HomeMy WebLinkAbout1991-1257.Lumley.93-02-23 1257/91
IN THE ~TTER OF ~ ~T~TION
Under
THE C~0~ E~P~YEES COLLECTI~ ~GAINING ~CT
~efore
THE ~RIE~CE SETTLE~
. OPS~U (Lumley)
Gr~evor
- a~
The Crown in Right of Ontario
(~inistry of Correctional 'Se~ices)
~loyer
BEFO~: M. Gorsky Vice-Chai~erson
J. Car~thers Me.er
M. O'Toole Me.er
FOR THE K. Whitaker
~ Counsel
Ryder, Whitaker, Wright & Chapman
Barristers & Solicitors
FOR T~ S. Raymond
ZMPLOYER Counsel
~icks, Morley, Hamilton, Stewart & Storie
Barristers & Solicitors
~EARING August 24, 1992
2
BACKGROUND
This grievance arises out of Mr. Lumley's having been denied
an interview with respect to a management deve]opmental assignment
at Metro East which 5e had applied for in the fa]] of 1990.
In response to his application of October 29, 1990, J.A.
Wallan, Regional Personnel Administrator, Metro Region, sent him a
letter dated November 30, 1990 (Exhibit 3), which is as follows:
Thank you for your interest shown in applying for the
above noted program,
The personal information contained in your application/
resume is collected under the authority of the Public
Service Act, S.4(c), .So6(1) and S.24 and was used to
assess your qualifications, All material relating to
your submission was carefully analyzed by the program
committee. You will hopefully have been verbally advised
by now that you were, unfortunately, not selected to
proceed to the next phase of the program.
We realize that you will find this decision
disappointing. We hope that you will not let it deter
you in pursuing your career objectives. On behalf of the
program committee, I would like to thank you once again
for your interest in this program. We also wish you the
best during the coming Holiday Season.
In response to a request for particulars made by Julia
Ravenscroft, Grievance Administration Officer, Grievance
Administratioa & Negotiation, for the Employer, Mr, Whitaker,
counsel for the Union, provided the particulars which ~re set out
in Exhibit 8:
I have now met with Mr. Lumley and can provide you with
the particulars which you have requested.
1
DECISION
THE GRIEVANCE
The Grievor, Fernando Lumley, was at all material times a
Correctional Officer 2, employed by the Ministry of Correctional
Services at the Metropolitan Toronto East Detention Centre ("Metro
East"), and he has a seniority date of January 4, 1982.
On June 19, 1991, Mr. Lumley filed a grievance (Exhibit 1), as
follows: "I grieve that management violated article A of the
collective aqreement," and he requested by way of settlement: "1.
Compensation for economic and non-economic losses. 2. Be provided
with developmental assignments commensurate with my education and
experience. 3. External investigation of complaints to Supt.
Doherty June 5, 1991."
Article A of the collective agreement, contains the heading:
"NO DISCRIMINATION/EMPLOYMENT EQUITY," and is as follows:
A.1 There shall be no discrimination practised by
reason of race, ancestry, place of origin, colour,
ethnic origin, citizenship, creed, se~, sexual
orientation, age, marital status, family status, or
handicap, as defined in section 9(i) of the Ontario
Human Rights Code (OHRC).
A.2 It is recognized that in accordance with section 13
of the OHRC, the Employer's employment equity
program shall not be considered a contravention of
this article.
In the fall of 1990, Mr. Lumley applied for a management
development assignment at Metro East, There were a
number of other employees in addition to Mr. Lumley who
applied for this position including Audrey Williams and
Vince Daly. Ms. ~i]]iams, Mr. Da]y and M~. Lumley are
black. None of the black applicants were granted
interviews and three candidates who were awarded the
developmental assignment, Rose Buhagiar, Dave McKinnon
and Lee Anne Cannon are all white.
Mr. Lumle¥ was troubled by the fact that he was not
granted an interview despite his good performance record
and education. After pursuing the issue of why he was
not granted an interview nor considered for the position
past the initial screening, he was informed by Stephen
Small that the decision was based on a Memorandum which
was sent to the Selection Committee by Mrs. D. Doherty,
Superintendent. I have enclosed a copy of the
Memorandum. The content of the Memorandum i~
inconsistent with Mr, Lumley's most recent PPRs and we
say that in the circumstances, Mr. Lumley has been
discriminated against on the basis of his race contrary
to Article A.1 of the Collective Agreement.
It is my intention to summons the material submitted by
all candidates who applied for the developmental
assignment, all documents relating to the selection
procedure, interviews, and the personnel fi/es of all
candidates, i would appreciate it if you could advise me
whether or not the Ministry is prepared to provide this
information without the necessity of a summons.. I would
ask that you advise me by Friday November 15, 1991 as to
whether or not the Ministry is prepared to produce this
material. If I have not heard from you by that date I
will be issuing a summons to the Deputy Minister for the
documentation. Please let me know if there is any other
information I can provide you ~ith about the nature of
the Union's case.
The memorandum referred to in Mr. Whitaker's letter, is dated
November 19, 1990, and is as follows.:
Although Mr. Lumley has applied for a developmental
assignment, I have not seen any indication from Mr.
Lumley's behaviour at Metro Toronto East Detention Centre
that he has sufficiently achieved mn~g~ment capahiJities
or even potential for leadership.
Mr. Lum]ey has been enrol ]ed in the Business
Administration Program at York University. Once he
completes this course he would be well advised to pursue
business administration opportunities through the
competitive process.
By letter dated November 15, 1991, Ms. Ravenscr0ft
acknowledged receipt of Exhibit 8, and, in responding to Mr.
Whitaker's request for documents, statedd
'In response to your request for documents, the ministry
is prepared to disclose the following documents prior to
the hearing date:
· The documents pertaining to the prescreening
process
· The scoresheets used in prescreening the
applicants
· The material submitted by those candidates who
were selected for an interview
At the commencement of the hearing, counsel for the Union
requested an adjournment. The reason for the request was based on
a determination that had been made by the Union in July of 1992
that it would not be proceeding with new cases in the months of
August, October and December of 1992 where it had retained outside
counsel. We were advised that this determination was made as part
of the fiscal restraint policy of the Union by the Union's
grievance department, and that, in the noted months, new cases
would only be proceeded with before the Grievance Settlement Board
where the interests of the Union were being represented by
grievance officers employed in the Union's Grievance Department.
5
After hearing argument from both parties on this issue, the
Board ruled only that it would not be appropriate to grant an
adjournment in the circumstances.
Counsel for the Employer then proceeded to raise two
objections to arbitrability, notice of which had been furnished to
the Union prior to the previous date scheduled for the hearing on
May 23, 1992. These objections were as follows: 1. That the
grievance was Out of time and hence inarbitrable under the
provisions of the Crowa EmplQyees Collective Bargaining Act.
That the grievance was not arbitrable by virtue of the provisions
of s.18(l)(b) of the A~/L, which is as follows:
18. - (1) Every collective agreement shall be dee~ed to
provide that it is the exclusive function of the employer
to manage, which function, without limiting the
generality of the foregoing, includes the right to
determine,
(b} merit system, training and development,
appraisal and superannuation, the governing
principles of which are subject to review by
the employer with the bargaining agent,
and such matters will not be the subject of collective
b'argaining nor come within the jurisdiction of a board.
EVIDENCE
The only viva voc9 evidence given at this preliminary stage
was that of the Grievor, who testified:
6
1. After receiving Exhibit 3 from Mr. Wa]len, early in December
of 1990, he attended on the Area Regional Personnel Administrator,
Jim Morris, to express his disappointment at not being selected to
proceed to the .next phase of the selection process, and to
endeavour to obtain more information as to why.he had been
"bypassed."
Mr. Morris indicated that this information would better be
obtained from Mr. Wallen, who was the chairperson of the selection
committee. Mr. Morris did refer to the large number of
applications received and noted that a significant number of
applicants had not been invited to be interviewed.
2. He (the Grievor) tried to reach Mr. Wallen by telephone over
the next few days and was able to reach him on the third try, Mr.
Wallen indicated that he would send' a letter to the Grievor in
response to his inquiries, but did not furnish any other
information over the phone.
3. Mr. Wallen directed the G~ievor to Steve Small, who was said
to have evaluated the Grievor's application and upon whose
recommendation the Grievor was not selected to proceed to the next
phase of the selection process.
4. After the above noted telepho'ne conversation with Mr. Wa~len,
the Grievor tried, unsuccessfully, to reach Mr. Small by telephone.
?
He thereupon attended personally on Mr. Small who said that he was
too busy to see him at that time but requested that the Grievor
arrange to see him accompanisd by a Union ~epresentative.
