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HomeMy WebLinkAbout1998-1811.Szabo.01-02-19 Decision o NTARI 0 EMPLOYES DE LA COL'RONNE CROWN EAIPLOYEES DE L 'ONTARIO -- GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB# 1811/98 OPSEU#99B236 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees Umon (Szabo) Gnevor - and - The Crown m RIght of Ontano (Ontano Realty CorporatIOn) Employer BEFORE Bram HerlIch Vice-ChaIr FOR THE Don Martm GRIEVOR Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE Fateh SalIm, Counsel EMPLOYER Legal ServIces Branch Management Board Secretanat HEARING June 23 2000 Januan 29 2001 DECISION On December 4, 1998 the gnevor filed a gnevance allegmg that he had been "unJustly and Improperly dIsmIssed" It IS common ground that the events gIVIng nse to that claim were apparent some three years earlIer m December of 1995 when the gnevor receIved formal notIce from the employer that hIS pOSItIOn was to be surplused In accordance With ArtIcle 24 of the collectIve agreement. It IS that process whIch IS now pomted to as an unJust and Improper dIsmIssal. The employer asserts that the gnevance IS untImely and ought to be dIsmIssed on that baSIS. WhIle not senously challengmg the untImely nature of the gpevance, the unIon asks that I exerCIse the dIscretIOn both partIes agree I have to extend the tIme lImIts m thIS case The employer demes that there are any proper grounds for the exerCIse of that dIscretIOn. ThIS deCISIOn IS restncted to the tImelmess Issue and the questIOn of whether I ought to exerCIse my dIscretIOn m that regard. The partIes were able, for the purposes of thIS deCISIon, to agree upon the baSIC facts as follows 1. The Gnevor, John Szabo, commenced employment as an Electncal Inspector With the Mimstry of Government ServIces on October 5, 1987 2. By Order m CouncIl 356/93, the Mimstry of Government ServIces functIOns were transferred to Management Board Secretanat ("MBS") 3 On or about July 15, 1993, the Gnevor filed two gnevances The 1993 gnevances are not related to the present gnevance 4. In or about 1994, MBS staff proVldmg servIces to the Ontano Realty CorporatIOn were transferred to the Ontano Realty CorporatIOn ("ORC") The ORC IS a corporatIOn under the CapItal Investment Plan Act, 1999, c 23, as amended, carrymg out the busmess of provIdmg, to the Government of Ontano and to others, servIces and financmg related to real property and Improvements to real property 2 5 The Gnevor was amongst the staff transferred In 1994 and contmued workmg as a Bmldmg Contracts AdmmIstrator With the ORC 6. At all matenal tImes hereIn the Gnevor was a member of the Ontano PublIc ServIce Employees Umon ("OPSEU") 7 On December 29, 1995 the Gnevor receIved SIX (6) months notIce that hIS posItIOn With the ORC was to be surplused In accordance With ArtIcle 24 of the applIcable CollectIve Agreement. Under ArtIcle 24, a pOSItIOn could be surplused where there IS a shortage of funds or work. 8. On or about January 10, 1996 the Gnevor accepted hIS surplus notIce and severance payments. The Gnevor worked through hIS SIX (6) month notIce penod. For the SIX (6) month notIce penod, the Gnevor, at hIS own request, was placed With a pnvate sector firm m order to aSSIst hIm m traInmg for future Job prospects. The ORC prOVIded the Gnevor With full salary and benefits dunng hIS placement. 9 On January 22, 1996, Mr Szabo placed the Crown on notIce regardmg a statement of claIm [regardmg what was described as hIS havmg been "Improperly termInated by the Ontano ProvmcIaI Government"] 10 On or about June 20, 1997 the Gnevor commenced a CIvIl actIOn agamst the employer m the Ontano Court (General DIVISIon) 11 On or about May II, 1998 the Employer brought a motIOn to have the Gnevor s actIOn dIsmIssed. The Court dIsmIssed the Gnevor s actIOn on the grounds that It had no JurIsdIctIOn over the subJect matter of the actIOn. 