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HomeMy WebLinkAbout1993-0992.Cuthbertson.94-07-05 ;;., ~, v- I \ ,/ ONTARIO E:MPLQYf;S Or: LA COURONNf; ~> CROWN f;MPL0 Yf;E:S Of; L'ONTARIO t GRIEVANCE 1111 COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS /80 DUNDAS STREET WEST SUITE 2 00 TORONTO ONTARIO M5G TZ8 TELEPHONE/TELEPHONE (4161 326- 388 I 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G 7Z8 FACSIMILE /TE LE COPIE (416) 326-1396 0992/93, 3387/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN -- OPSEU (Cuthbertson) Grievor - and - The Crown in Right of Ontario (Niagara Parks Commission) Employer BEFORE F Briggs Vice-Chairperson M Lyons Member J Miles Member FOR THE D Wright I GRIEVOR Counsel Ryder, Whitaker, Wright I Barristers & Solicitors FOR THE T Kovacs EMPLOYER Counsel Hicks Morley Hamilton Stewa~t storie Barristers & Solicitors HEARING: April 20, 1994 / ~ ~; -" t There are two grievances alleging the grievor failed to receive a job posting in accordance with the provisions of the Collective Agreement. The Employer took the position that the grievance dated December 23, 1992, was out of time: and therefore this Board was without jurisdiction to hear and determine the matter The parties agreed to proceed on the question on timeliness and this award deals exclusively with that issue Many of the facts that were not in dispute The grievor is a police constable with the Niagara Parks Commission and, in the fall of 1992, he applied for the posted position of Sergeant. He was notified on September 18, 1992, by telephone t.hat he did not receive the job He filed a grievance on December 23, 1992 which stated, III grieve that my qualifications and abilities to perform Sergeant duties were relatively equal and that seniority was not considered and felt that I was unjustly dealt with in the selection process" He requested to be promoted to Sergeant inunediately On December 24, 1992, the Chief of Police wrote to the grievor the following" Dear Derek, You have submitted a grievance dated December 23, 1992 which states, "I grieve that my qualifications and abilities to perform Sergeant's duties were relatively equal and that seniority was not considered and felt that ( was unjustly dealt with in the selection process.. You have asked that you "be prompted to Sergeant immediately · The competition in question closed July 16, 1992 and you were notified by letter September 18, 1992 that you were not the successful candidate. Attached please find a copy of the grievance procedure outlined in the Collective Agreement including the necessary time limit requirements. Since you have not followed this article and responded in the time allowed, I am returning this grievance to you. I I .,.. " ~- ;; -, .t 2 The grievor responded by sending the following letter dated December 29, 1992, which stated. I submitted a grievance to the Chief Constable, December 23, 1992 and received a written response December 24, 1992 returning my grievance indicating that I had not followed the time limit requirements. As stated in the time limit requirement it indicates that a grievance may be proceeded with to the Chief of Police within twenty days of first becoming aware of the complaint or difference. I wished to inform you that I first became aware of evidence on December 8, 1992 that I was unjustly dealt with in that the selection process. I have a witness who is willing to come forward in this matter Ms. Debbie Whitehouse is currently the Director of Niagara Parks School of Horticulture and Botanical Gardens, but at the salient time, was the Director of Human Resources for the Park Commission. .As such, part of her responsibilities was to ensure that appropriate rules and procedures were carried out with respect to the job posting at issue She testified that because of illnesses and resignations the Police Department was becoming short staffed and the Commission was being pressured by the Union to increase their staff complement. The Commission decided to fill Sergeant positions first and then the Constable positions. In the J:1onnal course of events, there is an examination given for the position of Sergeant which is written and administered by the Ontario College of Police. However, that exam was not going to be held for several months so the Employer decided to write and hold it's own examination. Staff Sergeant Holidge, who has once worked at the Police College, developed the test and Ms. Whitehouse was confident that he was capable of writing and administering the exam. -- :i- o. f 3 It was not in dispute that some of the officers in the bargaining unit were concerned about the exam being written and administered internally At the end of July 1992, the grievor approached Ms. Whitehouse and made clear his concerns The grievor specifically