benefits. On the merits, the Union will rely on the Beresford-Wagoner1 line of cases. However, without conceding that this is a Beresford (1429/86) type case, the Ministry raises a timeliness issue. By agreement of the parties, it is only the objection on timeliness that this preliminary Decision addresses. On the timeliness issue.the Ministry relies on Article 27 of the Collective Agreement and in particular the following: 27.t 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 as to whether a matter is arbitrable. 27.2.1 _~_: _An employee who believes he has a complaint or a difference sahll first discuss the complaint or difference with his supervisor within twenty (20) days of first becoming aware of the complaint or difference. 27.13 Where a 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 withdrawn. 27.16 The Grievance Settlement Board shall have no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreement. 3 The Ministry characterizes the grievance as a job posting grief/an:ce which is in its opinion a contr~'ct'administration issue and accordingly the time for grieving began to run when the Grievor was advised about the procedure for getting a position with the Ministry of Correctional Services, i. e. April 1985. Alternatively, the time began to run in 1986 when the Grievor was appointed to probationary status with the Ministry 'of Correctional Services or if not then at least in 1987, when he inquired about credit for his previous seniority and the Ministry made adjustments in his seniority date and rate of pay. As an alternative preliminary objection, the Ministry claims that it is now prejudiced by the delay and that laches apply. In support of its preliminary objection, the Ministry called Mary Capobianco to testify. She is the Area Personnel Administrator in the Metropolitan Toronto area for the Ministry of Correctional-Services. She has been an employee of the Ministry for at least 16 years and acted as the Minister's designee in the grievance stage of this grievance. At this hearing, the parties agreed to waive the without prejudice aspect of the grievance procedure for the purposes of this preliminary objection. She produced the step two response, a letter dated October 23, 1989, to the Grievor which states as follows: We met on October 17, 1989 in accorCance with Article 27.3.3 of the Collective Agreement to discuss your grievance which states: '-"- ': '1 grieve a violation of Article 4 of the current Collective Agreement posting and filling of vacanc,es." The settlement desired states: "That I be_ f_ully compensated for all money lost due to the inaccurate, procedures of posti¢,~, arid filling Vacancies back to my starting date." - Having reviewed the circumstances pertaining to your grievance, I must advise you that your grievance is denied as it exceeds the time limits presecribed in Article 27 of the Collective Agreement. Secondly, notwithstanding our position on the timeliness issue, I find no violation of the Collective Agreement, specifically Article Yours truly Mary Capobianco Area Pe[s..onn. el Administrator Metro Region She testified that Article 4 was the only thing raised; no reference was made to the Public Service Act. Nothing was said about the Beresford-Hicks2 line of cases. She also testified that the Ministh/ is now not able to verify if there were any vacancies available in the classified service in 1985. She admitted that the posting procedures were not followed in 1985/6 but if the vacancy had been a classified position, they would have followed Article 4 of the Collective Agreement. In cross-examination, she was asked if she could determine if the Grievor worked a certain number of hours in the relevant period. She testified that she was not sure but could for 1986 for the classified staff. However, the Ministry stipulated that the records for 1986 for hours worked for unclassified staff are accurate. This issue relates to the Union's argument that the Grievor alleges that he worked more than 40 hours a week as unclassified staff, an issue relevant to the Beresford argument. The witness conceded that the Grievor did argue during the second step of the grievance procedure that he should have been in the classified service in 1986. At that time, the Grievor attended the meeting and was accompanied by Robert Bujeya, a Correctional Officer at the Centre who acts as a union stewart, in reexamination, she testified that the argument that he should have been classified staff in 1986 was based on a violation of Article 4 of the Collective- Agreement. She was unable to testify as to why he had been put on contract originally. The Grievor testified that while he was classified staff with the Ministry of the Attorney-General, he made a number of inquiries about the possibilities of becoming a correctional officer with Ministry of Correctional Services..In particular, he spoke on a number of occasions with Gerry Thibeault, the Deputy Superintendent at Vanier Correctional Centre. The Grievor testified that Deputy Superintendent Thibeault advised him over the telephone that he would get a job there but, however, in order to get employment there he would have to resign from his current position with the Ministry of the Solicitor General; he could not just transfer. He explained to him that he would have to go on contract