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HomeMy WebLinkAbout1994-1393BETTS95_06_28 (j\ ONTARIO EMPLOYES DE LA COURONNE ~\;.rv' CROWN EMPLOYEES DE L'ONTARIO ~~ 'l. (.1 /' 1111 GRIEVANCE COMMISSION DE rti~\ If' ""I' , SETTLEMENT REGLEMENT \)\Jc G. () 1.y6 <- BOARD DES GRIEFS ~~.~. tJ <.,!) 0r\~ ~t H'\'Yv- ~~~\.\J Cfv tJ.,~ t A ~ V 180 DUNDAS STREET WEST SUITE 2100 TORONTO, ONTARIO. M5G lZ8 Ii f lJlt TELEPHONE/TELEPHONE (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE /Tf:UtCOPIE {4161 326-1396 ~~~~J~;~...,..~ RECEIVED GSB # 1393/94 OPSEU # 94G174-177 JUN 2 9 1995 IN THE HATTER OF AN ARBITRATION PUtiLiI.J ~ERVICE Under L APPEAL BOARDS THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Betts et al) Grievor - and - The Crown in Right of ontario (Ministry of culture, Tourism & Recreation) Employer BEFORE S Kaufman Vice-Chairperson T. Browes-Bugden Member M. Milich Member FOR THE B Ahad GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE R Kramer EMPLOYER Law Officer Crown Law Office Civil Ministry of the Attorney General HEARING February 21, 1995 1 INTERIM DECISION This is a grievance pertalning to the grievors' claim of entitlement to Supplementary Unemployment Benefits under the Supplementary Unemployment Benefits (SUB) Plan in the collec- tive agreement This decision deals with the preliminary objection of the employer as to jurisdiction. The employer submitted that as the grievances were filed 8 months after an article in Topical indicating the availabi- lity of the benefit the grievors are claiming, they are out of time pursuant to the 20-day time limit in Art. 27 2 1 and are therefore deemed to have been withdrawn The union argued that because parties to a collective agreement cannot contract of a statutory obligation, i.e. to comply with the Human Rights Code, R.S.O. 1990, c. H.19, there were no time limits to complaints falling under the Code, and the Art. 27.2.1 time limits do not apply to such complaints. It submitted that this Board can also assume jurisdiction of this matter under its authority under s. 45(8) of the Labour Relations Act, R.S O. 1990, c L 2. It referred us to Placer Dome Inc. (Detour Lake Mine) and U.S.W.A.. Local 9171 (1993), 39 L.A.C. (4th) 54 (Simmons) and to the decision of Arbitrator Fisher in Metropolitan Toronto (Municipality) referred to in Placer Dome The union argued in the alternative that the grievors each became subjectively aware that s/he had a complaint arising out of the collective agreement within 20 days prior to the day upon which each filed his/her grievance, and that the employer had raised the timeliness issue for the first time on the first day of the hearing, and that in not dis- closing its objection at the earliest possible date, e g. at Step 1 or Step 2, it had waived its right to raise a timeli- ness objection thereafter. 2 Evidence was heard from Beverley Alder, a member of the bargaining unit and wife of grievor Randy Betts, and from Jessy John and Brett Tanaka as to when each first became aware that they had a complaint arising out of the collective agreement. Each of the grievors denied having seen the article in Topical. There was no evidence or suggestion that that edition of Topical had been received directly by any of the grievors. The panel finds that grievor Randy Betts first became aware that he had a complaint arising out of the collective agreement on or shortly after August 31, 1994, when his wife showed him a copy of her grievance dated August 31, 1994. His grievance is dated September 19, 1994. The panel finds that grievor Jessy John first became aware that she had a complaint arising out of the collective agreement when Randy Betts informed her of his grievance, dated September 19, 1994. Ms. John's grievance is dated September 21, 1995 The panel finds that grievor Brett Tanaka first became aware that he may have had a complaint arising out of the collective agreement on or about September 23, 1994. His grievance is dated October 5, 1994 The test of when the time limit in Art. 27.2.1 starts to run is a subjective test, i e time begins to run when the employee first becomes subjectively aware that s/he has a complaint arising out of the collective agreement: Pierre, 492/86, a decision of the GSB which was upheld on judicial review by the Ontario Divisional Court on September 5, 1990 (unreported) The panel rejects the submission that the sub- jective test in pierre no longer applies by virtue of the Crown Employees' Collective Bargaining Act, s.o. 1993, c 38 3 We can find nothing in that Act that would expunge, quash or weaken the interpretation of Art 27 2.1 in Pierre, supra Applying that test, and in view of our findings, we conclude that each of the grievances was filed within the 20- day time limit prescribed in Art. 27 2.1. The employer did not dispute the union's submission that the employer raised the timeliness issue for the first time on the first day of the hearing. In Fung/Anand, 1798/89, 104/90, the board reviewed the principles respecting waiver in earlier cases and stated 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 objec- tion .. The fact that the objection was made prior to the hearing or the eve of the hearing does not affect the operation of the waiver. Once a timeliness objection has been waived it cannot be revived by notice. Fair play and the interests of both parties in the disclosure of technical