HomeMy WebLinkAbout1994-1386GANGASINGH95_09_07
ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
1111 GRIEVANCE CpMMISSION DE
/
SETTLEMENT REGLEMENT C /
BOARD DES GRIEFS 'fS f' .:l~
't' ().'
\ ,<"
180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO M5G IZ8 ""j'
TELEPHONE ITrtEPHONE (416) 326-1388
180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE ITELECOPIE (416) 326-1396
'_~'~__",'___.__'A~_' .___ __ ._~ - -i GSB # 1386/94
.
l. J OPSEU # 94G188
~... I...:. 'I -. ..l
~EP 1 8 1995
IN THE MATTER OF AN ARBITRATION
" ......
I \-'(j....;U.....;' vel-I" I....,,!:: Under
I APPEAL BOARDS
I
THE CROWN EMPLO~EES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Gangasingh)
Grievor
- and -
The Crown in Right of Ontario
(Metropolitan Toronto Housing Authority)
Employer
BEFORE L Mikus Vice-Chairperson
FOR THE C Flood
GRIEVOR Counsel
Koskie & Minsky
Barristers & Solicitors
FOR THE G Anand
EMPLOYER Counsel
Miller Thomson
Barristers & Solicitors
HEARING May 23, 1995
The griever, Ken Gangasmgh, is a Telecommunications Co-ordmator with the Metro
Toronto Housing Authority (hereinafter referred to as the "MTHA") He asks that letters
of discipline dated March 16, June 2, and July 7,1994, be removed from his personnel file
During the grievance procedure, the letter of March 16, 1994, was withdrawn leaving two
letters outstanding As a preliminary matter, the MTHA objected to the grievance on the
grounds of timeliness. It asked the Board to decide the preliminary matter before hearing
the merits. The Union took the position that the evidence concerning the preliminary
matter would be the same evidence as that on the merits and asked the Board to hear to
proceed on both. It was the decision of the Board that the parties proceed on the
preliminary matter alone
The grievor has been President of Local 592 since 1991 He testified that during his
period in office he has been a vocal critic of the management at MTHA. In 1991, OPSEU
and CUPE were involved in a joint presentation to the then Minister of Housing, Evelyn
Gigantes, concerning allegations of mismanagement at the MTHA, including allegations
of human rights violations and sexual harassment. Ms. Gigantes directed the MTHA to
respond to those allegations and a Senior Management Forum was ultimately established
which eventually resulted in as report to the Board of Directors. As a result of those
findings, the grievor stated that the General Manger of the MTHA publicly admitted that
the allegations were valid. Soon after that admission, the General Manger and Director
of Race Relations were replaced. Ms Pat O'Connell was the new General Manager and,
in early 1994, she invited the grievor to address the Board of Directors about the past and
1
2
present conditions at the MTHA. While not specifically critical of the new General
Manger, he did comment on the fact that the human rights violations had increased and
that the only difference between the new and old management was that they were now
able to communicate on a limited level.
Following that presentation, Ms. O'Connell advised the grievor that she wanted to discuss
some labour relations issues with him. At the meeting she told the grievor that she had
received some disturbing information from an employee who alleged that he had harassed
another employee. She agreed to speak to another employee who witnessed the incident
and, a few days later, called the grievor to further discuss the incident. A few days after
that discussion, the grievor received the June 2, 1994 letter
That letter concerned an incident in the Copy Centre on May 12, 1994 which, in the
opinion of the Employer, resulted from the unacceptable behaviour of the grievor The
letter was marked Personal and Confidential and was copied to Pat O'Niell, who was
Chair of the Board of Directors at the time and Bob Ballantyne, Manager of Human
Resources. On the top of the letter was written lice personnel file. The grievor's copy,
however, contained no such notation. In the letter it was stated:
..As I explained in this meeting and in others, you are the President of OPSEU, and by
virtue of that position your actions and words have weight beyond that of other employees.
As I noted, your actions in this instance are totally unacceptable and must never recur...
The grievor testified that when he received the letter he was shocked. He was of the
opinion that someone he trusted was working with the MTHA to conjure up "thingsll
against him. He responded in a letter dated June 16, 1994, denying the allegations of
/'
3
harassment and stating, in part, the folloWlng'
.It strikes me that, by virtue of your position as General Manager, your involvement would
naturally instill fear and trepidation in any employees without seniority who was (sic) hoping
to gain permanent status. This in (sic) appropriate involvement of the General Manager
is most unusual and leads me to believe that there must be an underlying reason for it.
This I will, as you suggest, take most seriously I sincerely hope that we can put the matter
to rest through this correspondence.
I thank you for your advise and counsel on the proper manner of conduct for the President
of a local union. Pat, taking ones position, or ones self, too seriously does not provide a
healthy balance in ones life. It's okay to have the odd light moment, even while at work.
You have suggested that 1 attend at the Copy Centre only when 1 have business there. 1
will be pleased to continue to do just that. 1 consider this to be only instruction that 1 have
received in the issue.
I, too, value our working relationship. I must, therefore, request that you retract the June
2, 1994 letter and ensure that it is not part of my personnel file, or any other record or file.