i.e. as unclassified staff with MCS. He told him that everyone has to start on contract with MCS. Accordingly, on 16 April 1985 the Grievor gave notice of 5 resignation effective May 6, 1985, from the Ministry of the Solicitor General. He began . a series of continuot~s contracts.with MCS at the Vanier Centre for Women and after May 1985 the Vanier Centre for Youth. There was no break in the contracts and he worked bebNeen 40-60 hours a week. He testified that he did the same work as the classified CO's. Then in May 1986, he successfully bid on a position posting for a classifed CO position at the Toronto West Detention Centre' beginning as a probationary Correctional Officer. Six months later, he successfully completed his' probationary period. As a result of inquiries he made, he received a letter dated November 16, 1987, from the Area Personnel Administrator as follows: Dear Mr. Bondy: At the request of the Office Manager, Toronto West Detention Centre, yeur period of employment with the Ministry of Solicitor General has been researched. As a result of this review, your continuous service dated will be adjusted to May 17, 1982. Appropriate documents will be prepared by our office. Please contact me if you have any questions regarding the above. Yours truly Nancy Davies Area Personnel Administrator Metro He had been inquiring about vacation which depends on the level of employment, the higher seniority people having first shot at the prime times. He testified however that he .only realized that.he might have a grievance in the last couple of days of June or July. 1989. At that time, he overheard a conversation between union people talking about another employee with a similar situation to his. So he asked about himself. The Grievor was then advised by Allan Taylor-Baptiste to speak to the office manager, Ron Brett. He then explained the whole thing to Brett and asked if there were any answers. The answer I~e got was that "no one put a gun to your head to come to Corrections" and that he would get back to him in the near future. A couple of weeks later, the Grievor again asked the office manager what Was happening to his inquiry. The reply was that he was very 6 busy, had a stack of requests to answer, the Grievor's was on the bottom and he had better put it in-Writirtg so it did not get forgotten. So on July 6, 1989, the Grievor put' it in writing as follows: Dear Ron Last week we discussed continuous service, probation periods etc. I am still researching it because I feel my entitlements were infringed upon. Could you please put in writing what we discussed and the Ministrys position on the same so can further pursue this matter. Thanks T. Bondy When the Grievor got no response to his requests, he approached Sergeant Huxtable his immediate supervisor on August 81 He told the Grievor, he would try to get a response from the office manager. About a week later he spoke to Taylor-Batiste again. Then on 28 August he had a meeting with Sergeant Huxtable and it is this meeting which he considers to be the Section 27.2.1 meeting i.e. the first step of the grievance procedure. ARGUMENT The Ministry's first preliminary object,on as outlined on page three of this Decision is that the terms of Article 27 of the Collective Agreement have not been met. In its final argument, it submitted that there were four possible t~mes when the time began to run on the grievance. The first possible date was 1985 If there was a full-time position available at that time, th_e,_g.r!_evor had a grievance based on the Collective Agreement and the clock began to run. In the Ministry's view, the test ts oblect~ve: section 27.2.1 means when he became aware or should have become aware S~nce the relevant decision was made in April t985 that is when the clock began to run on any possible grievance. The next arguable date would be May 1986. This would be when the Grievor was successful in his application for a classified position and was advised that he would begin with probationary status. The next arguable date for grieving would have been November 1987 when the Grievor inquired into the effect of his previous position and was credited with seniority. 7 This was further evidence to him that he'had another g.r. ounds for complaint: see Article 25-SENIORITY"(LENGTH OF CONTINUOUS SERVICE). The seniority right accumulates. from the date of appointment to classified status: see: s. 25.1 (a). 25.1 An employee's length of continuous service will accumulate upon completion of a probationary period of not more than one (1) year and shall commence: (a) from the date of appointment to the Classified Service for those employees with no prior service in the Ontario Public Service; or (b) from the date on which an employee commences a period of ubroken, full-time service in the public service, immediately prior to appointment to the Classified Service; or (c) omitted "Unbroken service" is that which is not interrupted by separation from the public service; *'full-time" is continuous employment as set out in the hours of work schedutes for the appropriate classifications; and "part-time" is continusous employment in accordance with the hours of work specified in Article 61.1 Counsel for the Ministry submits that recognition of his previous service should have meant that he should have raised the issue of pay