HomeMy WebLinkAbout1992-2260.Martin.95-10-24
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ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DEL'ONTARIO
1111 GRIEVANCE COMMISSION DE
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SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 2100, TORONTO. ONTARIO. M5G lZ8 TELEPHONEIT~LEPHONE: (416) 326-1388
180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMILEIT~LECOPIE (416) 326-1396
GSB # 2260/92
OPSEU # 92G393
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Martin)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Correctional services)
Employer
BEFORE S. Kaufman Vice-Chairperson
FOR THE M Bevan
GRIEVOR Grievance Officer
ontario Public service Employees Union
FOR THE J Benedict
EMPLOYER Manager, Staff Relations & Compensation
Ministry of the Solicitor General &
Correctional services
HEARING September 29, 1995
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INTERIM DECISION
This decision concerns a preliminary objection to the
grievance of Joanne Martin, dated September 8, 1992. Ms.
Martin was a classified CO at the Elgin-Middlesex Detention
Centre in London Ontario. She resigned her employment on
November 5, 1991 and grieves that she did so under duress and
a misapprehension of the employer's policy, which misappre-
hension, she alleges, was induced by the conduct of the em-
ployer. She therefore characterizes her resignation as
wrongful dismissal.
The objection of the employer is that the grievance was
brought out of the time limits in Art. 27 of the collective
agreement and that timeliness was raised at the reply to the
second stage of the grievance, dated October 27, 1992 (Ex.
S) . It points to a delay of 10 months from the date of
resignation to the date of the grievance and a further 2-year
delay before the matter was scheduled for hearing, and that 4
years have passed from the date of the grievance to the date
of the initial hearing.
The Employer's Submissions:
Keeling, 45/78 (Prichard) is authority for the proposi-
tion that the Art. 27 time limits do not apply to grievance
launched under s. 18 of the Crown Employees Collective Bar-
gainin9 Act, R.S.O. 1990, c. C.SO, hereinafter referred to as
"the old CECBA", The grievor was employed under the old
CECBA and filed her grievance under it. Although strict time
limits do not apply to dismissals, ther~ was a one-day delay
in Keelin9, and in this case there is a 10 month delay. A
lO-month delay is inherently prejudicial, and the further de-
lay after the grievance was filed was even more prejudicial.
There was no reasonable excuse for the delay, and the delay
was not a trivial matter.
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Employers are expected to dispose of disciplinary
matters in a timely fashion in order to avoid terrorizing
employees and employers cannot leave the employee in a state
of constant suspense. By the same token, employees cannot
keep their employers in suspense to to whether they will
grieve a perceived wrong. There must be finality to enable
the employer to conduct its business and fill vacancies. Ten
months is an unreasonable delay.
Clements, 1l2/80 (Prichard), Viegas, 384 & 414/88
(Devlin), and Gembora, 930/89, (with an acknowledgment that
this case was not "on target") Boldt, 221/90 (Verity) and
Bertrand, 1998/93, 2005/93, 2415/90, (Mikus) were submitted
in support of the employer's position.
Sufficient evidence of prejudice can be found from" the
date of resignation, the date of the grievance, and the date
of bringing it forward. It is unlikely that the employer
will have a fair hearing. The grievance should therefore be
dismissed.
The Union's Submissions:
The union is not the cause of the delay which occurred
after the grievance was filed. Following the October 27,
1992 reply to Stage 2 of the grievance, the union wrote to
the GSB on November 2, 1992 (Ex. 6) and requested a hearing.
A pre-hearing was held in January of 1993. A hearing was
scheduled for May 10, 1993, but was adjourned due to the una-
vailability of a panel on that date. On July 14, 1993, the
union wrote to the GSB (Ex. 7), advised of the reason for the
adjournment on May 10, 1993, and requested that the hearing
be rescheduled as soon as possible. As no hearing date had
been scheduled by March 29, 1994, the union wrote again to
the GSB requested the rescheduling of the hearing. The delay
was one of 10 months from the date of the grievor's resigna-
tion on November 5, 1991 until the date of her grievance on
September 8, 1992.
