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HomeMy WebLinkAbout1997-2216.WICKEN98_06_12 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT ; BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (416) 326-139<5 GSB#2216/97 OLB#39/98 IN THE MA TIER OF AN ARBITRA nON Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Wicken) Grievor - and - The Crown m Right of Ontano (LIquor Control Board of Ontano) Employer BEFORE P Knopf Vice-ChaIr FOR THE J Noble UNION Legal Counsel OntarIo LIquor Board Employees Uruon FOR THE A Renton EMPLOYER Counsel Liquor Control Board of Ontano HEARING May 6 and 21, 1998 . ThIs IS a dIscharge gnevance The Employer has raIsed a prelImmary ObjectIOn to the tImelmess of the gnevance The gnevance was filed 16 months after the gnevor receIved hIs notIce oftermmatIon. The collectIve agreement provIdes 273 (a) (i) An employee who has a complamt or a dIfference shall dIscuss the complamt or dIfference wIth hIs/her supervIsor as desIgnated by the Employers, wIthm ten (10) days of the employee first becommg aware of the CIrcumstances gIvmg nse to the complamt or dIfference 277 An employee claIrmng he/she has been dIsmIssed wIthout Just cause shall be entItled to file a gnevance commencmg at STAGE 3 provIded he/she does so wIthIn ten (10) days of the date of the dIsmIssal 27 12 Where a gnevance IS not processed wIthm the tIme allowed or has not been processed by the employee or the Umon wIthm the tlme prescribed It shall be deemed to have been wIthdrawn. The Umon asserts that the gnevance should be consIdered tImely by the applIcatIOn of a subJ ectIve test of tlmelIness In the alternatIve, the UnIon asks that the arbItrator exerCIse the JunsdIctIOn available under Sectlon 48(16) of the Labour RelatlOns Act to extend the tIme for the filmg of the gnevance The facts are somewhat unusual. The gnevor worked as a permanent part- tIme employee and had semonty of approXimately SIX years at the tIme of the terrmnatIon. He IS classIfied as LIquor Store Clerk Grade 3 In the spnng of 1993 the gnevor sustamed mJunes as a result of an aCCIdent between a van and a bIcycle These mJunes were so sIgruficant that smce that tIme he was off work and In receIpt of no fault pnvate long term dIsabilIty payments - 2 - The Employer alleges that In August 1996, the gnevor purchased SIX bottles of alcohol that were not processed through the cash regIster properly by another lIquor store employee The polIce were called In to InVestIgate Fraud related charges were laId agamst both the gnevor and the cashIer who had processed hIS purchase At the tIme ofrus purchase the gnevor had the status of an employee although he had been off work for approXimately three years On August 15, 1996 the gnevor was Issued a Notice OfIntended DIscIplme (NOID) The NOID mVIted the gnevor to provide a wntten explanatIon of hIS actIOns wIthm three days The gnevor testIfied that he wrote such an explanatIOn and mailed It by way of regIstered letter to the Employer The gnevor testified that the letter was later returned to hIm because of problems wIth the address on the envelope he had mailed. The gnevor adrruts that he made no other attempts to contact the Employer about respondmg to the NOID or eXplaInIng that rus registered letter had gone astray The gnevor testIfied that he felt at the tIme that hIS three-day opportUnIty to respond had passed and that the Employer would go ahead and make the decIsion wIthout hIS mput. He deCIded to WaIt to see what the outcome of the dIscIplInary process would be On September 16, 1996 the Employer wrote a letter of dIscharge to the gnevor terrrunatmg hIS employment based on the events In August The gnevor acknowledges receIvmg trus letter He claIms that when he receIved the termmatlOn letter he phoned the UnIon office and spoke to a male UnIon representatIve who told hIm that because he had been off the payroll and not paymg UnIon dues for a number of years the Ulllon "could not do anytrung" for rum. The gnevor belIeves that thIS advIce came from the UnIon's MissIssauga office Up to that pomt the gnevor had been under the ImpressIOn that rus senIonty and UnIon membersrup were In tact . - 3 - The gnevor testIfied that he then proceeded to seek