at that time. Again there is an objective element in determining that time is running. Finally under the timeliness issue, the Ministry argues that the Grievor learned in- June t989 when he spoke to the union stewards as he testified to that there was an issue. He should at that point have gone to his supervisor as the first step of the grievance and the 20 days would be running. So even if a subjective test is applied, he missed the' 20__~day period at that time. Counsel for the Ministry further argued that even within the subjective test, reasonableness is required: .see: Bleach & Ronkai and MCS (GSB # 20/88); _Goheen and Min. of Ed (GSB #321/82); Graham and MOT (GSB # 981/86); Lam and MOT (GSB # 377/83); Orr and MOH (GSB # 138/84) and Agnew and M__O__S_ (GSB # 236/88) In the alternative to the timeliness argument, the Ministry Counsel submitted that on the evidence that it could no longer show why the Grievor was put on contract originally. It is her submission, that the Employer is now prejudiced by the delay in 8 bringing the grievance in that it does not know whether the Grievor could have applied on a permanent posting after he was on contract. This could affect the remedy in-a Beresford line argument. In support of her argument on laches, Ministry Counsel referred the Board to its decision in Clements and LCBO (GSB # 112/80). Mr. Cavalluzzo for the Union took the position that the Grievance Settlement Board has no jurisdiction to apply the doctrine of laches: there is no authority in its constituent legislation to give it a right. The staleness of a grievance might affect the remedy available as a practical matter but is not grounds for dismissing a grievance on a doctrine of laches. Furthermore, laches require real evidence of prejudice, not just speculation over whether all the evidence is still available. In any event, the issue is not as Ministry Counsel characterized it as being the issue of why the Grievor was put on contract, but whether under the Beresford line of authority there should have been a position posting. With respect to whether there were postings after 1985, there was no evidence on this preliminary issue presented; the Ministry's own witness was not even asked that. With respect to the timeliness issues raised by the Ministry, Union Counsel referred the Board to its decision in Pierre and MCS (GSB # 492/86); and Singh and MOT (GSB # 2366/87). With respect to Bleach referred to by the Ministry, Union Counsel noted that it did not referred to the rule in Blake and Toronto Area Transit OPerating Authority (GSB # 1276/87) even although it had been decided prior to the decision in Bleach although Vice-Chair McCamus proceeds to distinguish a number of cases including Pierre. But' even if the approach in Bleach is correct, the Grievor in our case is just grieving not under terms of the Collective Agreement, but complex legal issues that were still being argued about at the time of the hearing of this grievancel The Grievor did not know he had a grievance untO-,1989 and the provision of the Collective Agreement says: "first becoming aware ..... "With respect to 1989, the Grievor was told by management that they would look into it; in other words, the Grievor tries informal routes first. In reply, the Ministry pointed out that we may not be able to establish why he was working 40 hours or more. The mere fact that he worked 40 hours or more does not determine by itself whether there is a Beresford type situation; it may fit Group 1. Although the Union has emphasized that it is a Beresford. problem, the grievance is a 9 challenge to the process of how to be brought into the classified service in as much as it challenges th-e:ad~,ise the Grievor received when he was told he had to resign from the classified service to go on contract with the Ministry of Correctional Services; in other words, the Ministry is being challenged on a policy of posting classified positions internally only, which is an Article 4 issue. The Union acknowledges that it will argue that in the alternative. With respect to the time lapse in the summer of 1989, the Employer Counsel argues that once the Grievor approached the Union stewart, he was aware that there was a potential grievance and the clock began to run. REASONS FOR DECISION TIMELINESS ISSUE A maior authority in this area that has to be examined is the Decision in Pierre. At the time the case before us was argued, Pierre was subject to an application for Judicial Review before the Divisional Court. On September 5, 1990, the Divisional Court dismissed that application. The facts in that case are that the Grievor, Veronica Pierre, filed a health and safety grievance claiming that during her regular work as a Correctional Officer at Maplehurst Correctional Centre, she was exposed to a tuberculosis infectious inmate and had to undergo treatment. On October'31, 1984, the Maplehurst authorities had discovered that an inmate had been exposed to T.B. at another institution prior to being transfered to Maplehurst. However, their medical tests satisfied them that he did not have active T.B. Nevertheless, upon the discharge of the inmate, a Hamilton 'respiratologist advised Maplehurst (February 7, 1985) that the former inmate had active T.B. As a result, the Maplehurst Superintendent issued a memorandum to all staff to the effect that sinc.,e a_.