5. The Grievor emphasized that any delay in meeting with Mr.
Small was as a result of the latter'~ indicatin9 his lack 6f
immediate availability. In emphasizing that it was irrelevant to
him whether he was accompanied by a Union representative, the
Grievor indicated that his agreement.to meeting with Mr. Small
along with a Union representative was solely based on Mr. Small's
insistance that this be done. The Grievor also indicated that he
made at least three attempts between December of 1990 and January
of 1991 to arrange a meeting with Mr. Small, but to no avail.
6. As a result of his lack of success in obtaining a satisfactory
explanation from the Employer for not qranting him an interview,
the Grievor made a decision to obtain assistance from Alvin
Curling, the t~n MPP for Scarborough North. We did not have
before us the correspondence that passed between the Grievor and
Mr. Curling nor Mr. Curling's letter to Mr. Wallen, however, the
Union filed, as Exhibit 5, a letter of March 6, 1991 to Mr. Curling
from Mr. Wallen, which is as follows:
Thank you for your February 14, 1991 letter on behalf of
Mr. Lumley, one of your constituents, regarding his
application for the Metro Region Management Development
~rogram.
on November 30, 1990 I wrote to Mr. Lumley advising him
that he would not be granted an interview for the
developmental program. I am quite prepared to provide
Mr. Lumley with a detailed explanation as to why he was
not selected. All he needs to do is contact the
undersigned. I have taken the liberty of forwarding a
copy of this letter to Mr. Lumley in order that he be
aware of the process to follow.
Thank you for bringing this matter to my attention.
7. Mr. Lumley, pursuant to Exhibit 5, attempted to arrange a
meeting with Mr. Wallen, sometime in March of 1991, but Mr. Wallen,
'once again, directed him to Mr. Small,
8. Mr. Lumley again endeavoured to arrange a meeting with Mr.
Small but was told by the latter that he had a "tight schedule" and
would try to meet with him late in May of 1991,
9. The G~ievor tried to meet with Mr. Small on three or four
occasions and on the one occasion that was available to Mr. Small,
the Grievo~ was unable to obtain Union representation as he had
been requested to do by
10. The G~ievor met with Mr. Small late in May of 1991 (he could
not remember the exact date) when he said that M~. small gave him
two documents supposedly relating to why he had not been granted an
interview.
9
11. The meeting with Mr. Small was said to have taken place in Mr.
Small's office at the Metropolitan Toronto East Detention Centre
and lasted less than ten minutes.
12. At the meeting Mr. Lumley informed Mr. Small that he had been
informed by Mr. Wallen that his being rejected from the program was
as a result of submissions received by the selection committee,
Metro Region Management, Development Program, from Mr. Small.
13. Upon receiving this advice, Mr. Small went to a cabinet in his
office and pulled out the two documents, aSove referred to. One of
these was the Grievor's current evaluation, the other being the
letter from Ms. Doherty to the Selection Committee, dated November
19, 1990, set-out, above, at pp. 3-4.
14. As he handed the letter written by Ms. Dohert¥ to the Grievor,
Mr. Small said: "You're not going to like this." The Grievor
stated that he said nothing in return except "Thanks" and left Mr.
Small's office.
15. The Grievor stated that as he was then too upset to speak
further to Mr. Small, he prepared a memorandum {Exhibit 4), dated
June 5, 1991, addressed to Ms. Doherty and Mr. Small, ·which he said
he regarded as a "verbal grievance." Exhibit 4 is as follows:
Subject COMPLAINTS AGAINST THE MINISTRY OF
CORRECTIONAL SERVICES
10
1. I am charging that there was discrimination - very
probably racially motivated, in the recruitment and
selection of candidates for the Mana§ement
Development Program.
2. I am charging that you abused the power vested in
your office and carried out acts of irregularities
while recruiting and submitting names of candidates
for the Management Development Program.
3. I am charging that you violated the Ministry and
the Public Service guidelines and submitted
prejudicial statements about me to the selection
committee, Metro Region, Management Development
Program.
4. I am charging that you showed no interest in my
application; you did not provide me with even the
courtesy of an interview to find out what
contributions I could have made to the Ministry.
(Incidentally at the time of the competition I was
studying Personnel Management at York University
'and was learning how I should have been treated).
5. I am charging that you the Superintendent and the
Senior Assistant Superintendent (Corrections) have
set your own agenda, to derail some of the changes
the present and immediate past governments have
been trying to implement.
6. I am charging that you have created unofficial
file(s) on me without my knowledge or consent
contrary to the guidelines of'the Public Service.
7. I am charging that there have been too many
instances of differential treatment since you and
the Senior Assistant Superintendent (Corrections)
assumed your posts here at the Toronto .East
Detention Centre.
16. A brief meeting was held between the Grievor and Ms. Doherty
a few days after he delivered Exhibit 4 to her, the exact date not
being given, nor 'were we informed as to who arranged for the
meeting. However, at the meeting Ms. Doherty asked the Grievor if
he felt discriminated against. According to the Grievor, Ms.
Doherty did not wait for his reply but said to him: "I am a woman
and I am peeved that you would suggest that you did not get the
development position because of discrimination." According to the
Grievor, Ms. Doherty was angry whefn she spoke to him and after
making the quoted statement, asked him to leave her office. He
stated that, in the circumstances, he did not have an opportunity
to respond to Ms. Doherty.
17. According to the Grievor he first came to the conclusion that
there had been a violation of article A.1 based on "discrimination
practiced by reason of race, ancestry ... colour, ethnic origin ...
as defined in section 9{1) of the Ontar%o Hu~a~ Rights CQ~ (OHRCk"
between the date, in ]ate May of 1991, when he was given the two
documents referred to at his meeting with Mr. Small, and June 19,
1991 when he filed his grievance. He regarded the documents as
representing very unfair negative commentary with respect to
himself. His conclusions were reinforced a~ a result of
conversations he had with two other black candidates for the
development program position who were similarly upset 'because of
their perceptions that they had been discriminated against. He
be]ievad that his conversations with the other black candidates had
taken plac~ between May 31, 1991 and June 5, 1991, the latter date
being the date of Exhibit 4.
18. Mr. Lumley stated that he first became aware of the existence
of article Aol of the collective agreement between May 31 and June
12
5, 1991 when it was brought to his attention by the President of
his Local.
19. In cross-examination, Mr. Lumley indicated that, based on the
statements contained in paragraph 1 of Exhibit 4, he was of the
opinion that he had been discriminated against by June 5, 1991 and
not, as he had earlier, testified, between June 5 and June 19, 1991.
This is because Exhibit 4 is dated June 5, 1991.
20. Further in cross-examination, Mr. Lumley stated that he
believed that he had spoken to Mr. Curling in January of 1991 and
had told him, at that time, that he suspected that he had been
discriminated against by virtue of his non-selection for an
interview for the development program position. He also
acknowledged that he told Mr. Curling that he was aware, based on
his discussions with Derek Miller, the Union President, that he
could grieve his failure to be appointed to the development program
position.
21. Further in cross-examination, Mr. Lumley testified that prior
to his speaking to Mr. Small or Mr. Wallen he had spoken to a Union
steward, Mr. McKinnon, and to Mr. Miller concerning his perceptions
that he was being discriminated against because of his race,
ancestry, colour, or ethnic origin, which converstaion took place
shortly after he spoke to Mr. Curling. The Grievor stated that he
had spoken to representatives of the Union on two occasions in
13
January and February 1991, at which times he informed them that he
suspected that he had been denied an interview for prohibited
discriminatory reasons. He believed that the Union president at
that time told him about the applicability of article A.1. He
later stated that he might have received this information in June
of 1991, but acknowledged that in January of 1991 he had told Mr.
Curling that he suspected he was being discriminated against, but
that, at that time, he had no tangible proof in support of his
suspicions. It is likely that his meetings with the Union
representatives took place in January and February of 1991, as he
testified in cross-examination that the meeting with Mr. Curling in
January of 1991 took place around the same time as his meetings
with the Union representatives.
A~GUMENT FOR THE EMPLOYER ON THE PRELIMINARY OBJECTION BASED ON
LACK OF TIMELINESS
1. Counsel for the Employer relied on the fact that the Grievor
had notice of his not being selected for an interview shortly after
November 30, 1990, when he received Exhibit 3, and only filed his
grievance on June 19, 1991. This represented a six and a half
month time lag.
2. Counsel for the Employer relied on the provisions of articles
27.1, 27.2.1, 27.2.2 and 27.3.1 and 27.13, which are as follows:
27.1 it is the intent of this Agreement to adjust
as quick]y as possible any complaints or
14
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 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.
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.
3. Counsel for the Employer relied upon Gembora, 930/89
(Dissanayake), where the Board stated at pp.2~3:
It is now well established by Awards of the
Grievance Settlement Board that the time limits specified
in Article 27 of t~e Parties' Collective Agreement are
mandatory in nature and not directory. See Keeling and
Ministry of Transportation 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 ~omplaint
or a difference shall first discuss the complaint
or difference with his supervisor within twenty
15
(20) days of first becoming aware of the complaint
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.