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The grievor had been a C02 for 13 years. In October of
1991 she was approached by an investigator as to whether she
was co-habiting with a female ex-inmate. She initially de-
nied everything at a meeting. Later that day she called the
investigator and acknowledged to him that she was co-habiting
with a female ex-inmate. She answered his questions truth-
fully and said that she was in and continues to be in that
relationship. Thereafter Supt. Simpson spoke to the grievor
and gave her 3 choices, in view of her admission--to end the
relationship, to resign, or to be fired. She resigned as she
did not want to be fired. About 2 weeks after the grievor
resigned, another female CO was given the same choice, having
entered into a personal relationship with a male ex-inmate,
and she also chose to resign. However, that CO grieved in a
timely manner and the matter was settled in about August of
1992 and she was reinstated on terms.
The grievor understood that the policy required the ter-
mination of employment of a CO who lives with an ex-inmate.
That wasn't the policy. She was mislead as to the policy by
the employer, and only learned that it was not a hard and
fast policy, but a matter of discretion, when the other CO
was reinstated.
The facts are in agreement. Supt. Simpson will not
dispute them. No documents have been lost. Memories have
not faded. witnesses have not moved on.
The employer's cases indicate that the employer must
show some prejudice. Evidence on the merits should be heard,
and if a problem arises in the evidence, the preliminary ob-
jection can be argued and ruled upon. In Keeling the deci-
sion spoke only of delay which goes to the merits of the
case. I
The grievor was dismissed under "the old CECBA". As s.
18 applies, there is no question of the time limits. in the
collective agreement being mandatory, following the reasoning
in Keeling, supra,
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In DiPaola, 51/90 Arbitrator Samuels said that delay
could be taken into consideration when hearing the merits.
It is not sufficient for the employer to merely claim
prejudice. Actual prejudice must be shown. Keeling and
DiPaolo should be followed. The board should determine that
there would be no prejudice to the employer, and no reason
not to hear this case. Prejudice is an issue going to the
merits. The grievance should not be dismissed out of hand.
The Employer's Reply:
Four years have passed and the employer ought not to
bear the burden of the delay, as the delay is not the em-
ployer's fault. There is sufficient evidence to make a deci-
sion. The reason given for the grievor's delay is not an
excuse. The union is relying upon a without prejudice set-
tlement, which is a highly improper basis for a grievance.
The employer did not know of any duress; that will be a mat-
ter of major disagreement in the evidence.
The duress arises from the settlement and the grievor
alleged duress only as a result of the settlement. The delay
is inherently prejudicial and the reasoning in the case law
does not justify hearing this grievance.
Considerations:
In Keeling, supra, the board found that the mandatory
time limits in the agreement were inconsistent with then s.
17(2) of the old CECBA and could not absolutely preclude the
processing of a dismissal grievance.
In Clements, supra, at p. 7, the delay was viewed as a
matter going to the merits of the case, rather than to the
panel's jurisiction. The Clements case dealt with a situa-
tion in which the day after a grievor's dismissal, a solici-
tor drafted a letter to the employer on behalf of the grie-
vor indicating he was grieving his dismissal, which the em-
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ployer was found not to have received. The board found that
the employer was unaware of the grievance's existence until
some 14 months after the dismissal, and that the immediate
manager, having had reason to believe the matter had been
settled, had taken no steps to preserve or prepare manage-
ment's case. At p. 10, the board considered whether the case
should be dismissed as a result of the prejudicial effect of
the 14-month delay. The board viewed the position as raising
2 issues:
1- Had "the delay so prejudiced the proper con-
duct of the case that it should be dismissed
on the merits?"
2. Was it "appropriate for the Board to make such
a ruling without hearing all the evidence the
parties may wish to adduce on all aspects of
the case".
It noted, at p. 10, that "substantial prejudice through
delay goes to the merits of the case and can be grounds for
dismissing the grievance", and stated that on the evidence it
had heard to that point, it had found no such prejudice. At
p. 11, it noted that there may be appropriate cases in which
to dismiss the case without hearing all the evidence as to
the merits, and that that is a discretionary matter which
each Board "must exercise ... in light of the facts in each
case" . It concluded that on the facts and evidence before
it, it should dismiss the grievance on the merits without
hearing further evidence, indicating "no amount of evidence
which we might hear at this stage could eliminate or outweigh
the inherent prejudice done to the employer's position by
virtue of the delay", and
Although on hearing the evidence we might be temp-
ted to believe that we were seeing a fair hearing,
we would never be in a position to know with confi-
dence the nature of evidence we would have heard in
the absence of the delay. It is the inherent im-
possibility of restoring that confidence at this
stage that makes it appropriate to dismiss the
grievance on the merits at this stage.