The letter was signed be the grievor as President of OPSEU, Local #692. He testified that
he believed the incident referred to in the June 2, 1994, letter was not related to his
position as an employee but rather to his activities as Local President. For the same
reason he did not file a grievance at the time.
By letter dated July 7, 1994, the grievor was advised by Ms. O'Connell that:
The details of the incident were brought directly to my attention and the concern, as
expressed to me, was very real. For that reason, the letter must remain a matter of record
on your personnel file.
The grievor testified that he did not file a grievance immediately because he wanted to
have a look at his file and verify that the letter was, in fact, in it. He had learned through
the Union that, if it was on his file, it should be grieved and that, if he was unaware it was
on his file, it could not be used against him.
He testified he made several requests to see his file but was told that the clerks or
4
advisors he spoke to would have to get back to him. He did fInally see the file in
September of 1994 and immediately filed the instant grievance.
He was asked in cross-examination why, given the clear language of the July letter, he
needed to verify the presence of the letter on his file. He replied that, at the MTHA, he
did not believe anything nntil he saw it with his own eyes.
Mr Ballantyne testifIed that he only became aware of the grievance two or three days
after it was signed. He never personally received a request from the grievor to review his
file. He testified that there were three advisors in his department and the grievor would
have approached them first, although, in the past the grievor had approached him directly
In fact, he stated that the grievor had filed several grievances in the past and that,
depending on the issue, would approach various levels of management to deal with them.
It was his evidence that he or the advisors try to accommodate all similar requests as
expeditiously as possible, within a few days. At no time after the filing of the grievance,
including the grievance meeting of December, did the grievor advise him that he had been
unable to review his file in the interval, even after the MTHA denied the grievance on the
basis of timeliness.
ARGUMENT
Ms Anand, counsel for the MTHA, referred to the grievance procedure in the collective
5
agreement, specifically article 20 which states that grievances are to be adjusted as
quickly as possible and that a compliant must be discussed with the immediate supervisor
within 20 days of the grievor fIrst becoming aware of the complaint. If the complaint is not
settled within 7 days, the grievor has a further 10 days to file a written grievance and,
failing settlement, a further 10 days to refer the grievance to stage two The jurisprudence
is clear Those time limits are mandatory Failure to comply with those time limits means
that the grievances are deemed to have been withdrawn.
In the instant grievance, the evidence has shown that the grievor was aware of the
provisions of the collective agreement. He has filed grievances in the past and knows that
if there was a letter of discipline on a file, it should be grieved. The evidence has also
shown that the grievor was aware, at least by July 7, 1994, that the letter of June 2, 1994,
was going to be placed on his file. The time limits began at that point.
Ms. Anand argued that the explanation offered by the grievor was simply not credible
The grievor was familiar with the personnel in the Human Resource department and with
the procedures for reviewing employee files. If he had an objection with the way his
request was handled, he should have raised it at the time, not eight weeks later
Ms Anand allowed that the Board has discretion to extend the time limits under a
collective agreement but argued that this not an appropriate case to do so No
reasonable grounds were given for the delay and therefore there are no grounds upon
6
which this Board can rely to exercise its discretion.
Mr Flood, counsel for the Union, referred the Board to the case of Re Ontario (Minister
of Correctional Services) v O.P.S.E.U (1990), 74 O.R (2d) 700 (Divisional Court) That
decision was an appeal of a Board of Arbitration decision (Pierre, 0492/86) wherein it was
determined that time limits in the grievance procedure of the collective agreement begin
once the grievor is aware of or knows that there has been a violation of the collective
agreement and not when the incident giving rise to the grievance occurs. The Divisional
Court unanimously approved that decision and dismissed the appeal. That decision was
followed in the cases of Re Ministry of Environment and OPSEU (Vandenheuvel et at
(1992),0286/91 (W.Low) and Re Liquor Control Board of Ontario and OPSEU (Gordon)
(1991), 0048/89 (Dissanayake) In the Vandenheuvel case (supra), the Board determined
that, since it was the employer's motion to dismiss the multiple grievances, the onus was
on it to prove that the grievor had the requisite subjective belief that they had a grievance,
which, in the case before it, was that the grievors had a belief that they had cause to
complain. The Union took the position that those cases were binding on this Board eRe
Toronto Area Transit Operating Authority and .Amalgamated Transit Union (Blake et al)
(1988), 1276/87 (Shime)
It argued that, in the instant case, the employer has failed to demonstrate that the grievor
knew he had a valid grievance. Mr Flood took the position that the letters of June 2 and
July 7, 1994, are not models of clarity The jurisprudence indicates that the differentiation
- -
7
between a disciplinary and non-disciplinary letter is complex. The grievor was unsure of
the nature of the letter and waited until he was sure he had a grievance. Once he was
satisfied he did, he acted promptly On that basis the MTHA's preliminary objection must
be dismissed.