expressed his concerns to Ms. Whitehouse regarding the impartiality of the test because it was written by Staff Sergeant Fred Holidge. Ms Whitehouse testified that the test became referred by all concerned as the IIFred tese It was her evidence that she had understood that one of the gI;ievor's concerns was that Staff Sergeant Holidge was biased. It was agreed by the parties that the grievor told Ms. Whitehouse that he was not content that Staff Sergeant Holidge wrote the test. The grievor raised "vith Ms. Whitehouse that he did not receive reference material for the test at the same time as other applicants and that it was not made clear to him the sections of the reference material that would be utilized for the tests. After September 18, 1992, when the grievor was aware that he did not receive the position of Sergeant, he again approached Ms Whitehouse and reiterated his concerns that Sergeant Holidge was biased. Ms Whitehouse attempted to reassure the grievor that her motivation for being present during the oral portion of the test was to ensure that bias was not an issue. She attempted to settle the grievor by telling him of other Sergeant positions becoming available in the immediate future. He was not receptive to that information. - t 4 Ms. Whitehouse testified that, at the time, she did not think that she had resolved the grievor's concerns. It had been clear to her that he was still quite unhappy about the r matter In cross examination, Ms. Whitehouse conceded that, at no point prior to December 23, i 1993, did the grievor indicate that he was contemplating filing a grievance The grievor has wor~ed for the Niagara Parks Commission since 1968. As previously stated, he applied for the posted position of Sergeant in July 1992. Part of the selection process was a written exam in August 1992, and an oral exam held on September 15,1992. On September 18, 1992, the grievor received a phone call from Staff Sergeant Holidge that he was not the successful candidate. Thegrievor acknowledged, in his evidence, that after being informed that he was not successful he still he did not feel the competition was properly run. He mentioned this to Staff Sergeant Holidge as well as Ms. Whitehouse. Some of the reference material that was given to the grievor was referred to as the flblue booJ<1' The grievor testified that Staff Sergeant Holidge told him there would be no questions from the blue book on the test. e In their discussion after September 18, 1992, the grievor told Staff Sergeant Holidge that he was surprised there was a question on the oral exam from the blue book. The grievor testified that he did not consider filing a grievance in September 1992, because he felt he had no grievance at that time It was his evidence that he has been ~ -- ~ 5 a police officer for 26 years and is reasonably familiar with submitting evidence in court. He decided that he had no evidence to substantiate any claim, other than his own personal feelings He was absolutely sure he had no grievance as of September 18, 1992. When questioned about this matter in cross examination, he testified that anyone could file a grievance, but, in his view, there were no grounds for a grievance that would "hold waterl He felt that he had been wronged, but uthat was all he hadll, meaning that he had no evidence to substantiate his views. He thought, given his experience as a police officer, that he required testimonial evidence to have a grievance. On December 8, 1992, the grievor was having a discussion in the locker room with a co- worker John Clark. Mr Clark, who has subsequently become a Sergeant, told the grievor that even if he had attained 100% on any exam that he would not have been successful. The grievor testified that when asked to explain that remark, Sergeant Clark rubbed his hands together, mimicking Sergeant Holidge, and said Iwait till I get that Cuthbertson he'll never see Sergeant stripes while I'm around" The grievor testified that Sergeant Clark told him that Sergeant Holidge :made this comment prior to the written exam. The grievor asked Sergeant Clark if he would testify to that effect and Sergeant Clark agreed. The grievor testified that irrtmediately following this discussion he felt he had a grievance and he acted within two days of getting diiection from the Union regardingfue filing of this grievance ~~ ;; Il t 6 In cross examination the grievor acknowledged that in September 1992, he knew he did not get the job and he thought the job competition was not fair When asked why he did not investigate not receiving the job in a timely fashion, the grievor said that he had I received notice that he was not successful and, because he had nothing to support a I grievance, his decided lIhe would go back to work the next day with a smile" He testified that he would have