advIce from cIvIl lawyers about hIS nghts He claIms that he consulted lawyers In the law firm that was handlmg ills personal mJury and benefit claIms That law firm had recently sent a letter to ills employer dated July 23, 1996 concerrung ills return to work and warnmg of a potentIal gnevance bemg filed Insofar as the dIscIplme was concerned, the gnevor testIfied that he was advIsed by that law firm that he should clear hImself of the cnmmal charges first and then proceed to a CIvIl actIon. He dId not mstruct that law firm to prepare an unlawful dIsmIssal SUIt or to contact the UnIon to have It file a gnevance on hIS behalf The gnevor cannot recall the name of the lawyer who gave tills advIce He saId he was never billed for the OpInIOn. The gnevor claIms he also sought a second opmIOn from another CIVIl lawyer and receIved telephone advIce that smce he was In the mIdst of cnmmal proceedmgs he should awaIt the outcome of that actIon and then get m contact wIth that lawyer agam about a possible cIvil SUIt. AgaIn, the gnevor says that he was not charged for tills advIce The gnevor also testIfied that he asked hIS cnmInallawyer about the dIscharge That lawyer was reluctant to gIve any advIce saymg that labour and employment law "are not hIS specIalty" The gnevor was never advIsed by anyone to file a gnevance or to take actIOn agamst the UnIon to compel It to process a gnevance on hIS behalf The cnrmnal charges proceeded through 15 months of remands untIl January 22, 1998 when the Crown wIthdrew the charges The gnevor testIfied that hIS cnmmallawyer mformed illm that the Crown had first tned to suggest that the charges be wIthdrawn on the condItIon that the gnevor agree not to challenge or gneve the - 4 - terrmnatIOn. The gnevor's cnmmallawyer would not agree to such condItIOns and the Crown then wIthdrew the charges uncondItIOnally The gnevor testIfied that It was at that pomt that he understood that he could file a gnevance once he had been "cleared" of any cnrmnal charges The next day he phoned the UnIon office, was put m touch wIth Jean Chaykowsky who had acted on hIs behalf a few years earlIer settlmg a gnevance for hIm. The gnevor mstructed Ms Chaykowsky to file a gnevance concernIng the dIscharge on ills behalf She dId so that very same day The gnevor adrmts that he was not m contact wIth anyone at the LCBO between the tIme of hIs termmatIOn and the filmg of the gnevance The Employer was not aware that the gnevor was ever contemplatIng challengmg the dIscharge or the cnmmal charges The eVIdence also establIshed that there IS some uncertamty as to whether the LCBO's cash regIster receIpts for the relevant day have been mIslaId These receIpts would be necessary for proof of the cnmmal charges and the dIscharge case The detaIls of the problems wIth the locatIOn of those cash regIster receIpts need not be recorded here Suffice to say that the Employer IS only certam that It IS m possessIOn of "lIght" photocopIes of the ongmal cash regIster receipts ThIS could have potentIally caused a senous problem wIth the presentatIon of a discharge case If thIs case proceeded on ItS ments However, the UnIon stIpulated that If that matter dId proceed on Its ments the UnIon would not argue that the Employer had not made out a case for a dIscharge solely on the baSIS of the unavaIlabIlIty of the ongmal cash regIster tapes . - 5 - The Argument Counsel for the UnIon first argued that the gnevance has been filed m a timely manner It was sublll1tted that, on the baSIS of a subjective test, the eVIdence establIshes that the gnevor was not aware that he may have nghts under the collectIve agreement untIl the day that the cnlll1nal charges were WIthdrawn, bemg January 22, 1998 He was relymg on the adVIce he had receIved from cIVlllawyers and the mformatIOn he had receIved from the UnIon around the tIme of the charges that he could not gneve and that he should awaIt the outcome of the cnmmal charges It was argued that ArtIcle 27 3(a)(i) sets up a subjective test that creates an expectatIOn that the employee commence the gnevance process wIthm ten days of developmg an awareness of the gnevance Smce this gnevance was filed ImmedIately after the gnevor became aware of hIS nghts