ARGUMENT OF THE UNION WITH RESPECT TO THE TIMELINESS OBJECTION
Counsel for the Union argued that:
1. The twenty day period provided for in article 27,2.1 of the
collective agreement within which the Grievor must discuss his
complaint or difference with his supervisor does not start to run
until the Grievor has formed a belief that he has a complaint or
difference. It was submitted that the Grievor did not have a basis
for concluding that he was being discriminated against contrary to
article A.1 until he received the documents from Mr. Small late in
May of 1991.
2. Reference was made to the candour of the Grievor during cross-
examination when he acknowledged the possibility of his being
aware, in January of 1991, about the time he spoke to Mr. Curling,
that his failure to obtain an interview was based on racial
16
discrimination by the representatives of the Employer. However, we
were urged to find that it was not until the Grievor had access to
the two documents furnished by Mr. Small in May of 1991, and had
the benefit of considering his conversation with the two black co-
workers referred to, that he had a sufficient basis for arriving at
the conclusion that his rights under article A.1 had been violated
when he was denied an interview.
3. We were asked to find that the belief required in article
27.2.1 was an actual belief, as the words did not read: "An
employee who~ought to believe," and that the language employed in
the article ought to be given its plain meaning. We were asked to
find that the plain meaning requires a subjective test rather than
an objective test with respect to an employee's belief.
4. Reference was made to Voron.ica Pierre, 492/86 (Verity) where
the Board stated at pp.14-15:
The language of the Collective Agreement appears to
provide two quite separate and distinct procedures for
the filing of individual grievances on the one hand, and
the filing of union grievances on the other. In
individual grievances, Article 27.2.1 states that the
employee "who believes he has a complaint or a
difference" shall raise it with his supervisor "within 20
days of first becoming aware of the complaint o~
difference" (emphasis added).
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 Samuels makes the point in OPSEU (p. Mitchell
17
and Union Grievance) and the 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
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
OP~EU ~Union Grievance) and Management Board of Cabinet,
1546/85 at p. 5 in referring to the filin9 of union
grievances:
"Knowledge or awareness of the violation is not the
appropriate basis on which to assess the beginning
of the time period,"
5. Reference was made to Ca~eron,' 2174/87 (Draper), where the
Board stated at p.l:
In our interim decision of July 20, 1988, we ruled
that the disposition of this case must await the decision
of the Divisional Court on the application for Judicial
Review of the Board's decision Pierre, 492/86, a case
which also called for an interpretation of Article 27.2.1
of the collective agreement. The Court's decision, which
upholds the Board's decision, has now been reported:
Ontario (M~rtistry of Correctional Services) v. O.P.S.E,U.
[(1990),] 74 O.R. (2d) 700.
6. Further, at pp.2-3, the Board stated:
The decisions of the Board and the Court in pierre
confirm that the crucial time, for the purposes of
Article 27.2.1, is that at which the employee first
18
becomes aware that a complaint or difference exists under
the collective agreement and of the right to take steps
to resolve it in accordance with the grievance procedure.
The time within which the employee must act begins to run
from the time when, in fact, he becomes aware of the
complaint or difference.
7. It was also submitted that the twenty working days referred to
in article 27.2.1 where, by virtue of article 27.14, "exclusive of
Saturdays, Sundays and designated holidays." The time was said to
run from May 31, 1991 when the Grievor is supposed to have attended
upon Mr. Small and received the two documents referred to. In
fact, the Grievor was unable to give the exact date of the meeting,
but based on his recollection of when he sent Exhibit 4 to Ms.
Doherty, we are prepared to find that the meeting took place on May
31, 1991, and if the position of the Union as to when time starts
to run is accepted, the 9rievance would have been filed in time.
8. It was also argued that even if the grievance was not filed in
time and. was deemed to be withdrawn pursuant to article 27.13 of
the collective agreement as not having been "processed within the
time allowed or has not been processed by the employee or the union
within the time prescribed~" such failure had been waived.
9. Reference was made to Exhibit 6, being a letter dated Ju~y 19,
1991, addressed to the Grievor, from D. Cooley, Acting Regional
Manager, Metro Region for the Employer, being the stage 2 reply in
accordance with article 27.3.3 of the collective agreement, which
is as follows:
19
In accordance with Article 27.3.3 of the Collective
Agreement, a meeting was held with you and your
representative on Tuesday, July 16, 1991 to hear your
grievance which states:
"I grieve that Management violated Article A of the
Collective Agreement."
The settlement desired states:
"(1) Compensation for economic and non economic
losses.
(2) Be provided with developmental assignments
commensurate with my education and experience.
(3) External investigation of complaints to Supt.
Doherty June 5, 1991."
At the hearing your representative raised a preliminary
objection to the designation of myself to hear this
grievance, and for Mr. J. Morris to assist. At that
point, I undertook to discuss the concerns raised with
the Regional Director within seven days.
I have now discussed the matter with the Regional
Director. He indicates that both myself and Mr. Morris
are appropriate designations to hear.this .grievance at
Stage 2 and did not consent to change this designation.
Therefore, since both you and your representative refused
to present any evidence at our meeting of July 16, 1991
I have no option but to deny your grievance at this
stage.
10. It was submitted that the grievance was denied at this stage,
and there was no reference to an objection to the processing of the
grievance based on a !ack of timeliness.
11. Reference was also made to a letter dated October 17, 1991,
from Ms. Ravenscroft to Lester Yearwood, a grievance officer with
the Union, requesting certain particulars, where no mention was
made of the Employer's objection based on timeliness. This letter
20
was not filed with us but no objection was taken to its alleged
contents.
12. Reference was also made to another letter written by Ms.
Ravenscroft to Mr. Whitaker, which letter is dated October 31,
1991, which was written after she had received no reply from Mr.
Yearwood. In that letter, no reference was made to any objection
based on a failure on the part of the Grievor to comply with the
time limits in article 27. Although the letter of October 31, 1991
was not filed with us, there was no objection takem to its being
referred to or to the accuracy of its alleged contents.
13. Mr. Whitaker wrote to Ms. Ravenscroft on November 2, 1991
responding to her request for particulars.
14. On November 15, 1991 Ms. Ravenseroft again wrote to Mr.
Whitaker, which letter, in part, indicates which documents she was
prepared to disclose, however, there was no reference to any
objection based on a lack of timeliness.
15. Reference was also made to a letter dated May 20, 1992, from
Mr. Raymond to Mr. Whitaker, being part of Exhibit 7, where an
objection to arbitrability is raised:
Please be advised that I intend to 'make a
preliminary objection at the commencement of the
proceedings that the Grievance Settlement Board is
without jurisdiction to hear this matter. The basis for
my objection is that the selection for the Management
Development Program is outside the ambit of the
21
collective agreement and therefore the Board has no
jurisdiction to hear a grievance arising out of the
selection of candidates to participate in that program.
16. Reference was also made to a further letter from Mr. Raymond
to Mr. Whitaker, dated May 25, 1992, also being part of Exhibit 7,
where Mr. Raymond indicated:
As a further matter, please be advised that I intend to
make a further preliminary objection at the commencement
of proceedings that this matter is inarbitrable as the
time limit specified in the collective agreement between
the parties have not been adhered to.
17. It is on the basis of the steps taken by the Employer to deal
with the grievance, without raising its objection based on
timeliness, that such an objection was said to have been waived.
18. Counsel for the Union relied upon ~barakan, 1978/86
(Kirkwood), where a preliminary objection was raised by the
employer disputing the Board's jurisdiction based on. the union
having referred the grievance to the Board for hearing beyond the
mandatory time limit set out in article 27.4 of the collective
agreement. At pp.3-5, the Board stated:
The Board finds that the application which was made
by the union on March 2, 1987 for a hearing, was grossly
beyond the time limits set out in article 27.4 and the
employer was entitled to successfully make its objection
that the Board would have no jurisdiction because of
Article 27.3, 27.13 and 27.16 unless it could be found
that the Ministry waived the time limits by its actions
and omissions. Other cases which have come to the
Grievance Settlement Board have applied these articles of
the collective agreement in the same manner.
The cases of ~ and McI~aac, Grievance Settlement
Board, #742/83 and 24/84 and the ~ case, Grievance
Settlement Board #377/8 clearly support the proposition
22
that the time limits set out in Article 27.3 are
mandatory, and by virtue of Article 27.13 the grievance
would thereby be considered to be withdrawn if it has not
been processed within those mandatory time limits. The
Board does not have the jurisdiction under Article 27.16
to enlarge the time limits. However, contracting parties
themselves may waive the mandatory time limits in the
collective agreement (~nderson, Grievance Settlement
Board, #1483/84 (G. Brent;). This can be done either by
express agreement or as Gall Brent states in that award,
at page 5:
"By the action of the "innocent" party in failing
to object to the procedural irregularity in a
timely fashion. We believe that at page 210 of
Collective Agreement Arbitration in Canada
Professor Palmer correctly summarised the situation
when he wrote the following:
Like estoppel, "waiver is a legal barrier to
the exercise of the rights in a particular
case, erected by the conduct of (sic) words of
the parties". Conduct which has been held to
amount to a waiver includes: allowing a
grievance to go through the grievance
procedure; failure to object at the first
opportunity to the grievance procedure;.., and
an attempt to settle the grievance. Waiver
can also be by verbal agreement. The right to
object at a later stage can be retained by a
statement to that effect at the first
opportunity or by a timely objection, even
though it is not raised again until the
hearing.