12. On or about June 30, 1998 the Gnevor appealed thIS deCISIon to the Ontano Court of Appeal 13 On or about December 4, 1998, the Gnevor filed hIS gnevance 14 On or about October 25, 1999 the Court of Appeal dIsmIssed the Gnevor s appeal At the ImtIaI day of heanng (June 23, 2000), the partIes consented to adJourn thIS matter largely as a result of late notIce to the employer that the unIon mtended to call eVIdence It asserted would establIsh that, dunng the CIvIl lItIgatIOn process, the employer had made representatIOns mdIcatmg that It would not pursue any tImelmess obJ ectIOns 3 When the matter reconvened on January 29, 2001, we heard the eVIdence of Mr Robert MacRae, who had been the gnevor s counsel throughout the cIvIl htIgatIOn proceedmgs. At the commencement of that second day of heanng, Mr Martm had mdIcated on behalf of the unIon (and perhaps at vanance With the preVIOUS advIce), that Mr MacRae s testImony would fall short of estabhshmg any exphcIt Waiver of tIme hmIts by the employer We were told, however, that It would support the conclusIOn that there had been at least an ImphcIt agreement or Waiver such that the employer ought not to be permItted to rely on ItS tImelmess ObjectIOn or, put more precIsely, such that I ought to be mfluenced to exerCIse my dIscretIOn m tm gnevor s favour As Will be described shortly, Mr MacRae s eVIdence faIled to hve up to even that dImInIshed advance bIllmg. As a consequence and although the employer had arranged for the presence and possible testImony of counsel who had represented It m the cIvIl htIgatIOn, the employer opted to call no eVIdence The agreed facts set out earher reqUIre some supplementatIOn m VIew of the eVIdence from Mr MacRae ThIs was not the first tIme Mr MacRae had represented the gnevor Few details were presented or are necessary for our current purposes It would appear, however, that sometIme pnor to hIS alleged dIsmIssal the gnevor was a co- defendant (along With hIS employer) m a proceedmg commenced by a person who had dealmgs With the gnevor and hIS employer That matter was settled. Dunng the course of or as part of the settlement of that matter, It IS alleged that certam promIses were made to the gnevor by the employer His subsequent termmatIOn, It IS asserted, was mconsIstent With those promIses Consequently, when the gnevor receIved hIS surplus notIce, he sought Mr MacRae s advIce Although we heard no testImony from the gnevor, the eVIdence and agreed facts before me suggest that the earhest date upon whIch he sought any counsel from the unIon regardmg hIS collectIve agreement nghts was m June of 1998 some 212 years after receIvmg hIS surplus notIce In any event, the gnevor and hIS counsel formed the shared VIew that smce the gnevor s nghts were founded m a settlement and/or promIse secured m the context of the earher cIvIl actIOn, those nghts could not be 4 enforced WIthm the collectIve bargammg regIme or under the collectIve agreement. The proper manner of enforcmg those nghts was thought to be by way of a cIvIl actIOn. That actIOn was commenced m June of 1997 (notIce of such mtentIOn havmg been provIded to the Crown m January of 1996) From the outset m respondmg to the Statement of Claim (and throughout the htIgatIOn process), the employer took the positIOn that the court lacked JunsdIctIOn to hear the matter because the gnevor s terms and condItIOns of employment were governed by the terms of the collectIve agreement and that the proper forum for challengmg the gnevor s termmatIOn was through the grIevance and arbItratIOn procedure, a process that the gnevor had faIled to engage Even m the face of that formal posItIOn clearly and exphcItly artIculated m the employer s Statement of Defence m July of 1997, the present gnevance was not filed untIl December of the folloWing year As set out earher, the employer s motIOn to dIsmIss the case was granted m May of 1998 In ItS endorsement the Court concluded that It was Without JunsdIctIOn to hear the matter because the dIspute fell squarely to the Gnevance Settlement Board. The Court took the OppOrtunIty to draw comfort from the fact that the effect, If any, of the "collateral" agreement rehed upon by the gnevor was an Issue thIS Board could determme even, potentIally, by consIdenng common hw doctnnes such as detnmental rehance Very shortly after the decIsIon of the Court Issued, Mr MacRae suggested that the gnevor Immediately file a gnevance Some seven months later that was done Some three weeks after the decIsIon of the Ontano Court (General DIvIsIon) was Issued, the gnevor filed a NotIce of Appeal of that decIsIon m the Court of Appeal. That appeal was dIsmIssed m October of 1999 5 Although Mr MacRae may have been called for that specIfic purpose, there IS very httle m hIS eVIdence, whIch mchnes me to exerCIse my dIscretIOn to extend tIme hmIts m thIS