At p. 11, it stated
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The prejudice arises from the fact that as a result
of the Union's failure to file the grievance, the
employer was precluded from a full, effective and
timely investigation of the discharge with a subse-
quent deterioration in the quality of the case that
the employer would be able to put forward. This
prejudice is not contradicted by Mr. Kyle's testi-
mony that he was able to recall the discharge and
that documents were still available.
At pp. 13-14, it stated
The decision in Re Keeling was not an invitation to
ignore timeliness consideration, but rather a deci-
sion which permits the Board to consider timeliness
without being bound by the strict time limits of
the collective agreement. In doing so, we must be
guided by the established patterns of grievance
processing in both the private and public sectors.
The delay in the processing of this case was so
great that it takes the case outside even the most
liberal version of the requirements for a fair
hearing.
In Viegas, supra, the grievor filed a grievance approxi-
mately six years after she had submitted a written resigna-
tion and after the employer had refused to permit her to
withdraw the resignation. The employer agreed, in spite of
its' argument that it would be severely prejudiced if it were
required to respond to the grievance, that the board would
hear evidence in respect of both the preliminary objection
and the merits, and reserve its decision on the objection.
The Ministry's key witness as to the grievor's state of mind
at the time of her resignation had suffered a stroke which
affected his memory. The issue as stated by the Board was
whether a fair hearing could be held. It determined that the
evidence demonstrated that the Ministry had been substantial-
ly prejudiced by the delay and dismissed the grievance.
In Gembora, the grievor filed a grievance as to the
results of a competition some 7 1/2 months after notification
of the results, and alleged that her delay was due to her
lack of awareness of her right to grieve on the basis of
relative equality. The Board declined to extend the time
limits on equitable grounds.
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In Boldt, the grievor filed a grievance some 7 years I
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after-the-fact of a 9-year period in which he claimed to have
been improperly classified. He died before the grievance was
heard. The board found the following sufficient evidence of
prejudice: the employer had cleared the grievor's personnel
file of most of its contents; oral testimony lead the board
to conclude that the witnesses only vaguely recalled the
grievor's actual duties and responsibilities as well as the
circumstances, date of, and modification of his duties at a
certain point; the death of the grievor resulted in the loss
to the employer of the opportunity to cross-examine him. The
board concluded that the matter was "inarbitrable because of
the inordinate delay" in filing the grievance.
In Bertrand, supra, the GSB advised the employer in 1991
that the grievor's 1990 grievance had been withdrawn, and the
union did not raise that grievance again with the employer
until December, 1994. A second grievance was filed in 1991.
Another grievance, respecting a rehabilitation programme, was
filed about 2 years after the programme ended.. At p. 16,
Arbitrator Mikus concluded that on the evidence, the grievor
believed that the 1990 grievance was no longer outstanding
when she filed the 1991 grievances. She concluded that the
1991 grievances had been resolved by the parties' agreement
as to a rehabilitation programme and the employer, not having
heard for a period of about 2 years that there was any prob-
lem with the rehabiliation programme, had reason to believe
the 1991 grievance was settled. As well, the grievor was
obliged to respond after she received a letter in April of
1992 advising her she would be declared surplus, to let the
employer know she had an objection. Arbitrator Mikus consi-
dered the factors in Beckers Milk and Teamsters Union. Local
.2i1. (1978) 19 L.A.C. ( 2d) 217 (Burkett)--the reason for the
delay, the length of the delay and the nature of the grie-
vance, and cited the following from Beckers
...If the offending party satisfies an arbitrator,
notwithstanding the delay, that it acted with due
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diligence, then if there has been no prejudice the
arbitrator should exercise his discretion in favour
of extending the time-limits. If, however, the of-
fending party has been negligent, or is otherwise
to blame for the delay, either in whole or in part,
the arbitrator must nevertheless consider the se-
cond and third factors referred to above in decid-
ing if reasonable grounds exist for an extension of
time limits.