objections at the earliest possible date, so as to enable the parties to resolve grievances at the earliest possible date in the grievance and arbitration procedure, underly the rules regarding waiver of technical objections. We see no reason to depart from the rules regarding waiver in this case. We therefore also conclude that the employer, in failing to raise the timeliness issue during the Step 1 or 2 proceed- ings, waived the timeliness objection Because the panel has concluded that it has the juris- diction to hear the grievances on the merits under Art 27.2 1 of the collective agreement and pursuant to Board jurisprudence, it is not necessary to find a further source 4 of jurisdiction or determine the effect, if any, of s. 45(8) of the Labour Relations Act and of the Human Rights Code on our jurisdiction Accordingly, the employer's preliminary objection as to timeliness is dismissed Dated at Toronto this 28th day of June, 1995. Partial Dissent Attached Michael Milich Employer Nominee Concurs / Addendum Attached Tammy Browes-Bugden Union Nominee Partial Dissent In the matter between OPSEU (Betts et. al ) and The Ministrv of Culture Tourism and Recreation . -., - ," - .. . -".1 "- - . ~ - - .., - - -.. - - '.- (GSB # 1393/93) I agree with my colleagues that the employer by not raising the question of timeliness during the grievance procedure had waived its right to bring forward the objection at the hearing The jurisprudence with respect to this issue is well established While I continue to have reservations regarding how the test is applied I agree that the test for an individual grievance continues to be the subjective awareness test as expressed in Pierre 492/92 and upheld by the Ontario Divisional Court. However, I suggest that, once we determined that the employer had waived its right to raise the timeliness objection, there was no need for a finding with respect to the grievors' subjective awareness of whether they had a complaint under the collective agreement. In order to make this determinatIon, the decision effectively rejects an article in Topical as a mechanism of communicating policy changes to the public service which is sufficient to establish for the purposes of Article 27 a presumption of awareness by t~ employees of the changes initiated by t~ employer to the Supplementary Unemployment Benefits Plan It is on this latter point that I disagree with my colleagues Topical and its sister publication Job Mart are two of the means by which the employer is able to inform its employees on a wide range of subjects which include job vacanCies and as in this case policy initiatives This publication is, in this member's opinion, akin to postings on a bulletin board Posting is a method of disseminating information generally considered appropriate whether it is the posting of job vacancies, the Ontario Occupational Health and Safety Act, or a pay equity plan as required under its respective legislation It is generally accepted, and in the latter two instances by statute that the posting is sufficient to establish an awareness of the issue posted without a further requirement that employees receive individual notification of the information posted. In these times of fiscal restraint, it would be counter-productive to require the employer to ensure some form of direct delivery of notice to each employee before a panel of this Board would deem that awareness was established and the time frames of the agreement commenced. This is particularly onerous considering the size of the public service I further submIt that the validity of using postings as a general vehicle of communication is based to some extent on a perception that there is a positive obligation on the part of the employees to remain informed of their rights This obligation, t believe, also extends to an employee's knowledge of the collective agreement. There is no reason why an article in Topical should not have the same effect I do not believe that in drafting Article 27, the parties intended that the test be so open-ended that any denial Of awareness by a grievor would for the purposes of the article wipe out all reasonable steps taken by the employer to inform employees If the test is that open. it would effectively gut the purpose of the time limit requirements in the agreement to deal with a problem as close in time to the occurence as possible. not some months or years later For these reasons, 'would have found that the article in Topical was appropriate notice to employees regarding the change in policy and that the time limits ;n Articte 27 commenced at the time of ns publication. Michael Milich A/~j;J GSB '1393/94 etc. OPSEU '94G174-177 OPSEU (Betts et al) AND THE CROWN RIGHT OF ONTARIO (OntarIo ScIence Centre) ADDBNDUM .......=............=............................===.=-_....=-==. The Union advanced in its p~ima~y argument, that whe~e a g~ievance alleges a breach of the Human Rights Code, the time limits that are in Article 27 of the Collective Ag~ee.ent a~e not applicable. The Human Rights Code, with respect to tlae lImits, takes precedence as grievors' rights cannot be restricted, and grievors have a right to challenge the code. Therefore, notwithstanding the flncUngs in the award, I would have also made a finding on this persuasive argument and dismissed the employer's preliminary objection on this ground as well. - T. Browes-Bugden Union Nominee