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HomeMy WebLinkAbout1992-3599.Dhanju.95-06-27 ~l (.:..~ ~ ONTARIO EMPLOYES DE LA COURONNE l' CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE _ _ SETTLEMENT .. REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G 1Z8 FACSIMILE /TELECOPIE (416) 326-1396 GSB # 3599/92 ~ OPSEU # 93B245 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Dhanju) Grievor - and - The Crown in Right of ontario (Ministry of Housing) Employer - BEFORE N Backhouse Vice-Chairperson FOR THE M McFadden GRIEVOR Counsel Koskie & Minsky I, Barristers & Solicitors FOR THE R Little EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, .storie Barristers & Solicitors HEARING June 15, 1995 I. , .J ~ ~.~.... - ~ INTERIM DECISION THE ISSUE This IS a grievance concermng a job competition At the outset of the heanng a preliminary objectIon was raIsed by the Employer disputmg the Board's jurisdiction. The Employer objected that the Umon referred the grievance for arbitration beyond the mandatory time limi t s'et out III ArtIcle 274 of the Collective I and submItted that it was therefore deemed withdrawn Agreement under ArtIcle 27 13 ( The Union conceded that ArtIcle 27 4 set out mandatory time limIts which could only be extended by agreement m\ writing pursuant to Article 27 15 and that It was well settled that the Board had no jUrIsdictIOn to extend the tIme bmits However, the Dmon submItted that eIther there was no breach of the time limits or alternatIvely, that the Employer waIved Its nght to rely upon the J mandatory limIts THE FACTS This grIevance was filed on August 25, 1992 The Step 2 meetIng was held on October 1 st, 1992 at which tIme documents concermng the intervIew process were prOVIded to the Umon and Gnevor who requested an opportuni ty to reVIew them and make further submISSIOns While there was some conflIct In the eVIdence regarding the basis upon whicl;1 the October 1 st, 1992 meeting was concluded, I am satIsfied that the October 6th, 1992 memo of Laura Wtlhams, the Deputy Mimster's DesIgnee at Step 2, accurately sets " ~l f.", ~ I 'j' forth the status of the matter following the October Ist, 1992 meetIng The memo references a request to the Union fot a letter confirmIng the agreelllent to extend the deadlIne for the DesIgnee's response until she had receIved the further response from the Umon and Gnevor to the IntervIew documentation The Umon dId not respond to 3 follow-,up electromc mall messages from the Employer requesting that it confirm the extensIOn In wnting HavIng receIved no further response from either the Umon or the Gnevor, the DesIgnee on October 8th, 1992, demed the gnevance at Step 2 The Umon's Staff RepresentatIve then called the Employer to complain that the Grievor dId \ not have a chance to make submIssIOns as agreed at the Step 2 meeting The Employer's Human Resources AdvIser explamed to the Staff Representative that the Umon had failed to respond to 3 electromc mail messages and that the DesIgnee had no option but to make the decIsIOn within the time HmI ts The Umon's Staff Representative testified that she mformed the Human Resources Adviser that the matter would then proceed to arbitration ~ The Employer's Human Resources Adviser called the Union's Staff RepresentatIve back the same day to say that the Employer would hold a further meeting The Union's evidence was that it ,understood that the purpose of thIS meeting was to continue the Step 2 meetIng The Employer's eVIdence was that thIS was an .J informal informational meeting whIch was not part of the grIevance .. process Around February 15, 1993, the Union suggested meetIng dates to the Employer and a further meeting was held on I I l \,{ g;: 1 February 26, 1993 The meetIng dId not resolve the matter When the Union said that the matter would then proceed to arbItration, the Employer raised the matter of a prelImInary ObjectIOn on the grounds of tImeliness. FINDINGS It is in the interests of collectIve bargaining for cases to be resolved on theIr merits wherever possIble While the Board does not have JUrISdIctIOn to enlarge the procedural tIme lImIts, thIS can be done by express agreement of the partIes or by one of the patties faIlIng to object to the procedural IrregularitIes In a timely fashIOn. When the Employer agreed to hold a further m~etIng, if It dId not consIder it a continuatIOn of the Step 2 and merely intended to resolve the ments of the case wIthout WaIVIng Its right to raise a timeliness objectIOn, the objection should have been raised prior to the meetIng An agreement could then have been reached between the parties that the meetmg was occijrring "without prejudice" to the Employer raismg the tIme limit objection 'at the heanng In my VIew, it IS not necessary to find a subjective IntentIOn on the Employer's part not to mvoke the procedural provisions of the Collective Agreement Rather, a waiver is created ( where one party m full knowledge of the facts acts in a manner / inconsistent with the posItIOn subsequently asserted By agreeing to a further meetmg wIthout raising the Issue of tIme limi ts, the Employer waIved the right to subsequently object to the tImeliness \ of the grievance which would otherWIse have been available to argue that the Board had !no JUrIsdictIOn , '" ~ f,\ -- ;~; CONCLUSION ,'- The Board finds that the Union was able to establIsh that the Employer waived the tIme lImIts by Its actIOns and omISSIons and that the Employer fa~led to show that ItS ObjectIOn to the junsdIction was made m a timely fashion Therefore, as the Board has \ JUrISdIction to hear thIS matter, the partIes will be contacted to resume the heanng DATED at Toronto, this 27th day of June, 1995. - I Nancy L Backhouse Vice~Chairperson \ '\