Generally, waiver arises therefore where
it is clearly indicated that one of the
parties does not intend to invoke the
procedural provisions of the collective
agreement. There is no need for detrimental
reliance by the other party... The onus of
establishing waiver is on the party alleging
it".
Thereby, the issue is whether or not the "innocent
party", the employer,' acted in such a manner to lead the
union to believe that the objection was waived.
In the McNamara c~se, Grievance Settlement Board,
#272/81, grievances were filed several months after the
time limit and it was clear that the union had failed to
comply with the fifteen day requirement in the collective
23
agreement. The employer did not notify the Registrar
that it was taking the position that the grievances were
inarbitrable because of the failure to comply with the
time limits and discussed the grievance as an "alive"
grievance in the context of the mediation. The union
counsel did not become aware until the day before hearing
that this objection was going to be made. The Board
held, after considering ~e _U.S.W. and CQ~structio~
Products, Canadian Division, (1970) 22 L.A.C. (2d) 125
Brown, that where the defect was apparent on its face and
the employer failed to raise the objection until the
hearing, the defect is waived.
In the case before this Board, the defect was
apparent and the employer conveyed its objection to the
Registrar at its earliest opportunity, but it did not
convey its objection to the union directly until the date
before the hearing. By not saying or communicating any
objection to the union after the employer became aware
that the grievance was being processed for a hearing and
then by participating in the mediation process again
without communicating its objections to the union, the
employer is acting in such a manner as to take the next
step in the 9rievance and lead the union to believe that
there was no objection to the arbitrability of this
grievance. If the employer had intended to resolve t.he
merits of this case, without waiving its right to raise
its objection, the objection should have been raised
prior to the mediation and an agreement reached between
the parties that the mediation was occurring "without
prejudice" to the Ministry raising the time limit
objection at the hearing.
However, therefore as the employer failed to notify
the union as soon as the employer found out that the
grievance was bein§ processed and by participating in the
mediation again without making an objection, the Board
finds that the employer waived the objection to the time
limits which would otherwise have been available to
successfully argue that the Board had no jurisdiction,
The board finds that the union was able to establish
that the employer did waive the time limits by its
actions and omissions and that the employer failed to
show that its objection to the jurisdiction was made in
a timely fashion.
19. It was the position taken on behalf of the Union that the
Employer was aware of the alleged breach with respect to the time
24
limits not having been met and, notwithstanding that awareness, it
continued to take steps in the grievance procedure. It was only on
May 25, 1992, after the postponement of the hearing date scheduled
for May 23, 1992, that counsel for the Employer first raised an
objection with respect to timeliness.
20. Counsel for the Union also relied upon Fun~/Anand, 1798/89, '
104/90 (Stewart). In that case, one of the preliminary issues
raised by the employer related to the timeliness of one of the
grievances. There, the Board stated at pp.10-12:
Mr. McKeown also emphasized that factual matters and
legal arguments, such as timeliness objections, are
fleshed out throughout the grievance procedure. While we
agree in general with this proposition, the timeliness of
Mr. Anand's grievance was clear from the information
available to the Employer at the time the grievance was
filed. Whether or not the timeliness of the grievance
was adverted to, a party to the grievance procedure must
be presumed to be aware of the facts relating to the
timeliness of the grievance. As stated in Town of
Pembroke, 18 L.A.C. 125 (Johnston), a party to a
collective agreement in these circumstances is "fixed
with the knowledge of the timeliness of the grievance".
While the facts of this case are not identical to the
facts of the Anderson and Tharakan cases, it is our view
that the principle expressed in these cases is
.applicable. The principle that these cases establish is
that an objection based on non-compliance with time
limits is waived when there has been a failure to raise
the objection in a timely manner and the taking of a
fresh step prior to raising the objection. In the
circumstances of this case, where the grievance was
discussed at two meetings on its merits, the grievance
was denied in writing on its merits, following the stage
one meeting and the timeliness objection was not raised
until the written reply subsequent to the stage two
meeting, it is clear that a timely objection to the
failure to comply with the time limits of the Collective
Agreement was not made and that a fresh step was taken
prior to the timeliness objection being raised. The fact
that the objection was made prior to the hearing or the
eve of the hearing does not affect the operation of the
25
waiver. Once a timeliness objection has been waived it
cannot be revived by notice.
RESPONSE OF THE EMPLOYER TO THE ARGUMENT THAT TIME ONLY BEGAN TO
RUN ON MAY 31, 1991
1. It was submitted that even if the subjective test relied upon
by the Union is the applicable one, the Grievor had acknowledged in
cross-examination that he had informed Mr. Curling in January of
1991 that he regarded the Employer's action as having been made
discriminatorily because of his race, and that he had indicated
that this was the case to Union repreesntatives close to the time
that he spoke to Mr. Curling, and that he acknowledged that he had
then been informed about his right to grieve. Accordingly, time
was said to have started to run in January of 1991.
RESPONSE OF T~E EMPLOYER TO T~E WAIVER ARGUMENT RAISED BY THE UNION
i. It was submitted that the Employer, in the case before us, did
not have knowledge that the grievance had'not been processed in
accordance with the 'time limits prescribed by the collective
agreement. Reference was made to the Fung/Anand case at p.8.
In that case the Board found that the Employer had know]edge that
the grievance had not been processed in accordance with the time
limits prescribed by the collective agreement, as it had adverted
to the time limits in responding to the grievance. Because of the
26
fact that the employer proceeded to consider the grievance on its
merits, the Board Concluded that it had waived its objection to
timeliness. In reaching this conclusion the Board noted at p. 8 of
its decision that: "... even though the onus is on the Union to
establish the waiver, the onus is on the Employer to show that it
made its objection in a timely fashion"..
2. It was the position of the Employer that the question of when
it "had knowledge that the grievance had not been processed in
accordance with the time limits provided by the collective
agreement" ought to be decided using a subjective test, and it was
submitted that it was not until the date of the commencement of
this hearing that it finally had the evidence that would enable it
to conclude that the grievance was not timely.
3. It was submitted that on the facts of this case, although the
matter was not the subject of objection, the grievance was filed
without the Grievor having followed article 27.2.1. Prior to the
filing of this grievance, the Grievor had not pursued a complaint,
as the facts indicated that after he had received Exhibit 3 his
attendance on Mr. Morris, who was not his supervisor, was not to
discuss a "complaint or difference" but to find out why he had not
been interviewed for the developmental position. His pursuing Mr.
Wallen was, similarly, not to discuss a complaint or difference,
but to find out why he had not been granted an interview, as Mr.
Morris was apparently not in a position to furnish him with the
27
information he sought. When he was directed to Mr. Small by Mr.
Wallen, he pursued the matter further. The evidence indicates that
the purpose of meeting with Mr. Small was to obtain the information
that he first tried to get from Mr. Morris and Mr. Wallen: the
reason why he had not been granted an interview for the
developmental position.
4. Apparently, the first indication that the Grievor had a
complaint or difference, as set out in article 27,1 of the
collective agreement, was when he met with Ms. Doherty a few days
after June 5, 1991, when the Grievor regarded himself as having
presented a "verbal grievance."
5. Counsel for the Employer submitted that if the Union is
correct and a subjective test is to be employed as to when an
employee believes he has a complaint or difference, then, given the
form of the grievance, and, based on the evidence available to the
Employer, it can reasonably be seen that it did not have knowledge
that the time limits prescribed in the collective agreement were
not adhered to until the comm%encement of the hearing.
6. Although the Employer would be aware that the Grievor had been
informed on November 30, 1990, through Exhibit 3, that he had not
been selected to proceed to the next phase of the program, there
was no obvious link between that communication aad the grievance
filed on July 19, 1991, so as to lead to the reasonable conclusion
28
that the Employer was fixed with knowledge that the grievance had
not been processed in accordance with the time limits prescribed by
the collective agreement prior to the commencement of the hearing.
Counsel for the Employer argued that, unlike the case in
Fung/Anand, where the Board found, at p.8, that the employer "had
knowledge that the grievance had not been processed in accordance
with the ti'me limits prescribed by the collective agreement as it
adverted to the time limits in responding to the grievance," on the
facts before us no such conclusion could be reasonably arrived at.