~'eleased 'inmate may. have had T.B. during .his incarceration, as a precaution, medical staff would be testing all staff and inmates who may have had contact with him. The Grievor tested positive on the skin test, but the subsequent x-ray showed normal. They did write to notify her personal physician that the Grievor had tested positive on the skin test (i.e. was a Mantoux converter). The Grievor testified that in November, 1985, her personal physician advised her of that and that she should commence drug treatments. She so adVised the Maplehurst Assistant Superintendent and did commence 10 the drug treatments. In November, 1985, she spoke to the Union President and he then spoke to Super. intendent Riley. The Union president satisfied himself that it was "no big deal" but nevertheless advised the Grievor to see a lawyer. Because of unsatisfactory work appraisals, the Grievor went to her Union Chief Stewart on February 25, 1986, and as a result of her belief that this related to the health issue filed the grievance. The Ministry objected that the grievance was out of time. It argued that the Grievor ought to have been aware of her right to fife a grievance following the testing in February or the events in November, 1985. The Union alleged that the Grievor was unaware that the events surrounding her concerns coufd be the subject matter of a grievance until she spoke with Union Representative Brian McMullen in fate February, 1986. At page 14 of the Decision, Vice-Chair Verity states with respect to 27.2.1: What is required on the part of the employee to comply with the mandatory 20 day time limit, is knowledge or awareness that there has been a violation or a possible violation of the provisions of the Collective Agreement. Article 27.2.1 contemplates the knowledge on the part of the employee a subjective concept. Vice-Chairman Samuets makes that point in OPSEU (P. Mitchell and Union Grievance). and Ministry of Government Services, 1614/85 and 1615/85 at p. 6: "Article 27.2.1 establishes a time limit which does not begin to run until the employee first becomes aware of the complaint or difference. And the words 'complaint or difference' refer to 'complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this agreement'. (Article 27.1). in other words, the time does not begin to run until the employee is aware that there is a complaint or difference under the collective agreement. Her complaint or difference in this sense is not being declared surplus, or being laid off, but her feeling that she has not been treated according to the collective agreement." On the other hand, in the filing of union grievances under either Article 27.8.1 or 27.8.2, there is no subjective component. As Arbitrator Brandt observed in OPSEU (Union Grievance.) and Management Board of Cabinet, 1546/85 at p. 5 in referring to the filing of union grievances: "Knowledge or awareness of the violation is not the appropriate basis on which to assess the beginning of the time period." Article 27.8.1 provides for the filing of a union grievance within 30 days "following the occurrence or origination of the circumstances giving rise to the grievanc_e.~'.. Similarly, Article 27.8.2 contains the identical requirement in providing a 60 day time limit for filing a union grievance 'affecting multiple Ministries. tn the instant matter, the evidence is uncontradicted that the grievor first became aware of her right to file a grievance only when she spoke with Chief · Steward McMullen on February 25, 1986. On the evidence adduced, the Board does have some concern with the grievor's testimony that she first learned of the events surrounding this matter in November 1985. The evidence of Mrs. Clark and Mrs Shrader would indicate otherwise. However, the date the grievor learned of the events or circumstances giving rise to her grievance (whether in February or November, 1985) is not the determining factor, The Board finds as a fact that prior to February 25, 1986 the grievor had neither the knowledge nor the belief that her concerns were amenable to resolution under the Collective Agreement. The Board cannot find that the preliminary objection has merit. Accordingly, we do find that the grievance was filed in a timely fashion. The Bleach Decision relied upon by the Ministry in its submissions was subsequent to Pierre and shows an attempt by Vice-Chair McCamus to reconcile what he characterizes as "opposing interpretations of the test to be applfed under Article 27.2.1 "; (see: page 11 of that Decision). The grievances related to a dispute over entitlement to lieu days bf employees whose work assignment would have required them to work on a statutory holiday but who were unable to do so because of compensable work related injury for which they received Workers' Compensation. Two GSB decisions namely, Charbonneau (544/81) and McDermid (366/86) resulted in settling the contract interpretation issue and effective August 5, 1987 the Employer altered its practice to comply. The Grievor, Bleach, filed a grievance on January 24, 1988 with respect to claims for lieu days for work assignments on August 4, 1986, December 26, 1986 and January 1, 1987;'the Grievor Ronkai's claim related to May 21, 1984. The Employer argued that time begins tc~..uq, once.an 'employee is aware of the decision