case Certamly there IS nothmg m that eVIdence to support even the inference that there was an implicit agreement or Waiver on the part of the employer that It would not raise any tImelmess Issues m the present proceedIngs For as Mr MacRae candIdly acknowledged (despIte a suggestIOn to the contrary m hIS August 13, 1998 correspondence to the unIOn Staff RepresentatIve), the Issue of tIme hmIts for a gnevance was never dIscussed With any employer representatIve Indeed, he acknowledged that the Issue of tIme hmIts (for a gnevance) never even surfaced m any of hIS dIScussIons With the gnevor untIl after the Judgement of the Court m May of 1998 Even then It appears that the Issue of tIme hmIts was first raised by the unIon sometIme after that date, when the gnevor first approached It for assIstance There IS perhaps an eqUItable appeal to be made for the exerCIse of dIscretIOn to extend tIme hmIts m thIS case It can be described fairly sImply The employer has mamtamed throughout that thIS IS the proper forum to determme the gnevor s claim. Havmg prevailed m that VIew, It should not now be open to the employer to aVOId a determmatIOn of the ments of that claim by resort to a "techmcal" obJectIOn such as tImelmess. A vanatIOn on that theme mfuses the concerns expressed and, to some extent, acknowledged, by both levels of the courts Indeed, It was concern about thIS dIfferent potential "meqUIty" whIch featured much more prommently m Mr MacRae s eVIdence The gnevor Wishes to rely on a "collateral" agreement forged, or so It was wrongly thought, outsIde the reach of the collectIve agreement and the gnevance procedure It would be meqUItable for the employer to prevail m ItS VIew that the matter belongs before thIS Board and to then argue that thIS Board has no JurIsdIctIOn to consIder the terms and CIrcumstances of that "collateral" agreement. That VIew was echoed by the endorsement of the Court of Appeal, whIch noted and endorsed the employer s acknowledgement that "there IS no basIs for an arbItrator to refuse to hear eVIdence about the alleged representatIOn/collateral agreement and to fashIOn a remedy accordmgly If appropnate" 6 But even acceptmg the legItImacy of that consIderatIOn, It does not amount to an unfettered hcense to, several years later, file the gnevance, whIch ought to have been filed at the outset. The concerns about the Impact of legal chOIce of forum IS a separate matter from the general and specIfic reqUIrements to file gnevances m a tImely fashIOn. Indeed, had such a gnevance been filed, there IS every hkehhood that the partIes mIght have been able to agree on the forum m whIch to first determme the JunsdIctIOnal Issue perhaps even Without preJudIce to the nght to subsequently proceed m the other forum If necessary Why that was not done m thIS case remams somethmg of a mystery And, perhaps more Importantly, why no gnevance was filed early on durmg the relevant sequence of events IS equally mystenous The gnevor, who dId not testIfy, has offered no dIrect explanatIOn for that oversIght or for hIS apparent utter failure to even raise or dISCUSS the matter With hIS bargammg agent untIl sometIme m or after May of 1998 That failure IS all the more emgmatIc when one consIders the gnevor s preVIOUS famIhanty With the gnevance procedure, the employer s mdIcatIOn from the very outset that It had acted pursuant to the terms of the collectIve agreement and (once the cIvIl proceedmg had been commenced) ItS subsequent Immediate and contmumg assertIOn that the matter ought to have been the subJect of a gnevance rather than a cIvIl proceedmg. The apphcable collectIve agreement contams the folloWing provIsIon. 2721 An employee who beheves he has a complamt or a dIfference shall first dISCUSS the complamt or dIfference With hIS supervIsor WIthm twenty (20) days of first becommg aware of the complamt or dIfference I note as well that (whIle the employer dIsputes that thIS IS a true dIsmIssal gnevance - the gnevor haVIng been IdentIfied as surplus) ArtIcle 2782 provIdes Any employee who IS dIsmIssed shall be entItled to file a gnevance at the second stage of the gnevance procedure provIded that he does so WIthm twenty (20) days of the dIsmIssal. 