m January 1998, It was SaId that the gnevor has met the tImelmess reqUIrements under the collectIve agreement In support of thIS proposItIOn the UnIon relIed on the cases of OLBEU (Gordon) and Lzquor Control Board of Ontario, GSB File No 48/89, unreported deCISion of Nimal DIssanayake dated January 10,1991 and Falcioni and Lzquor Control Board of Ontario, unreported deCISIon ofW Kaplan, GSB File No 2308/91 dated July 21, 1992 In the alternatIve, the UnIon argued that this was an appropnate case to exerCIse the arbItrator's jUnSdIctIOn to relIeve agamst the time lImIts In the collectIve agreement. It was stressed that the gnevor reasonably acted upon the advice he had receIved from the UnIon and from lawyers It was argued that It was reasonable for the gnevor to accept the concept that he could not and/or should not gneve untIl the cnmmal process had been completed. Further, It was argued that smce thIS IS a discharge case With consequences so senous to the gnevor's future employment, It IS reasonable m all the - 6 - CIrcumstances to exerCIse the JunsdIctIOn to relIeve agamst the tIme lImIts m the collectIve agreement. It was stressed that the gnevor hImself IS not the cause of the delay and that he IS the mdIvIdual who IS least able to bear the cost or consequence of the delay The UnIon relIed on the followmg cases m support of ItS posItIon Aleong and LCBD, GSB File No 1318/96, umeported decIsIOn of Owen Gray dated March 10, 1997, Becker Milk Company Ltd. and Teamsters Union, Local 647 (1978), 19 L AC (2d) 217 (Burkett), Corporation of the City of Toronto and CUPE, Local 43 (1983), 12 L AC (3d) 355 (Knopf), Metropolitan Licensing CommissIOn and Canadzan Union of Public Employees, Local 79 (1995),47 L AC (4th) 182 (Spnngate), John Ziner Lumber Ltd. and Teamsters Union, Local 230 (1996),56 L AC (4th) 429 (MitchnIck) and Ferranti- Packard Transformers Ltd. and United Steelworkers of Amenca, Local 5788 (1993), 36 L AC (4th) 307 (Haeflmg) Counsel for the Employer stressed that the gnevor dId nothmg at any tIme pnor to the filIng of the actual gnevance to let thIS employer know that he mtended to challenge the gnevance Counsel for the Employer acknowledged the gnevor's testImony regardmg the regIstered letter sent m response to the NOID However, It was stressed that when that regIstered letter was returned to the gnevor, he would have realIzed that the Employer had not receIved the letter Yet the gnevor took no further steps m order to mform the Employer about hIS mtentIons AccordIngly, It was argued that the gnevor hImself IS responsible for the delay and for the lack of knowledge that the Employer had about hIs mtentIons Counsel also stressed that the gnevor was SOphIstIcated and knowledgeable about the gnevance procedure because he had filed gnevances m the past. Further, he had adVIsed the Employer of hIs IntentIOns to file a gnevance about hIS return to work even though he was not m actIve employment m July 1996 ThIS was Said to amount to eVIdence that the gnevor was aware of hIs nghts to gneve and that he should be held responsible for any delays If he chose not to pursue those nghts - 7 - Counsel for the Employer also mVIted the arbItrator to find that the gnevor was not a credible wItness The Employer challenged the veracIty of the claIm that the gnevor had ever contacted the UnIon and asked that an adverse mference be drawn agamst the UnIon for Its deCISIOn not to call any wItness to corroborate the gnevor's story Counsel for the Employer saId that the gnevor's eVIdence about hIs contact WIth the UnIon was "extremely sketchy and vague" Further, It was saId that the gnevor's eVIdence regardmg hIs mteractIon WIth the two clVlllaw firms was also "very sketchy, very vague and mconsIstent." Several mconsIstencIes m details were lIsted and saId to be mdIcatIve of eVIdence that does not deserve credence Further, the Employer took great exceptIon to the fact that the reasons for the delay m filIng the gnevance were not commumcated to the Employer untIl thIS heanng. Counsel for the Employer stressed that the delay mvolved In thIS case amounts to over 16 months and that all the cases cIted by the Umon mvolve delays of much less tIme than that Counsel for the