which he or she now . wishes to dispute. In this case, that would be when the Employer decided not to grant lieu days for the statutory holidays in issue. The Union argued that the time does not begin tO run until the employee appreciates that the matter is one that is grievable or potentially grievable under the Collective Agreement. When the Grievor, Ronkai, had originally inquired about a lieu day on returning from WCB, he had been informed that under the Ministry policy he was not entitled to them. Then a fellow employee told him'that he had 12 successfully settred a similar grievance. The Grievor then raised the matter with his supervisor anoF~/hieh advised that it was his view that it was too late to pursue the matter, the Grievor spoke to the Union and a grievance was flied shortly afterwards. B]each's experience was similar. His awareness of the change in policy came about'as a result of a conversation with Ronkai in January of 1988 after which he spoke with the Union and filed his grievance. The Union argued that the time did not begin to run until in Ronkai's case he spoke to MacMillan and in Bleach's case when he spoke to Ronkai. After reviewing the various authorities, Vice-Chair McCamus concluded at pp. 12-13: In our view, an objective approach to the interpretation of Article 27.2.1 ought to be adopted as matter of general principle, provided that a subjective approach may be used in cases where that approach is more appropriate. The critical distinction to be drawn between cases in which the objective approach is appropriate and those where it is not rests on a determination as to whether or not the matter which is the subject of the "complaint or difference" under Article 27.2.1 is one which obviously raises issues related to the administration of the Collective Agreement. Thus, disputes with respect to travel expenses and overtime pay evidently relate to matters that would be provided for in the Collective Agreement. An employee who becomes aware of a "complaint or difference" concerning such a matter, should, in our view, be assumed to realize that this is a matter which he or she could pursue through the dispute resolution procedures of the Collective Agreement. Thus, an employee who is disappointed by an Employer decision with respect to a matter of this kind must, whether or not he or she "subjectively" believes the matter to be potentially grievable, pursue the matter within the time flame stipulated in Article 27.2.t. Any other interpretation of the Agreement would be inconsistent, in my view, with the stipulation in Article 27.1 to the effect that "It is the intent of this agreement to adiust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this agreement..." and its underlying rationale._ r --~-'..--Were this interpretation not adopted as a general matter, the Employer could regularly find itself in the following circumstances. The Employer could adopt an interpretation of the Agreement and plan and administer its affairs, including their budgetary implications, on the assumption that this particular interpretation of the agreement is acceptable to the Union, as evidenced by the fact that it has not been the subject matter of a grievance. Several years, indeed, could pass on this basis only to have a grievance ultimately surface and reveal that the interpretation is not a proper one. tf one adopts the "subjective" approach to Article 27.2.1 in such circumstances, the implication would be that all past conduct would be subject to further grievances on the theory that only after the first grievance succeeded did various individuals appreciate that there had been a violation or possible violation of the provisions of the Agreement. In theory, then, grievances relating to incidents, · perhaps.r-unnLng back over a period of several years, could be the subject of timely grievances. This is a result which we view to be inconsistent with the policy expressed in Article 27.1 concerning finality and expedition in the resolution of disputes. Accordingly, we adopt the view that where obvious matters of contract administration are concerned, an objective test should be adopted in the interpretation of Article 27.2.1. It follows from this that we view the previous Board decisions in Lam, Goheen and Graham as consistent with this approach. On the other hand, there may well be unusual circumstances in which a subjective approach of the kind utilized in Mitchell and Pierre is appropriate. Thus, where the nature of the problem is one which an employee may reasonably not have understood to be a matter covered by the Collective Agreement or relating to its administration, it may be appropriate to delay the running of time under Article 27.2.1 until such time as the employee comes to appreciate that this is the case. In both Mitchell and Pierre, there were grounds on which the Board could have satisfied itself that the grievor in each case had initially reasonably failed to understand the potential applicability of the Collective Agreement to the situation at hand. In summary, then, it is our view that the requirement for the commencement of the running of time under Article 27.2.1 is that the empoyee has a "complaint or difference" with the Employer and has reasonable grounds to believe, in the language of Article 27.1 that the complaint or difference