filed a grievance if he could. He further indicated that if he had "something which would lead me to believe I had a grievance I would had presented itU The grievor conceded in cross ex.amination that his view that the process was not fair was not simply because the test was written by Staff Sergeant Holidge, but because it was not / written and administered by the Ontario Police College. The grievor conceded in cross ex.amination there was another position for Sergeant which was posted in November 1992, for which he did not apply When ask~d why he did not apply he said that he would not have had lIany hope" in getting the job. In his cross examination, the grievor offered that, immediately following the competition in the early fall of 1992, John Clark told him, in passing, that he thought the grievor had been lIscrewed' with respect to the competition. The grievor testified that Sergeant Clark did not elaborate and he did not peruse it. This was his first indication that Sergeant Clark had some prior knowledge, but he lldid not connect itll until his comments made on . 2 7 December 8, 1992. He agreed that conversation may well have been prior to November 16, 1992. EMPLOYER SUBMISSIONS Mr Kovac, Counsel for the Employer, submitted that it was helpful to consider the actual wording of the grievance at issue It is alleged that the grievor was relatively equal and he was unjustly dealt with in the process. There is no dispute that article 6.01 of tile collective agreement provides mandatory time limits for the purposes of the filing of grievances. It states Article 6-Grievance Procedure 6.01 - It is the intent of the Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of the Agreement including any question as to whether a matter is arbitrable .An Employee who believes he has a complaint or a difference with the Employer shall first discuss the complaint or difference with the Chief of Police within twenty (20) days of first becoming aware of the complaint or difference If any complaint or difference is not satisfactorily settled by the Chief of Police within seven (7) days of the discussion, it may be processed in an additional (10) days in the following manner. 6.02 STAGE ONE The Employee may file a grievance in writing with Chief of Police. The Chief of Police shall give the grievor his decision in writing within seven (7) days of the submission of the grievance I I I O' t 8 The Employer argued that the evidence was clear that the grievor became aware, on September 18, 1992, that he was an unsuccessful applicant. Therefore, a grievance filed to dispute whether he was properly treated had to have been filed within twenty days of September 18, 1992. The Employer acknowledged the decision in Onpuio Public Service Employees Union (Voronica Pierre) and The Ministry Of Correctional Services, 0492/86, which was upheld in Divisional Court. The Employer is not disputing that decision, but did suggest it ought to be applied differently in the present instance. In the instant matter, the -grievor complained about the IIFred Testll because he did not think Staff Sergeant Holidge was impartial. Further, he had also been concerned about the IIBlue Book' because of when he actually received it as well as CU}y questions arising from it. The grievor acknowledged in c~oss examination that he thol1-ght he was treated unfairly and he expressed those concerns to Ms Whitehouse. The Employer argued that the Board should be somewhat dubious of accepting the grievors statement that he did not grieve because he lacked substantiating evidence. In his examination in chief, he said that he did not have any evidence that would IIhold waterll However, in cross examination he testified that he did not apply for a later posted position because he did not think he had a prayer in receiving the job. Mr Kovac questioned how the grievor could corne to that conclusion without evidence Indeed, the Employer asserted he had evidence. The grievor knew that the Employer utilized a test which was neither written nor administered by the Ontario Police College and, that he ~------- --- , t 9 received the Blue Book later then other employers which he was told not to study Surely, all of these facts would go to evidence substantiating a grievance which alleged unfairness of a job competition. The Employer contended that in accordance with the language of article 6.01, the grievor had a complaint with respect to the application and administration of the Collective Agreement, specifically about the selection process lMr Kovac submitted that article 6 01 considers a subjective awareness test. However, in the instant case, the grievor was subjectively aware of all of the necessary elements of his grievance as of September 18, 1992. i The Employer asserted that the Board cannot accept that the grievor does not have a complaint until he has adequate evidence to win his grievance Simply put, the Collective Agreement does not provide for that interpretation. The grievance procedure has been likened to a discovery mechanism. It allows complete discussion and affords the parties an opportunity to adjust complaints and differences expeditiously In the instant matter, the grievor had a complaint in September 1992, and spoke with two management personnel about that complaint. He cannot resurrect the matter months later when he thinks he has a better opportunity of being successful. UNION SUBMISSIONS --.