Employer sought to dIstmgUlsh the A leong case, supra m that the delay mvolved 14 months and that the gnevor had 15 years' senIonty Counsel relIed on the followmg cases In support of the Employer's argument Greater Niagara General Hospital and 0 N.A (1981), 1 LAC (3d) 1 (SchIfl), Donwood Institute and 0 P s.E.U Local 541 (1997), 60 L AC (4th) 367 (Brandt), Clements and The Crown In Right of Ontarzo (LIquor Control Board of Ontario) (1981), 28 LAC (2d) 289 (J R.S Pnchard), Hotel-DIeu Grace HospItal and 0 N.A (1995),47 L AC (4th) 66 (Watters), Corporation of the CIty of Thunder Bay and CUP E. Local 87 (1991),20 L AC (4th) 361 Charney, Corporation of the CIty of Ottawa and Ottawa- Carleton Public Employees Union, Local 503 (1997),67 L AC (4th) 39 (DevlIn), Hotel DIeu Cornwall and 0 P s.E. U Local 469 (1997), 63 LAC (4th) 72 (R.M. Brown), Helen Henderson Care and Service Employees Umon, IocalI83 (1992), 30 L AC (4th) 150 (Emnch) and Bakery Glaco Inc. and CA. W (1991),21 LAC (4th) 116 (O'Shea) - 8 - The DecIsIOn ArbItratIOns were developed and desIgned to be an expeditIOus method of resolvmg employment dIsputes The promIse of labour peace and the removal of the threat of a strike dunng a collectIve agreement's term were exchanged for the promIse of a speedy, expert and final system of dIspute resolutIOn That IS the raIson d'etre of the gnevance arbItratIOn system. Further, the parties to this collectIve agreement have agreed that theIr gnevance process wIll commence m an expedItIOus manner They gIve themselves ten days to launch a gnevance so that a party can be put on notIce that a gnevance eXIsts and so that the partIes can begm to move towards resolutIOn. ThIs IS a common and appropnate approach. The first questIOn to address m thIS case IS whether there has been complIance wIth the terms of the collectIve agreement. DespIte the 16-month hIatus between the gnevor's receIpt of the termmatIon letter and the gnevance bemg filed, the UnIon asserts that the gnevance IS tImely because It was filed ImmedIately after the gnevor thought It was appropnate to proceed, I e upon the removal of the cnmmal charges ThIs takes us to an analysIs of the gnevor's explanatIOn that the delay IS the result of the mformatlon and adVIce he receIved from the UnIon and hIS pnvate lawyers The Employer has argued forcefully that the gnevor's explanatIOn for the delay m filmg the gnevance was vague, mconsIstent, Implausible and not worthy of credibilIty There are certamly some very strange and weak aspects to the gnevor's story The fact that the UnIon did not corroborate It IS not fatal to the gnevor's case However on balance, I am prepared to conclude that the gnevor receIved adVIce that he eIther could not or should not gneve or challenge hiS termInatIOn untIl the cnmmal process had run ItS - 9 - full course Tills advIce was wrong. It was wrong m law and was ill advIsed. The gnevor could and should have filed a gnevance as soon he became aware of hIS dIscharge But be that as It may, I am prepared to accept, for purposes of the analysIs to follow, that the gnevor had a reasonable belIef, based on adVIce received, that he should not file a gnevance until the cnmmal process was complete It IS unfortunate that the advIce was so wrong. Applymg this findIng to the situatIOn In this case, It must be SaId that whether ArtIcle 27 3 or 27 7 creates an ObjectIve or subjectIve test, the facts m thIS case lead to the conclusIOn that the gnevor filed the gnevance out of time This case IS sImIlar to the Aleong case, supra, where It was case where It was said, at page 9 The Gordon decIsIOn does not appear to me to say that the tIme lImIt described m artIcle 27 3(a) runs only when the gnevor has a thorough, detailed understandmg of the gnevance process When he [the gnevor] learned that the employer had purported to termmate hIS employment, the gnevor here already knew of the nght that he says that contravened Indeed, he already knew that a contraventIon was somethmg that could be the subject of a fight the UnIon would take up for him Accordmgly, the mterpretatlon m Gordon does not assIst the gnevor In the case before thIS Board, the facts establIsh that as soon as the gnevor receIved the notlce of