7, Counsel for the Employer argued that the Employer should not
be prejudiced by the fact that it only raised an objection to
arbitrability based on a failure to adhere to the mandatory time
limits in its letter of May 25, 1992; such notice, in the
circumstances, represented a precaution taken without it being
clear that the time limits had not been adhered to. There may have
been a suspicion that this was the case, and the notice was
intended to prepare the Union for an argument along these lines
should the need arise. It was suggested that there was a
difference between knowledge of facts indicating that the time
limits had not been adhered to and certain circumstances that
indicated that such facts might, indeed, exist.
DISCUSSION OF THE TIMELINESS OBJECTION
29
1. The Divisional Court in the Cameron case {The Quee~ in Right
of Ongario as Represented by the Ministry of Cor~ectiona~ Services
v. O~tario Public Ser¥ic~ Employees Union ~nd the Grievanq¢
Settlement Board (1990), 74 0.R. (2d) 700, per O'Leary J., at
pp.704-5, referred to the fact that the Court had, immediately
after the hearing of the application for judicial review, disposed
of it by an endorsement which stated:
July 11, 1990
We are all of the view that the Board was
correct in its conclusion that the 20-day time
period within which the grievor had to bring her
grievance, began to run only when she became aware
that she had a complaint that was based on a
violation or possible violation of the collective
agreement. In our view, the "complaint or
difference" referred to in Article 27.2.1 of the
collective agreement is the same kfnd of
complaint(s) or difference(s) mentioned in Article
27.1, that is to say a complaint or difference
"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."
The grievor knew at least by November, 1985
that she was unhappy about a possible exposure to
T.B., but she was not aware until late February,
1986 that such exposure might constitute a
complaint or difference with her employer arising
out of a contravention by it of the collective
agreement.
Until'she became so aware she could not have
believed she had such a complaint. It is implicit
in the reasons of the Board that the grievor first
became aware that she had a complaint based on a
violation or possible violation of the collective
agreement on February 25, 1986 when her Union
representative told her she could file a grievance.
The grievor filed her complaint on March 4, 1986
well within the 20-day time limit for doing so.
The words "believes" and "becoming aware"
found in Article 27.2.1 clearly establish that it
is only the subjective awareness of the employee
that she has a complaint arising out of a possible
violation of the agreement that sets the 20-day
time limit running.
Having found the Board was correct in its
interpretation of the collective agreement, i~ is
not necessary for us to decide whether this
· application would also have failed if it could be
said that the interpretation placed on the
agreement by the Board was not patently
unreasonable.
The application is dismissed with costs to the
Union.
At p.706, O'Leary J. stated:
In arriving at its decision, the Grievance
Settlement Board accepted that the time limits set out in
Article 27 are mandatory. It noted that because of the
words of Article 27,8.1 and 27.8.2, a union grievance
must be filed with 30 days and 60 days, respectively,
"following the occurrence or origination of the
circumstances giving rise to the grievance". The Board
noted that under those articles, time begins to run when
the complained-of event occurs whether or not the Union
is aware' of the occurrence. "There is not subjective
component", said the Board.
But the Board found that when Article 27.2.1 states
that the employee "who believes he has a complaint or a
difference" shall raise it with his supervisor "within
twenty (20) days of first becoming aware of the complaint
or difference", the time for filing the grievance only
begins to run when the employee has knowledge or
awareness that there has been a violation or possible
violation of the provisions of the collective agreement.
The Board said that "Article 27.2.1 contemplates the
knowledge on the part of the employee - a subjective
concept". The court has explained in the endorsement
made after the hearing before us, and set out above, why
we are in agreement with the interpretation placed on the
collective agreement by the Board. If the Board is
correct in its interpretation of the words found in
Article 27.2.1, the application for judicial review fails
whether, in making its decision, the Board was deciding
as to its jurisdiction or only deciding an issue within
its jurisdiction.
2. At p.712-13, Saunders J. (concurring) stated:
3i
In arriving at its conclusion, the Grievance
Settlement Board (the Board) made two findings of fact.
It found:
(1) that the grievor first became aware of her right to
file a grievance on February 25, 1986; and
(2) that prior to that date, the grievor had neither
the know]edge nor the belief that her concerns were
amenable to resolution under the collective
agreement.
There was no attack on those findings. From them,
it follows, in my opinion, that on February 25, 1986, the
grievor first became aware of the complaint or difference
between the parties arising from the interpretation,
application, administration or alleged Violation of the
agreement. Accordingly, her grievance was in time.
3. We conclude, on the evidence of the Grievor, that he was
unhappy when he received Mr, Wallen's letter of November 30, 1990
(Exhibit 3) informing him that he had not been selected for an
interview. He was, at that time, in a position similar to that of
the Grievor in Cameron, who would have no reason to believe she had
a complaint, as is referred to in article 27.2.1, until her union
representative told her that she could file a grievance on February
5, 1986, which she filed on March 4, 1986, within the 20-day time
limit for doin9 so.
4. In the case before us, on the basis of the the Grievor's
evidence, he did, in January of 1991, have a belief that the
actions of the Program Committee in denyint him an interview were,
at least in part, based on his colour. Although he was somewhat
uncertain as to when he raised these concerns with the Union, his
evidence was that this had taken place shortly after his
32
communicating with Mr. Curling in January of 1991, and he testified
that, at that time, he had received advice that he could file a
grievance based on a violation of the non-discrimination provisions
contained in article A.1 of the collective agreement.
5. The explanation of the Grievor for delaying his filing a
grievance until June 19, 1991 was because it was only late in May
of 1991, when he met with Mr. Small and received the two documents
above referred to: the evaluation of the Grievor by Mr. Small 'and
the memorandum of November 19, 1990 from Ms. Doherty to the
selection committee concerning the Grievor, which was attached to
Exhibit 8, that he realised that he had a grievance based on
discrimination based on his race. in Mr. Whitaker's letter to Ms.
Ravenscroft of November 12, 1991 (Exhibit 8), the following
statement appears: "The content of the Memorandum is inconsistent
with Mr. Lumley's most recent PPRs and we say that in the
circumstances, Mr. Lumley has been discriminated against on the
basis of his race contrary to article A.1 of the collective
agreement."
6. Mr. Lumley's evidence that he first formed the opinion that
article A.1 had been violated between the time he met with Mr.
Small and the date of his meeting with Ms. Doherty is inconsistent
with his earlier evidence. It appears that he had, by the time he
met with Mr. Curling, or at least by the time when he met with the
Union officers following his meeting with Mr. Curling, a then
33
unsubstantiated belief that he had been denied an interview because
of his race. That is, sometime in January of 1991 ~he believed that
he had a complaint based on a violation of the collective agreement
even if it was based on incomplete evidence. And in January of
1991 he was advised that ha could file a grievance claiming a
violation of article A.1 but he apparently wished to investigate
the matter further before doing so. These investigations led to
his receiving the two documents from Mr. Small on May 31, 1991.
Unlike the situation in Cameron, where the g~ievor first became
aware that she had a complaint based on a "violation or possible
violation of the collective agreement" at a time within the 20-day
time limit when she filed her grievance, the Grievor, here,
believed that he had such a complaint in January of 1991, a time
well outside the 20-day time limit for filing his grievance,
7. The significant date when time begins to run for the purpose
of article 27.2.1 is not'when a grievor has satisfied him or
herself that there is hard evidence to support the complaint, but
when a grievor "became aware of [his or her] right to file a
grievance .... " (See judgement of Saunders J. in Cameron at
p.712.) It is sign.ificant that Saunders J. agreed with the
conclusions of the Board in Cameron that "the significant date is
when a grievor had knowledge or belief that his or her concerns
were amenable to resolution under the collective agreement."
712). Here, the Grievor's evidence indicated that he had, in
January of 1991, a belief that his fai}ure to be interviewed for
34
the position was based on racial discrimination and that it was
amenable to resolution under the collective agreement.
8, Because the test as to when time starts to run is based oD
subjective rather than objective factors does not detract from the
fact that in order for an employee to believe that he or she has a
complaint or difference it is not necessary that the belief be
supported by a particular kind of evidence.
9. If the 9rievance arises directly from Mr. Wallen's letter of
November 30, 1990 (Exhibit 3), when the Grievor was informed that
he was not selected to proceed to the next phase of the selection
process, then we would conclude, employing the subjective test in
Cameron, that time started to run under article 27.2.1 when Mr.
Lumle¥ became aware of his right to file a grievance, sometime in
January (or, at the latest February) of 1991. The delay in filing
the grievance until June 19, 1991 exceeded by a considerable margin
the period that the collective agreement commands and, in the
absence of any other submissions the grievance would be
inarbitrable.