-- < f 10 The Union argued that the collective agreement, specifically article 601, provides that the parties negotiated a subjective test regarding the awareness of grievances. Mr Wright, for the Union suggested that, notwithstanding suggestions to the contrary, the Employer is trying to restrict the decision in Pierre (supra) The Union contended that article 6.13 of the collective agreement provides that policy grievances are written clearly in a way that removes subjectivity It states 6.13 POLICY GRIEVANCE The Union shall have the right to .file a grievance based on a difference arising directly from the Niagara Parks Commission concerning the alleged violation of this Agreement. However, such grievance shall not include any matter upon which an Employee(s) is personally entitled to grieve and the regular grievance procedure shall not be thereby by-passed. Such grievance shall be presented in writing signed by the Union's President or Vice-President to the Chief of Police with a copy to the Director of Human Resources within (30) days following the occurrence of origination of the circumstances giving rise the grievance commencing, at stage two (2) of the Grievance Procedure. The Union argued that in the Pierre decision (supra), the Board was persuaded there is a substantial difference between the language found with respect to individual grievances and that of policy grievances. The difference is subjective awareness. The Union asked the Board to reject the Employer's suggestion that the clock started ticking when the grievor became aware, on September 18, 1992, that he did not receive the job The Pierre (supra) decision was clear that the clock does not start to tick at this point. The Board decided that the test is not whether the grievor or the Union is right about whether there are grounds for a grievance to be filed. The proper test is whether --- . f 11 they had an honest and subjective opinion that a grievance could be filed. In the instant case, the grievor knew the results of the job competition in September 1992. However, his evidence was clear that he did not think he had a gnevance until after his discussion with Sergeant Clark in December 1992. The grievor's belief was based on his considerable experience as a police officer He clearly testified that he had no evide~ce that would substantiate a grievance. The issue for thiS Board is not whether his belief was correct. Indeed, the Board need not concern itself with the grievors belief, except to the extent of deciding whether his was a subjective and honest belief as was done in t..l-te Piene (supra) decision. In the instant case, the Board can come to no other conclusion I but to find that the grievor honestly believed that he had a grievance o:h1y as of December 8, 1992. His -evidence on this point, even under rigorous cross examination, was unwavering .\ Mr Wright suggested the Board should ask why would the grievoJ:' have waited until December 1992, to file the grievance unless his subjective view was that he did not have a grievance until that point? The uncontradicted evidence was that the circumstances which triggered the filing of the grievance in December 1992, was the grievor's discussion with Sergeant Clark. The fact that the grievor did not think he had a grievance until December 1992, was clear in his letter to the Chief of Police dated December 29, 1992. Promptly after being told by Sergeant Clark that he was not treated fairly in the job competition, the grievor acted quickly to take the appropriate steps. - ---+ ~ . 