terrmnatIOn he developed an mtentIOn to challenge the dIscharge WhIle he may have been rmsmformed and may not have had an appropnate understandmg of the gnevance process, he knew that he had nghts that he mtended to exerCIse He belIeved there was a contraventIOn of the collective agreement and he wanted either the UnIon or lawyers to pursue It for hIm. Further, ArtIcle 27 3 gives an employee ten days to complam after s/he first becomes "aware of the CIrcumstances glvmg nse to the complamt or dIfference" In - 10- thIS case, the gnevor was aware of hIS termmatlOn as of September 16 1996 He was aware of the nature of the allegatIOns agamst him. I am prepared to accept that he wanted to challenge the termmatIon at that tIme Therefore he knew that there was a dIspute wIth hiS employer and he also knew the CIrcumstances glvmg nse to that dIspute ThIS IS not a collectIve agreement that allows a person to gneve after s/he becomes aware of ills/her nghts The collectIve agreement contaInS the expectatIon that the gnevance wIll be filed wIthm 10 days of the gnevor becommg aware of the CIrcumstances whIch gave nse to the complamt. In the case of thIS gnevance, thIS was not done The gnevance IS clearly outsIde of the tIme hffilts contamed m the collectIve agreement ThIS takes us to the questIOn of whether thIS IS an appropnate case to exercise the dIscretIOn available under sectIOn 48( 16) of the Labour RelatlOns Act to extend the time for the filmg of the gnevance SectIOn 48( 16) provIdes Except where a collective agreement states that thIS subsection does not apply, an arbItrator or arbItratIOn board may extend the tIme for the takmg of any step m the gnevance procedure under a collectIve agreement, despite the expIratIOn of the tIme, or the arbItrator or arbItration board IS satIsfied that there are reasonable grounds for the extensIOn and that the OpposIte party will not be substantIally be prejudIced by the extensIon. ThIS prOVIsIOn has been mterpreted by the often quoted statement m the Becker Milk Company case, supra, at page 221 where arbItrator Kevm Burkett wrote The term "reasonable grounds for the extensIOn" IS not synonymous WIth the reasonableness of the excuse advanced by the offendmg party Havmg regard to the purpose of the section the term carnes a broader sIgruficatIon which reqUIres the arbItrator to weIgh a number of factors, mcludmg but not necessanly restncted to those whIch have been set out above - 11 - . The factors mentIOned by arbItrator Burkett were 1 The reason for the delay gIven by the offendmg party 2 The length of the delay 3 The nature of the gnevance ThIS Important deCISIon has been applIed m most of the cases CIted by both partIes Further, It was amplIfied m the Greater Nzagara General Ho~pztal case, supra where arbItrator Scruff IdentIfied SIX factors that should be consIdered m cases such as thIS 1 The nature of the gnevance 2 Whether the delay occurred m InItIally launchmg the gnevance or at some later stage 3 Whether the gnevor was responsible for the delay 4 The reasons for the delay 5 The length of the delay 6 Whether the employer could reasonably have assumed the gnevance had been abandoned Takmg these factors mto consIderatIOn, It should be stressed at the outset that thIS IS a dIscharge gnevance The gnevor has approxImately SIX years' semorIty plus two addItIOnal years' servlce as a part-tIme employee A discharge from hIS employment wIll have very SIgruficant consequences upon hIm In thIS very dIfncult and tight Job market. However, It must be noted that the delay In launchmg thIS gnevance occurred nght at the mItIa1 stage Because of thIS, the Employer had absolutely no Idea that the gnevor mtended to challenge the terrmnatlOn. Indeed, the Employer was led to i ., .. -J' - 12 - .if t belIeve that the gnevor had no IntentIOn whatsoever of challengmg the gnevance because there was no response to the NOID and the tIme lImIts In the collectIve agreement had passed. ThIs put the Employer at a sIgnIficant dIsadvantage because It was not put on notIce of the fact that It must prepare a case for potential arbItratIOn, gather the eVIdence that IS necessary and arm Itself agamst the challenge of the Umon. ConsIderatIOn should also