10. In Re Texaco Canada Ltd. and Oil, Chemical and Atomic Workers
International Union. Local 9-599 (1978), 19 L.A.C. (2d) 369 (Baum),
the grievor had been terminated as of April 30, 1977, and filed a
grievance on May 11, 1977, in which he grieved:
... termination of employment from Texaco Canada Ltd. My
treatment and termination by the company is unjust,
35
discriminatory, in violation of my seniority rights and
is because of my union activities and membership.
11. At p.372, in dealing with the employer's argument ~hat the
grievance was out of time and, hence, inarbitrab]e, the board
stated:
If the grievance arises directly from the letter of
termination, there is no doubt that a significant de]ay
resulted. It is a delay that exceeds by considerable
margin that which the collective agreement commands in
terms of filing a grievance. If we were to pass on the
letter of termination as such there is no question that
the grievance would not be permitted to go to
arbitration.
12. At p.373, the board found:
There is nothing in the letter of termination that
gives a hint of discrimination. Rather, the grievor
seems to be saying that he discovered an intent on the
part of the employer to discriminate against him for,
among other reasons, his activity in the union. The
letter of termination was merely the culmination of that
intent. Put somewhat different]y, the grievor found that
the employer tended to discriminate against him for,
among other reasons, union activity after the letter of
termination was sent and proximate to the time when the
grievance was filed.
In the result, we take the view that the grievance
itself must be read for the purpose of determining
whether the time requirements of the collective agreement
were met. The grievance, on its face, speaks of an
intent to discriminate against Mr. St. Louis for, among
other reasons, his union activity. It is such
discrimination that frames the basis of the grievance,
and not the letter of termination as such. Accordingly,
it is our holding that to the extent the union is able to
demonstrate knowledge on the part of the grievor
concernin9 the alleged discrimination arising after the
letter of termination was sent and proximate to the
filing of the grievance, we will permit the matter to be
heard.
36
The board concluded that their decision was based on the collective
agreement and on its exercise of discretion within the meaning of
s.37(5a) of the Labour Relations Act.
13. Although the board in Texaco Canada referred to its
jurisdiction under 37 (5a) of the LaboDr Relations Act, its other
comments are helpful in this case. In the case before us, it is
evident from the Grievor's testimony, and from his memorandum of
June 5, 1991 to Superintendent Doherty and Senior Assistant
Superintendent Small, what the nature of his complaints were in the
grievance that was ultimately fi]ed on June 19, 1991. The first
four statements are clearly related to the Grievor's having been
rejected as a candidate for the Management Development Program. As
we have already found, the Grievor had concluded that the failure
to afford him an interview was based on discriminatory motives, by
January or February of 1991, although he did not then have what he
regarded as conclusive evidence to support his conclusion. We have
already stated that, subject to our consideration of the submission
made by the Union based on waiver, the grievance as it relates to
the first five matters referred to in Exhibit 4 would be out of
time and inarbitrable.-
Parts of item 5 and items 6 and 7 do not necessarily relate
only to the allegedly discriminatory actions of the Employer in
refusing to grant an interview to the Grievor for the Management
Development Program position. Although the complaints contained in
37
parts of item 5 and in items 6 and 7 of Exhibit 4 appear to have
been grieved in a timely fashion, the particulars contained in Mr.
Whitakers's letter of November 19, 1990, set out at p. 3 above,
were limited to Mr. Lumley's claim that he was discriminated
against "on the basis of his race" in not having been granted an
interview for the amnagement development assignment.
DISCB$SION OF TRE WAIVER ARGUMENT OF TME UNION
1. On the facts before us it is evident that the Employer did not
raise its timeliness objection until after the completion of the
grievance procedure and after the grievance had been referred to
arbitration. In fact, the objection based on timeliness was only
raised on May 25, 1992, after the second scheduled date for the
commencement of the hearing. The position taken on behalf of the
Employer was that it was not in a position to fully appreciate the
nature of the grievance until the position of the Union was
explained at the commencement of the hearing on August 24, 1992.
2. We take it that the position of the Employer was based, in
part, on the fact that its knowledge with respect to the the nature
of the Grievor's complaint as it was not raised with his
supervisor, as is required by article 27.2.1, although this was not
used as a basis for objecting to arbitrability. We also take it
that the knowledge of the Employer was also limited by the fact
that there was no real meeting between the Grievor and the designee
38
of the Deputy Minister pursuant to article 27.3.3 of the collective
agreement (Stage II). The actions ogrievance was enough to fix
the Employer with notice of all relevant facts relating to any
procedural defects, and that bY permitting the matter to be
processed to arbitration, management must be deemed to have waived
its right asis of the complaint.
3. In order for waiver to be found, we must be satisfied that the
Employer understood that it had a basis for raising a procedural
objection to arbitrability based on timeliness. Counsel for the
Union suggested that the filing of the grievance was enough to fix
the Employer with notice of all relevant facts relating to any
procedural defects, and that by permitting the matter to be
processed to arbitration, management must be deemed to have waived
its right to object to arbitrability based on the alleged failure
on the part of the Grievor to adhere to the mandatory time limits.
The circumstances where waiver will be found, as set out in
the cases relied by the Union, are not in dispute. In Fun~/Anand,
the Board stated, at p.ll, in enunciating the principle:
... that an objection based on non-compliance with time
limits is waived when there has been a failure to raise
the objection in a timely manner and the taking of a
fresh step prior to raising the objection.
In the circumstances of that case, the Board found, at p.11:
... where the grievance was discussed at two meetings on
its merits, the grievance was denied in writing on its
merits, following the stage one meeting and the
timeliness objection was not raised until the written
39
reply subsequent to the stage two meeting, it is clear
that a timely objection to the failure to comply with th~
time limits of the collective Agreement was not made and
that a fresh step was taken prior to the timeliness
objection being raised.
Further at pp.ll-12, the Board concluded:
Once a timeliness objection has been waived it cannot be
revived by notice.
4. As noted, counse] for the Union also relied on the statement
contained at p.ll of Fung/Anand that the filing of the grievance
fixes the parties with knowledge of the facts relating to the
timeliness of the grievance:
Whether or not the timeliness of the grievance was
adverted to, a party to the grievance procedure must be
' presumed to be aware of the facts relating to the
timeliness of the grievance. As stated in To~n of
Pembrok~ 18 L.A.C. 125 (Johnston), a party to a
collective agreement in these circumstances is 'fixed
with the knowledge of the timeliness of the grievance'.
5. In the Town of Pembroke case, the statement, apparently relied
upon in the Fung/Anand case is found at p.128:
It appeared from the evidence that the corporation
had not raised the procedural objection that the
grievance was out of time at any prior step of the
grievance procedure, had resisted the grievance on its
merits only through its entire history to arbitration and
that the first time the corporation raised the procedural
objection was at the hearing held by this board. The
corporation's explanation that it did not realize the
grievance was out of time until the night before the
hearing cannot alter the position that it was fixed with
knowledge of the untimeliness of the grievance when it
was first instituted and at every step of the grievance
procedure thereafter.
6. In t. he Town ~f Pembroke case, at p.128, the board found that:
"It is apparent that the 9rievor failed to invoke step I within
4O
three days of the last causal date." We do not regard the board in
Town of Pembroke to have made a general statement concerning the
time that an employer is fixed with notice, but it was referring to
the time that the employer in that case was fixed with knowledge,
based on the fact that the failure to invoke a necessary step in
the grievance procedure was "apparent."
7. On the facts of the case before us, there being no evidence
that a discussion of the grievance took place between the Grievor
and his supervisor, as is required by article 27.2.1 and, because
it appears that the meeting contemplated by article 27.3.3 was not
held, the Employer would not have the usual opportunity of
obtaining evidence that might bear on the timeliness of the
grievance ~o as to make an early objection. In the case before us,
the position of the Employer was that it did not have the
information necessary to raise an objection until the commencement
of the hearing, and, accordingly, it ought not to be held to have
waived its right to object to the arbitrability of the grievance on
the basis that it was out of time. Its succinct position, was that
it ought not to be held to have waived a right it could not know it
had.
8. We would have had some sympathy for the Employer's argument
but for the existence of Exhibit 4. In that exhibit, entitled
"Complaints against the Ministry of Correctional Services," given
to Superintendent Doherty and Senior Assistant Superintendent
41
Sma]], the allegations of discrimination are set out in seven
numbered paragraphs. The first four of which clearly relate to the
Management Development Program and the fifth allegation apparently
relates to it, at least in part.
9. It is apparent from Exhibit 6 that Superintendent Doherty was
aware of what transpired at the time the second stage meeting was
supposed to have been held, and we must a~sume that she was aware
of the filing of the grievance on June 19, 1991. At that time, as
representative of the Employer, she had knowledge of the facts that
would have enabled the Employer to raise its procedural objection
to arbitrability. Nevertheless fresh steps were taken. Exhibit 6,
notwithstanding the absence of a meaningful meeting at Stage II,
resulted in a decision being made, on the merits, to deny the
g~ievance. There was no suggestion, until May 25, 1992, that an
objection based on timeliness was being raised. In the
circumstances, we must find that the objection was waived and the
grievance is arbitrable unless the further objection to our
jurisdiction is allowed.