12 DECISION In OLBEU (Gordon) and Liquor Control Board ofOntarioJ 0048/89, the Board considered whether a grievance, that alleged the Employer was not assigning hours of work according to seniority, was out of time. In arriving at their conclusion, the panel took into account the decision of the Divisional Court regarding Pierre which had been recently issued. In the Gordon (supra) decision, Vice Chairman Dissanayake stated, at page 15 in our view the "circumstances. giving rise to such a complaint or difference are two fold. First, there must be a right under the collective agreement. Second, there must be an act or omission by a party to the agreement which the other party feels has abridged or contravened that right. Before an employee can be said to become aware "the circumstances giving rise to the complaint or difference" under Article 27 3 (a)(Q, he or she must be aware of both the existence of a right and a factual basis which may contravene that right. As under the OPSEU agreement, the parties, by alluding to the employee's awareness, have intended to introduce a subjective test. The intent is that an employee must act expeditiously once he or she becomes aware that a right under the collective agreement may have been contravened. In the Pierre (supra) decision, the Board stated that, prior to January 1990, "the grievor had neither the lmowledge nor the belief that her concerns were amenable to resolution under the collective agreement" In the instant case, we are of the view that the grievor did not realize there was a "factual basis which may contravene" a right under the collective agreement until his discussic:m with Sergeant Clark on December 8, 19'92. In our view, the grievor was probably not correct in deciding that he could not file a grievance unless he had "testimonial evidence" to substantiate his view However, the issue of whether the grievor was right or wrong is a matter which is completely irrelevant for the purposes of I deciding this issue Based on his considerable experience with the judicial system, the grievor honestly and sincerely believed that he did not have a grievance until sllch time I . : ,. t 13 as he had evidence to substantiate his allegations that the collective agreement had been violated. While it was clear that, even before the test was administered, the grievor had concerns that the process was not fair, it was equally clear that fairness, in the grievor's mind, does no~ equate to his ability to file a grievance. In rigorous cross examination, the grievor was asked, on .a number of occasions, why he did not file a grievance in September 1992. In response, the grievor said that he did not have a grievance in September 1992, he did not have any grievance until December 8, 1992. The grievor's letter to the Chief of Police which was written immediately after being told that his grievance was out of time, substantiates our view that the grievor sincerely and honestly believed that he had a grievance as of December 8, 1992. The subjective test which has been endorsed by Divisional Court is one which will be visited and revisited often by this Board. By its very nature, a subjective test will require I assessment of the individual facts and the grievor's credibility as to their subjective awareness. While are sensitive to the Employer's concerns that a decision for the grievor could leave employers not knowing when lithe clock starts to tick', the rationale for the subjective test may have included ensuring that individuals are not foreclosed from asserting their rights - ^ - - .- - ,.' .~- , t 14 under the collective agreement because of misinformation or ignorance In our view, such an approach makes good labour relations sense It was stated by O'Leary J writing for the Court in The Queen in J;ij.ght of Ontario as represented by the Ministry of Correctional Services v Ontario Public Service Employees Union and the Grievance Settlement Board (September 5, 1990), 74 O.R. (2d), at page 704 Immediately after hearing this application for judicial review, the court disposed of the application by the following endorsement: 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 kind 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 convention of this agreement, including any question as to whether a matter is arbitrable" The grievor knew at [east by November, 1985 that she was unhappy about a possible exposure to T B., but she was not aware until late February, 1989 that such exposure might constitute a complaint or difference with her employer arising out of a contravention by it of the collective agreement. In the instant case, the grievor knew that he was "not happyl about the process of the job competition and his failure to be given the position of Sergeant in September 1992. Additionally, he was "not happy' about particular issues such as the author and administrator of the test to be applied. However, it was not until December 8, 1992, after his discussion with Sergeant Clarke, that he honestly and sincerely beheved that he had a complaint or difference arising out of the collective agreement about the job competition. ~ ~ >< ~ f.i 2 15 I For all of those reasons, we find that the preliminary objection of the Employer is dismissed. Dated this 5th day of J u 1 y in Toronto, 1994. / / _ ,?>; -~ ( ,-'. --1 / I I ) df 1->-, /;i I ,I f / . ,( ,'/ ..;,/, /,t., r Felicity b Bri~s - I ' Vice Chair I / ~J ~/1 Michael Lyon Member Cf~~~ John Miles Member