In addition, the Union took the position that the Board should exercise its discretion under
the Labour Relations Act RS.O 1990, c. L.2 and the Crown Employees Collective
Bargaining Act 1993 and extend the time limits under the collective agreement. It referred
to the cases of Re Becker Milk Company Ltd and Teamstem Union, Local 647 (1978), 19
LAC (2d) 217 (Burkett) and Re Toronto General Hospital and Ontario NUIBes Association
(1983), 9 LAC (3d) 91 (Teplitsky) It argued that the delay has been relatively short
while the substance of the grievance is significant. The grievor believes that the letters
are the result of discrimination based on union activity That issue must be resolved. In
the circumstances it argued that the Board should extend the time limits and hear the
grievance on its merits.
DECISION
There are two issues before this Board. The first is whether the grievance was filed in a
timely fashion consistent with the Pierre decision (supra) If the answer to that question
is negative, the second issue is whether, in the circumstances of this case, I should
exercise my discretion under section 45 of the Labour Relations Act to extend the time
8
limits under the collectIve agreement.
Dealing with the first question, I agree with the Union that I am bound by the Pierre and
subsequent decisions. I adopt the comments of Arbitrator Shime in the Blake decision
(supra) wherein he stated that each decision by a panel is a decision of the Grievance
Settlement Board (Hereinafter called the t1GSBtI) and that it would require exceptional
circumstances to persuade a Board to depart from the jurisprudence of other GSB
tribunals.
It becomes then a question of fact as to whether the evidence regarding timeliness in this
case assists the Union. In my opinion, it does not. There could have been no doubt in
the grievor's mind, after reading the letter of July 7, 1994, that the letter of June 2, 1994
was placed on his file as a disciplinary measure. The June 2, 1994 letter stated clearly that
the alleged behaviour was IItotally unacceptable and must never recut' The grievor was
told to take the matter seriously and was asked not to attend the Copy Centre unless
specifically required to do so. There could have been no uncertainty about the tone of
that letter The grievor was being censured about his behaviour and cautioned not to
repeat it. When he was advised in clear terms on July 7, 1994, that the letter was to
remain on his file, he knew, or ought to have known, that he had a difference or dispute
with the employer's actions. Unlike the grievor in the Pierre decision, this grievor is an
experienced Union executive member who, in his personal and professional capacity, has
had occasion to process many grievances. He knew the grievance procedure and
9
testified that, once a member knows there is a letter on his/her file, he/she should file a
grievance to challenge that letter I do not accept his assertion that he was unsure about
whether the letter was on his file and whether it was disciplinary in nature Having found
that he knew, by July 7, 1994 at the latest, that the letter of June 2, 1994, had been placed
on his file, he did not file a grievance about that letter until September 23, 1994. The
grievance was therefore filed outside of the time limits set out in the grievance procedure
of the collective agreement.
Having determined that the grievance was filed outside of the time limits, the next issue
is whether this is an appropriate case for me to exercise my discretion to extend the time
limits and allow the grievance to proceed on its merits.
Section 45 (8.3) of the Labour Relations .Act reads as follows
Extension of time. - An arbitrator or board of arbitration may extend the time for any step
in the grievance or arbitration procedure under a collective agreement, despite the
expiration of the time, if he, she or it is satisfied that there are reasonable grounds for the
extension and that the opposite party will not be substantially prejudiced by the extension.
In considering section 37(5a) of the Labour Relations .Act R.S.O 1970, c.232, which is
virtually identical to s 45(8.3), the Board in the Becker Milk case (supra) said the
following at page 220.
The exercise of the equitable discretion vested in an arbitrator under s.37 (Sa) of the Act
requires a consideration of at least three factors. These are: (i) the reason for the delay
given by the offending party; the length of the delay; (ill) the nature of the grievance. If the
offending party satisfies an arbitrator, notwithstanding the delay, that it acted with due
diligence, then, if there has been no prejudice the arbitrator should exercise his discretion
in favour of extending the time-limits. If, however, the offending party has been negligent
or is otherwise to blame for the delay, either in part or in whole, the arbitrator must
nevertheless consider the second and third factors referred to above in deciding if
reasonable grounds exist for an extension of the time-limits.
'"
10
These factors have been accepted by most arbitrators as appropriate considerations in
determining whether to exercise discretion to relieve against the strict time limits of a
collective agreement. In applying those factors to the instant case, I have rejected the
reasons given by the grievor for the delay in the instant case. With respect to the second
factor, the grievor knew or ought to have known by July 7, 1994, that the June 2, 1994,
letter was being placed on his file as a disciplinary measure. The grievance is dated
September 23, 1994, some three months later That is more than three months after the
time limits set out in the collective agreement and is, in the circumstances of this case, a
significant delay
With respect to the third factor, I am dealing with a letter of warning, which, in the scheme
of progressive discipline, is not as compelling as a grievance concerning a discharge or
lengthy suspension. The Union argued that the underpinnings of the grievance are a
claim of discrimination based on Union activity Be that as it may, the actual grievance
before me concerns a letter of discipline. Given the nature of the grievance and the
absence of any reasonable grounds for the delay, I am not persuaded that I should
exercise my discretion in favour of the grievor For the reasons stated above, the
grievance is dismissed. The Registrar of the GSB can release the dates set aside for
further hearings on this matter.
Dated this 7th day of September, 1995 at Toronto.
~ /k~
Loretta Mikus
Vice-Chair