ARGUMEN~ OF THE EMPLOYER BASED ON THE PROVISIONS OF SECTION 18 OF
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
1. It was the further position of the Employer that the grievance
dealt with an al]~egation that the Grievor had not been furnished an
opportunity to participate in the Metro Region Management
42
Development Program designed to give employees in the bargaining
unit management training opportunities. It was stressed that
approximately 70 employees applied to participate in the Program
and only eight ~r nine were chosen. The persons chosen were given
an opportunity to function on a temporary basis in a management
position on a time limited basis. The first point made by the
counsel for the Employer was that the subject of which bargaining
unit employees would be given a training and development
opportunity in these circumstances was not for the Board to
determine but was an exclusive management right.
2. The second facet of this objection was that a promotion out of
the bargaining unit was not a matter within the collective
agreement and, hence, not arbitrable. The process followed by the
committee involved in making selections for participation in the
Program related to positions that were not within the collective
agreement.
3. The third facet of this objection was that article A of the
collective agreement did not deal with discrimination by one
employee against another. What the article was said to deal with
was discrimination by the Employer as it related to carrying out
its obligations under the collective agreement.
4. Reference was made to article 27.16 of the collective
agreement:
43
The Grievance Settlement Board shall have no jurisdiction
to alter, change, amend or enlarge any provision of the
Collective Agreement.
5. Counsel for the Union relied upon Fl%nh et al, 22/B8
(Kennedy). In that case, the nine grievors, who were employed by
the Ministry of Health in the classification of Ambulance Officers
in the Ottawa area, whose positions were identified in the
legislation and regulations governing Ambulance work as "driver
Attendant," filed grievances in late January 1988, as follows:
I grieve that I/or my qualifications have been improperly
appraised, and I have been denied the opportunity to do
Employer sponsored training in a discriminatory manner
affecting my classification and future wages.
Settlement desired: That i be allowed to upgrade my job
skills through the 8 hour heart aid 1000 course.
In that case, the employer also raised a preliminary objection
to the jurisdiction of the Board and the arbitrability of the
grievance (at pp.5-6):
Simply stated, the argument of counsel for the
Employer in support of the preliminary objection was that
the grievance did not raise any matter covered in the
collective agreement; it did not raise any matter
pursuant to which a right of grievance was given to an
employee pursuant to Section 18(2) of the Crown Employees
Collective. Bargaining Act, R.S.O. 1980, c. 108, and the
only issue that it did appear to raise was one relating
to training and development which, by the specific
provisions of Section 18(1)(b), was an exclusive function
of the Employer and could not be the subject of
collective bargaining or come within the jurisdiction of
the Grievance Settlement Board. With each one of those
contentions we would agree. The relevant section 18
reads as follows:
18. (1) Every collective agreement shall be
deemed to provide that it is the exclusive function
of the employer to manage, which function, without
44
limiting the generality of the foregoing, includes
the right to determine,
(a) employment, appointment, complement,
organization, assignment, discipline,
dismissal, suspension, work methods and
procedures, kinds and locations of
equipment and classification of
positions; and
~b) merit system, training and development,
appraisal and superannuation, the
governing principles of which are subjec~
to review by the employer with the
bargaining agent,
and such matters will not be the subject of
collective bargaining nor come within the
jurisdiction of a board.
(2) In addition to any other rights of
grievance under a collective agreement, an employee
claiming,
(a) that his position has been improperly
classified;
(b) that he has been appraised contrary to
the governing principles and standards;
or
(c) that he has been disciplined or dismissed
or suspended from his employment without
just cause, may process such matter in
accordance with the grievance procedure
provided in the collective agreement, and
failing final determination under such
procedure, the matter may be processed in
accordance with the procedure for final
determination applicable under section
19.
6. Further, at p.6, of the Flinch case, the Board stated:
It is quite true that the grievance has been drafted
with a view to giving the appearance of jurisdiction by
the references to appraisal, classification and
discrimination. Notwithstanding the use of that
language, however, it is clear that the sole issue
between the parties is that the Grievors have not been
permitted to take a specific training course, and the
45
only relief requested is that they be allowed to take
that course. We cannot conceive of any issue that is
more clearly and exclusively an issue of training and
development, which by reason of the specific provisions
of Section 18(1) cannot come within our jurisdiction. If
authority were needed, reference can be made to OP~EU
Union Grievance 672/84 (Palmer) and Brick and Roth 244/82
(Roberts).
ARGUMENT OF THE UNION WITH RESPECT TO THE EMPLOYER'S SUBMISSION
THAT iT NAD UNFETTERED DISCRETION WITH RESPECT TO THE SUBJECTS OF
TRAINING AND DEVELOPMENT UNDER~ SECTION 18(1)(b) OF THE CROWN
EMPLOYEES' COLLECTIVE BARGAINING ACT
1. It was the position of the Union that the word "board" found
at the end of article 18(1) refers to the "board of arbitration"
referred in s.ll(1) of the Act which is as follows:
11.-(1) Upon written notification by the Tribunal, each
of the parties shall, within ten days of the
notification, appoint to a board of arbitration a member
who has indicated his willingness to act and shall each
notify in writin9 the other party and the Tribunal of the
name and address of the member so appointed.
2. It was also the position of .the Union that a violation of
article A.1 represented a breach of the collective agreement and
that this board had a right, and obligation, to adjudicate a
grievance based on a violation of that article under s.19(1) of the
Act:
19.-(1) Every collective agreement shall be deemed to
provide that in the event the parties are unable to
effect a settlement of any differences between them
arising from the interpretation, application,
administration or alleged contravention of the agreement,
including any question as to whether a matter is
arbitrable, such matter may be referred for arbitration
46
to the Grievance Settlement Board and the Board after
giving full opportunity to the parties to present their
evidence and to make their submissions, shall decide the
matter and its decision is final and binding upon the
parties and the employees covered by the agreement.
Counsel for the~ Union relied on ~_laine Warden, 1152/87
(Dissanayake),at p. 1, where the Board had to deal with an
objection to arbitrability based on the position that the grievance
did not allege the breach of any provision of the collective
agreement or the Act, that would give the Board jurisdiction to
entertain it '.
He submitted that the grievance is an attempt to
challenge the employer' s conduct relating to staff
complement and job assignment which pursuant to section
18(1) of the Act are clearly exclusively management
rights which are not subject to collective bargaining or
to the jurisdiction of this board.
Counsel for the grievor in the Warden case argued that the
grievance, in that case, was based on article 18.1 of the
collective agreement which, in part skates that: "The Employer
shall continue to make reasonable provisions for the safety and
health of its employees during the hours of their employment."
The Board's ruling on the preliminary objection at pp.2~3,
Nas:
The Board agrees with counsel for the grievor that it is
not essential that the grievance refer specifically to a
particular article in the collective agreement or
provision in the Act before it becomes arbitrable. Nor
are we unduly concerned that the grievance did not use
the phrase "health and safety" and did not articulate a
health and safety issue precisely. In that we recognize
that grievances are not written necessarily by legally
trained persons, the Board will not refuse to accept a
47
grievance merely because of technical defaults or
imprecise language. All that is required is that the
true nature of the grievance must be communicated to the
employer.
The Board does not agree with the employer that in all
cases the employer has an unfettered right to exercise
its management rights in any manner it sees fit. These
management rights may be restricted expressly or
implicitly by other provisions of the agreement.
Specifically, we find that the employer may not exercise
a management right in such a manner as would put at risk
the employees' health and safety, because that would be'
contrary to article 18.1. If the thrust of a grievance
is a health and safety issue under article 18.1, then in
our respectful view that grievance is arbitrable despite
the fact that the resolution of that grievance may
necessitate an inquiry relating to the employer's
exercise of management rights.
3. It was submitted on behalf of the Union that article A.1
represented an agreement of the parties to incorporate certain
safeguards contained in the Qntario Human Rights Code into the
collective agreement.
DISCUSSION OF THE ISSUES RAISED BY THE OBJECTION TO ARBITRABILITY
BASED ON TRE SUBMISSION TI~AT THE EMPLOYER BAS UNFETTERED DISCRETION
WIT~ RESPECT TO THE SUBJECTS OF TRAINING AND DEVELOPMENT AND T~AT
THERE IS NO STATUTORY PROVISION TI{AT ALTERS, OR ANY PROVISION IN
T~E COLLECTIVE AGREEMENT THAT CAN ALTER, THE EXTENT OF ITS
DISCRETION.