is one which is "arising from the interpretation, application, administration or alleged contravention of this Agreement ..." Where the matter is one which the employee ought reasonably to understand to be a matter of contract administration, the test is an objective one and the time will begin running under Article 27.2.1 at the time when the employee becomes aware of the decision or act of the Employer which adversely or.prejudicaliy affects the employee. Where, on the other hand, the decision or act is one with respect to which the employee can reasonably maintain· that he or she did not understand that a matter of contract administration was involved, a subjective approach to the operation of Article 27.2.1 may., in our view, be utilized ...... We can well appreciate the effort by Mr. McCamus to reconcile .the various decisions-in tf'~: acea.' It is unfortunate that this area has become so clouded, t cannot - help but feel that underlying this confusion is the fact that unlike the general arbitration. taw i.e. the Labour Relations Act, s.44 (6), the CECB Act does not empower the Board to relieve from failure to meet the time limits. Furthermore, since a mandatory interpretation has become encrusted on Article 27, the Board has dealt with the many time limit problems as a cor~tract interpretation issue. The difficulties this involves becomes quite clear in the decision of Vice-Chair McCamus who as we have seen 14 entered into a policy approach to the interpretation of Article 27. Although he agreed with the result in Pi~i'e,'it seems clear to me that he did not adopt the actual reasoning-in - Pierre. He adopts a test of "ought reasonably to understand" and "can reasonably maintain". Those are in fact not the words of a subjective test: they impose the standard of a hypothetical reasonable grievor. But Vice-Chair Verity in Pierre speaks of "'knowledge on the part of the employee-a subjective concept". Mr. McCamus speaks of unusual circumstances before applying a subjective test. Mr Verity, however, does not make such a distinction; what Mr. Verity relies on is the time the Grievors learned that a grievance might succeed. In other words, what Veronica Pierre became aware of was that she might have a health and safety grievance once she spoke to the Chief Steward about her unfavourable work appraisals. Interestingly enough she did not grieve the unfavourabfe work appraisals directly. As I understand the reasoning in Pierre, it is awareness that the dispute is arbitrable under the collective agreement i.e in the sense that there is an arguable case. This is to be contrasted with the language of union grievances under s. 27.12.1 where it is "the occurrence or origination of the circumstances giving rise to the grievance" which starts the clock running. But there is no reference in section 27.2.1 to "ought reasonably to understand" or "reasonably maintain". Nor frankly do I find such a gloss compatible with the actual wording of section 27.2.1. In that respect, I find Mr. Verity's language truer to the actual wording of the section. In the Bleach grievances, there was the issue that the policy of the Employer had been declared in violation of the Collective Agreement by the Board in other grievances and that the Grievors had not learned of that until sometime after the events on which their grievances were based. The policy changed as a result effe~-August 5, 1987..The .Grievors claimed for days prior to that change in policy but after the original Charbonneau (544/81) decision. Mr. McCamus applied section 27.2.1 to the time at which the Grievors were denied the lieu days they claimed rather than to the time that they learned that they had an arguble case under the Collective Agreement because of the GSB decisions. I cannot see that this is compatible with the approach taken by Mr. Verity in ~ tt seems to me as well that the concerns that Mr. McOamus had would have been better examined under the question of remedy. In this 15 regard, I would refer the parties to my own reasoning in Speer and Ministry of Education 1221/88. In th~context of remedy or estoppel possibly, it is, I believe, more open to the Employer to raise questions of whether the Grievor ought to have known whether the issue was grievable and whether old events that preceded a change in interpretation of the Collective Agreement can be compensated. In that context there is more scope for submissions on policy analysis and discretion than by the use of what i feel are, to say the very least, strained interpretations of the wording of the Collective Agreement. The other Decisions referred to by the parties are subsumed within the analysis in Pierre and Ble ca~.h. I would note that since argument in this case, Pierre has been followed by Vice- Chair Dissanayake in Gordon and LCBO 48/89 which cites the Divisional Court's endorsement on Pierre upholding a subjective test. With respect to a. conflict between Board decisions, see my preliminary decision in Bressette and Ministry of Health 1682 /87. I am satisfied that Pierre correctly interprets section 27.2.1 and Bleach manifestly does not. Applying the Pierre approach to our own grievance, to the extent that the Grievor relies on a Beresford/Bressette analysis, he did not apparently have knowledge that he could argue that at least until he overheard