be gIven to whether the gnevor was responsible for the delay Taken at Its best, the gnevor should be vIewed as a layman who receIved mappropnate and maccurate adVIce from both hIS UnIon and two law firms However, the UnIon, as a party to the collectIve agreement, must bear some responsibIlIty for the delay If the gnevor's eVIdence IS accepted. If mdeed he dId receIve adVIse from the UnIon office that It could not or would not process hIs gnevance when he first asked that It be launched, the UnIon, as a party to thIS collectlve agreement, bears a sIgnIficant share of the responsibIlIty for the delay When lookmg at the reasons for the delay, we are taken back to the eVIdence of the gnevor's explanatIon that he was awaItIng the outcome of the cnmmal proceedmgs While thIs adVIce was wrong, It IS not umeasonable for a layman to have accepted thIS adVIce There IS no suggestlon that there IS any other reason for the delay The length of the delay IS a very sIgnIficant factor m thIS case In none of the cases cIted by the UnIon was there a delay of over 16 months The cases dealmg WIth delay often talk about the Importance of havmg dIscharge cases heard on theIr ments despIte delays of a matter of months In the case at hand, we have a delay of well over one year ThIS very lengthy delay IS the very type of thIng that labour arbItratIOn and the gnevance process were desIgned to aVOId . - 13 - ; Finally, the last factor to consIder IS whether the Employer could reasonably have assumed that the gnevance had been abandoned. As mentIOned above, the eVIdence m tills case IS clear that the Employer had no reason to suspect that a gnevance would ever be launched Therefore, It had a reasonable belIef that the termmatIon would never be challenged. Tills IS a very hard case to decIde There IS a tendency for arbItrators to allow dIscharge gnevances to proceed on theIr ments when there IS no prejudIce suffered by the employer In thIs case, the potentIal prejudIce because of the concern about lost documents has been averted because of the Umon's stIpulatIOn that It would not challenge the Employer's use of photocopIes In order to prove Its case Further any potentIal lIabilIty that would have been affected by the delay In the filIng of the gnevance could easIly have been dealt WIth by way of an award of compensatIon runmng only from the date of the gnevance Therefore, It IS temptIng to allow the gnevance to proceed on ItS ments However, I have concluded that thIS IS not an appropnate case to exerCIse a dIscretIOn to relIeve agamst the tIme lmuts Havmg weIghed all the factors enumerated above and taken mto conSIderatIon the fact that the gnevor IS a part-tIme employee WIth relatIvely short term semonty, It would be contrary to the pnnclples of labour relatIOns to allow tills case to proceed gIven that the gnevance was launched 16-1/2 months after the gnevor receIved hlS notlce oftermmatIOn. The awards relIed upon by the Umon are of aSSIstance m terms of the general pnncIples that they set out. However, they mvolved delays WIth slgmficant shorter pen ods than the delay In tills case There has been no case CIted to me where a delay of tills length and WIth SImIlar language m the collectlve agreement was allowed to proceed through to arbItratIOn The dIscretIOn avaIlable under the Labour Relations Act gIves the arbItrator eqUItable junsdIctIOn But thIS junsdIctIon IS - 14 - to be exercIsed only where the cntena set out m the sectIon have been satIsfied In the case at hand I have taken mto consIderatIOn all the factors lIsted above and gIven specIal regard to the length of the gnevor's servIce, the length of the delay, and the only explanatIOn bemg that he receIved Improper advIce DespIte the able and persuasIve argument advanced by counsel for the Umon, It must be concluded that there are not reasonable grounds for extendmg the tIme lImIts for the filmg of thIS gnevance I recogruze that thIs result IS unfortunate for the gnevor as an IndIvIdual However, thIS award IS made based on the pnncIples of labour relatIons concepts and the Importance of the tImely admmIstratIon of the collectIve agreement pU-- DATED at Toronto, Ontano, thIS jrl{ day of June, 1998 Paula Knopf - Vice-ChaIrpers07