1. Counsel for the Employer likened the complaint of the Grievor
to one where a member of mannagement had decided to take three
employees in the bargaining unit to lunch but had, deliberately,
not invited a fourth bargaining unit member. This decision was
48
said to have been based on a discriminatory motive, the example
given being the marital status of the fourth employee. Such conduct
could not amount to a violation of the collective agreement, nor
should the alleged conduct of the representatives of the Employer
in the case before us. The submission was that article A.1 did not
expand the scope of the collective agreement. We emphasise that the
Employer denies the allegations with respect to its representatives
having discrimimated against Mr. Lumley aL he alleges.
2. Article A of the collective agreement did not exist in the
previous collective agreement between the parties expiring on
December 31, 1988. In Bousquet, 541/90 etc. (Gorsky), grievances,
based in part on discrimination because of the grievor's ethnic
origin, were filed under the current collective agreement. One of
the grievances involved the grievor's having been denied a training
and development opportunity, allegedly because he was a
Francophone. Counsel in that case did not refer to the effect of
article A.1, and no specific violation of article A was claimed.
Nevertheless, one of the objections to arbitrability, with respect
to two of the grievances, related to the grievor's "asking this
Board, in effect, to enforce the provisions of the Ontario Human
Rights Code S.O. 1981, c.53 (the "C~ode"). The section of the Code
referred to was section 4:
(4)(1) Every person has a right to equal treatment
with respect to employment without discrimination because
of race, ancestry ... ethnic origin
(2) Every person who is an employee has a right to
freedom from harassment in the workplace by the employer
49
or agent of the employer or by another employee because
of race, ancestry ..· ethnic origin
3. In the Bous~uet case, the employer submitted that there was no
provision in the Collective Agreement that had been violated by it,
and that, accordingly, the Board was without jurisdiction to deal
with the grievance alleging discrimination based on a ground
prohibited by the Co~. A second objection was that it was beyond
the jurisdiction of the Board to consider a grievance which, in any
way, concerned the granting of training or development
opportunities.
4. At p.13 of the Bousquet case, the Board stated:
In carrying out legitimate government purposes the
Employer would have to adhere to the public policy as
enunciated in the CQd~, in particular section 4. The
policy inherent in that section must be applied in
ascertaining whether an employer has behaved in good
faith. If the real allegation against the Employer
involves a breach of the public policy inherent in s. 4
of the gode, and if the Employer is found to have
discriminated against the Grievor or harassed him for any
of the prohibited grounds contained in section 4, this
will have a considerable bearing on finding a lack of
good faith on its part in exercising its management
rights under s. 18~l)(b) of the Ac~t with respect to
affording training and development opportunities to
employees.
5. In dealing with the second objection to arbitrability in the
Bousque~ case, based on the submission that the employer had
unfettered discretion with respect to the subjects of training and
development and that there was no statutory provision that altered,
or any provision in the collective agreement that could alter, the
extent of its discretion, the Board stated at pp.67-8:
50
In rejecting the preliminary objections to our
jurisdiction, we have found that the issue of good faith
in the exercise of the Employer's discretion as it
relates to the subjects of training and development
opportunities ... are properly before the Board, and this
includes the question of whether the Employer, in
refusing the Grievor's requests, did so in violation of
the provisions of s. 4 of the cod~.
6. The example relied upon by the Employer of a claim based on a
prohibited ground of discrimination under the Code is not apt.
Although we acknowledge the limitations on a grievance alleging
that an employer has refused to properly consider an employee for
a training and development opportunity, this does not give the
employer carte blanche. There is no case which we are aware of
that grants to an employer the right to carry out the management
rights granted to it by statute or under the collective agreement
in bad faith. Even broadly based management rights provisions
which might permit management to act discriminatorily would not
the right to discriminate contrary to the prohibitions of
encompass
the Ontario Human Rights Co~e. Cf. Re Metropolitan TorQnto Board o~
Comr's of Po]ice and Metropolitan T6ronto Police ~ss'n et al.
(1981), 124 D.L.R. (~d) 684 (Ont~ C.Ao) leave to appeal to S.C.C. /J
refused.
7. In the circumstances, it is unnecessary to discuss whether a
grievance can be founded on a violation of article A.1. Even if
article A.1 does not specifically afford an employee the right to
file a grievance based on its herin9 been violated, in considering
whether an employer has acted in good faith, in a claim based on
51
discrimination in the carrying out of a management function
pursuant to section 18(1)(b) of the Act, the Board may examine the
evidence to see whether the employer has discriminated on one of
the prohibited grounds contained in the Qntario Human Rights Code.
It is the substance of the grievance that we must consider and on
the basis of the particulars furnished to the Employer, as set out
in Exhibit 8, it is clear that the complaint concerned the failure
to grant the Griever an interview, and that the complaint was based
on discrimination on the basis of his race. While the particulars
state that this was "contrary to article A.1 of the Collective
Agreement and article A", this does not mean that the right to base
a grievance on an alleged violation of the Code does not exist,
even if article A.1 does not create a separate right to brimg a
grievance based on discrimination for grounds prohibited under the
Code. The inclusion of article A.1 did not change the obligatioJ
of the Board with respect to requiring that it conside~ whether
there is evidence ofacts of discrimination on prohibited grounds as
set out in the ~ode, as explained in Bou~quet. In the case before
us, there could have been no doubt in the minds of the
representatives of the Employer about the real nature of the
grievance.
8. The limitations on an employee's right of grievance with
respect to such matters as training and development as set out iD
s.18(1)(b) of the ~ are recognized at p.67 of Bousquet:
Here, the Griever has no statutory right to grieve
because he has been denied a training and development
52
opportunity. He claims that he does have a right under
the collective agreement to certain consideration when he
app]ies for a position under art. 4 of the collective
agreement, and that any restriction on the Board's
jurisdiction to deal with matters relating to training
and development must be read subject to an employee's
right to fair consideration under art.4. Because of the
statutory limitation imposed by s.iS(1), there is no room
for the penumbral activity permitted in Anderson as might
arise through the operation of the statutory rights
contained in s. 18(2). Here, the right to raise the
subjects of training and development by way of a
grievance has been restricted by means of a clear
indication on the part of the Legislature. Cf. ~etro
Torontq case, at p.250. The effect of the statutory
limitation placed on the Board's jurisdiction
differentiates this case from ~ounci~ of Printing
Industrie~ and Metro
The above statement, notwithstanding the breadth of the discretion
granted the employer, does not enable the Employer, ia the case
before us, to base its decision as to which employee receives a
training and development opportunity in whole or in part on the
race of an applicant contrary to the provisions of the Code.
DECISION
In the result, and for the above reasons, we find:
1. In accordance with the particulars furnished by counsel for
the Union, the grievance is limited to one claiming that the
Grievor was not granted an interview for discriminatory reasons
based on his race.
53
2. Although we have found that the complaint, as stated in the
reply to the request for particulars, was filed outside of the
mandatory time limits provided for in article 27.2.1 of the
collective agreement, and hence would be deemed to have been
withdrawn pursuant to article 27.13 of the collective agreement,
the Employer had', by taking a fresh step with knowledge of the
facts relating to the untimeliness of the grievance, waived the
right to maintain the timeliness objection.
3. We have also found that the objection based on the lack of
jurisdiction of the Board to hear a grievance based on the Employer
having carried out the exclusive function with respect to training
and development also fails.
4. In declaring that the grievance is arbitrable, we emphasize
that the claim which is arbitrable is limited by the statement
contained in the particulars relating to the alleged discrimination
against Mr. Lumley based on race resulting in his bein9 refused an
interview for the management development assignment at Toronto
East.
5. Because of our limited jurisdiction to review management's
exercise of its exclusive function with respect to training and
development, the evidence that we hear must be restricted to
whether Mr. Lumley was discriminated against on the basis of his
race. If he was, then the decision could not be said to have been
54
made in good faith. As was noted in Bousquet, however broad are
management's rights with respect to carrying out the exclusive
functions assigned to it under the Act, it cannot act in bad faith.
Merely because the training position was a management one, does not
alter the fact that the Employer, in the case before us, was
determining a matter encompassed under s.18(1)(b) "training and
development." The function was being exercised with respect to
bargaining unit personnel under management's rights pursuant to
s.18{1){b) of the Act. To allow the Employer to decide which
bargining unit employees will receive training and development
opportunities while engaging in discriminatory practices based on
the race of employees would permit the Employer to carry out its
rights in bad faith. It could never have been the intention to
i~mmunize management from challenges based on making decisions
founded on "discrimination practiced by reason of race, ancestry,
place of origin, colour, ethnic origin, citizenship, creed, sex,
sexual orientation, age, marital status, family status, or
handicap, as defined in s.9(1) of the Ontario ~uman Rights Code...
." Such acts of discrimination are prohibited and cannot be
equated with the kind of social discrimination used in the example
given by counsel for the Employer.
6. We have requested that the Registrar schedule a date for the
continuation of the hearing.
55
Dated at Toronto this 23rd day of February , 1993.
M. Gorsky - Vice Chairperson
~. O'Toole - Member