discussions about it between the Union officials in June 1989 if even then. Indeed, the Bressette decision did not issue until June 29, 1989. t must also agree with Mr. Cavatluzo's argument that the issues are so complex that lawyers disagreed about the result, not to mention the Board itself in its decisions. tn fact, even if the analysis made by Mr. McCamus should be correct, the Grievor could not reasonably be expected to have known that he had an arguable grievance under the Beresford line of cases until someone active in labour relations advised him of it. Mr. Cavalluzzo ahso-~dmitted that- he might., have a separate argument about .posting requirements. Here again, there is not sufficient evidence to uphold the Emplo~/er's section 27.2.1 argument since on this evidence the Grievor had no real understanding that he had an arguable posting grievance until June 1989. The earlier decision by the Employer to grant limited seniority rights did not and would not necessarily give him the knowledge that he had a basis for a grievance on wider rights. In fact, during the argument of this grievance, no real exploration of the nature of the posting, argument as 16 a separate issue was explored. If the Ministry has further objections, it can still presumably rai-,~e th'ese as they reiate to remedy. Limits on the remedy available to the Grievor can more properly be dealt with along with the merits of the grievance. The final timeliness issue raised by the Ministry was that once the Grievor learned in June from the Union that he might have a grievance, the clock began to run. The Ministry's probtem here is that the Grievor approached management and as facts clearly show they said they would get back to him. Only when the Grievor finally got concerned about the lack of response and spoke again to Taylor-Batiste did he decide to approach his immediate supervisor in what all the parties agree was the section 27.2.1. step. I have no doubt that when management told the Grievor that they wou~d get back to him on it, the clock did not run. Informal approaches to dispute resolution are certainly to be encouraged and if management holds out a hope of resolution, it cannot then claim the clock was running. For another example of the policy of encouraging the use of internal discussions without recourse to the grievance procedure see: Kelusky and Ministry of Transportation 1098/86 which deals with relief from the 20 day rule on the remedy. Under such circumstances, the clock only starts running when either management specifically denies the request or an unreasonable amount of time goes by so that it becomes incumbent on the employee to act. With respect to this Grievor neither of those events happened and he acted promptly in starting the procedure under section 27.2.1. LACHES Neither the evidence nor the argument was very extensively developed on the laches issue. The Ministry argued that ,t cannot now show whether there were any vacancies in t~,e-.olassified service in 1985/6. But. I am not satisfied with that evidence. It is just the opinion of the Ministry witness. She d~d not even indicate whether any search had been made of the Ministry's records to determine what could be shown for the time period. And indeed, this argument was made in a vacuum. Without actually hearing the evidence and arguments on the merits I really have no way of knowing whether any real basis for an argument based on laches could be developed. Accordingly, on this record, I ~,~ ,~uL yuh,y Lu u~,,,,~ L~ grievance on a -'-':-; .... N~ ~,,,,, ,~l y motion on L[,,~t u=~,~. In t,,,o 17 regard, the Board in Clements and LCBO recognized that the Board has a discretion with regard to whether laches should decided before or after the hearing of the merits of the grievance. Furthermore, the Union argued that this Board has no jurisdiction to even entertain an argument .based on laches. No cases, however, were cited by either side on that point. Accordingly, I am dismissing the preliminary objections without prejudice to either side to reargue the laches issue at the end of the case and to make what submissions they wish with respect to the remedies sought. Accordingly, the preliminary objections are dismissed subject to what has been stated in this Decision and the matter is remitted to the Registrar to set a date for a continuation of the hearing by this panel. Dated at Toronto this 12t~ay of ^t~:~.t, 199t .... THOMAS H. WILSON Vice-Chair S:;Urbain Member · ' Dt Walkinsha~ Member' 1. The reference here is to what I shall refer to as the remedy stage of the Beresford - Wagoner grievances. The remedy decision delivered by Vice - Chair Samuels was the subject matter of an application for judicial review. At' the time of the hearing of this grievance, that application was pending. The Divisional Court has since dismissed that application and the time for leave to appeal has expired. 2. The reference here is to the original set of decisions dealing with the appointment of unclassified staff to positions which the Union alleged were more properly classified. Beresford was the original decision delivered by then Vice-Chair Mitchnick; Hicks (2563/87) distinguished Beresford but was not followed in Bressette, which followed the original Beresford decision. The original Beresford decision was also upheld by the courts.