She concluded from the union and grievor's failure to advise
the employer promptly at the conclusion of the rehabilitation
programme of the grievor's dissatisfaction with it, that due
diligence not was exercised in the processing of the grievan-
ces. No reasons were given for the delay and the length of
the delay was significant. She acknowledged that there was
no evidence of prejudice to the employer, but also indicated
that in view of all the facts, the board would not exercise
its equitable discretion to extend the time limits, and that
to do so would be unfair to the Employer.
In DiPaola, supra, the grievor submitted her grievance
22 days after the day her contract was not renewed, rather
than the 20 days prescribed by the collective agreement. Ar-
bitrator Samuels noted that under s. 18(2)c of thr old CECBA,
the grievor had the right to have her grievance "processed in
accordance with the procedure for final determination" if it
was not finally resolved under the grievance procedure, and
that that right was "in addition to any other rights of grie-
vance under [the] collective agreement". He indicated that
at 30 O.R. (2d) 662, the Ontario Divisional Court upheld the
Board's decision in Keeling, supra, that the right to have
take a grievance from discipline or dismissal or suspension
without just cause to arbitration under s. 18(2)c could not
be limited by the .collective agreement's timeliness provi-
sions. He noted that in Keeling the Board noted that "any
undue delay in filing a grievance could be taken into account
during a consideration of the merits of the matter, in parti-
cular if the delay resulted in prejudice to the employer".
He stated that there was no undue delay which caused preju-
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dice in the case before him, and denied the preliminary ob-
jection.
The following emerges from the parties' cases: i
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1- Whether to hear or dismiss a grievance which I
is filed beyond the time limits indicated in the collective
agreement without hearing evidence is a matter of arbitral
discretion.
2. Delay is an issue that can go to the merits of
the matters in dispute.
3. The following factors should be considered in
determining whether to dismiss or hear this grievance:
a) the reason for the delay;
b) the length of the delay;
c} the nature of the grievance;
d) whether the union or grievor has con-
ducted itself with due diligence, or has
been negligent;
e) whether the delay will so prejudice the
proper conduct of the case that it should
be dismissed.
Conclusions:
No oral evidence has been lead with respect to either
the merits or the preliminary objection. The uncontradicted
submission before me is that the grievor views her delay as
having been caused by the employer's misrepresentation as to
its policy regarding COs co-habiting with ex-inmates.
The union resisted the employer's submission that the
union's conduct had contributed to the: delay. There is no
evidence before me that the grievor or the union did not con-
duct themselves with due diligence. The documentary evidence
presented indicates that the initial delay in the hearing of
this matter arose from the unavailability of a panel and
thereafter for reasons of which neither party is aware and
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which do not appear to have been in the control of either
party.
The basis of the grievance and facts giving rise to it
were presumably made known to the employer by October 26,
1992, the date of the second stage meeting, some 6 weeks
after the grievance was submitted. Thereafter, the delay
appears to have been attributable to neither party.
The nature of the grievance is apparent on the face of
the Grievance form, which alleges a forced resignation under
duress, and dismissal. The narration of the facts giving
rise to those allegations was not disputed. The employer's
knowledge of duress may be in dispute.
The union's submissions that no documents have been
lost, that the relevant witnesses are still available; and
that memories have not faded, were not contradicted. There
are neither submissions nor evidence that problems are anti-
cipated in establishing the relevant facts in this dispute in
evidence. On the submissions and documents presented, it is
not possible to conclude at this point that the lO- or 11-
month delay in having filed the grievance, or the 4 year de-
lay in it being heard, is inherently prejudicial to the abi-
lity of the parties to have a fair hearing. Such a conclu-
sion would be premature.
While the total delay of 4 years in bringing the matter
to hearing is substantial, and the employer's concerns are
not frivolous, this is an appropriate situation in which to
reserve on the issues of timeliness and whether the delay has
so prejudiced a fair hearing of this dispute until I have
heard the evidence on the merits.
The preliminary objection is denied at this point, with-.
out prejudice to the employer's right to call evidence on the
subject and to raise it in argument. I will instruct the
board to schedule a hearing into the merits.
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Dated at 'ro:contO thiS 24t.b da~ of oet.obe1: t 1995.
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Susan '0. l:.auf:1\\a
~ice-Chai~
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