7 The unIOn suggested that smce ArtIcle 27 2 1 mcludes a subJectIve element tied to the gnevor s knowledge, that the gnevor may not have "been aware" of the complamt or dIfference until, at the earhest, the rulmg of the Ontano Court (General DIvIsIOn) That suggestIOn can be qUIckly dIsposed of. WhIle there IS undoubtedly a subJectIve component to the language under consIderatIOn, It IS of no assIstance to the gnevor m thIS case A gnevor who IS legItImately unaware of the facts gIvmg nse to an alleged vIOlatIOn of the collectIve agreement may well have twenty days from first becommg aware of those facts to mvoke the gnevance procedure That IS hardly the case here As suggested m Tltomey, 1956/97 (Brown), It IS knowledge about the facts not knowledge of relevant legal theones, whIch tnggers the collectIve agreement tIme hmIt. There IS nothmg before me to suggest that the gnevor was not, from the outset, m posseSSIOn of all of the relevant facts asserted to gIve nse to hIS claim of Improper dIsmIssal. Thus, It IS clear that the gnevance was out of tIme and that the only remammg Issue pertams to the possible exerCIse of my dIscretIOn. I am asked to exerCIse the dIscretIOn conferred upon me by sectIOn 48( 16) of the Labour Relations Act 1995 whIch permIts me to extend the tIme If I am satIsfied that "there are reasonable grounds for the extensIOn and that the OpposIte party Will not be substantially preJudIced by the extensIOn" Numerous cases have consIdered the apphcatIOn of thIS provIsIOn mcludmg the often cIted decIsIons m Becker Milk Company and Teamsters Union, Local 647 (1978), 19 L.AC (2d) 217 (Burkett) and Greater Niagara General Hospital and ON.A. (1981), 1 L.AC (3d) 1 (SchIff) The factors that those (and many subsequent) arbItrators have consIdered m determmmg whether or not to exerCIse theIr dIscretIOn have been IdentIfied by arbItrator Burkett as follows 1 The reason for the delay gIven by the offendIng party 8 2. The length of the delay 3 The nature of the gnevance and by arbItrator SchIff 1 The nature of the gnevance. 2. Whether the delay occurred m mItIally 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. There IS no doubt that the gnevance m thIS matter IS one of sIgmficant consequence - the gnevor claims he has been dIscharged and seeks remstatement and compensatIOn. I note agam, however, that while It does purport to be a dIsmIssal gnevance, the employer asserts that the matter mvolved the apphcatIOn of the Job security prOVISIOns of the collectIve agreement and was not a dIscIplmary matter Thus whIle the consequences of the actIOn challenged by the gnevance are undoubtedly severe, thIS may not be a typIcal dIscharge case The delay bemg pomted to IS the delay at the very outset of the gnevance procedure l.e the failure to even file a gnevance The reason and responsibIhty for the delay are hIghly problematIc m thIS case On one level, one mIght conclude that there sImply IS no reason, let alone any good reason, for the delay On the most chantable readIng of the facts, the gnevor may be seen to have followed bad advIce But even that conclusIOn IS less than apparent. For Mr MacRae made It clear that hIS VIew had been that the cIvIl proceedmg was the appropnate route to 9 follow He advIsed the gnevor accordmgly and the actIOn was commenced. Events proved that advIce to have been wrong. But even If there IS some eqUItable basIs to protect the gnevor from hIS rehance on legal advIce, whIch proved to be mIsgUIded, It IS less than clear that provIdes a reason for the gnevance not haVIng been filed. Unhke the case of Wicken, 2216/97 (Knopf), (a case m whIch the Board declmed to exerCIse ItS dIscretIOn to permIt a gnevance filed some 1612 months after tre dIscharge), there was no suggestIOn m the mstant case that Mr Szabo had been specIfically advIsed to not file a gnevance No explanatIOn was provIded as to why the commencement of the CIVIl actIOn precluded the gnevor from filmg a gnevance (or even consultmg With hIS bargammg agent m that regard) And finally, even If one mIght be tempted to somehow otherWIse "forgIve" the delay to the pomt that the court vmdIcated the employer s posItIOn m May of 1998, there IS sImply no explanatIOn before me whatsoever for the subsequent contmumg delay m filmg the gnevance Even after Mr MacRae exphcItly advIsed hIS chent, m wrItmg, to "forthWith (Immediately)" file a gnevance, It took some seven months for that to happen. The length of the delay IS enormous and mIhtates very strongly agamst the exerCIse of any dIscretIOn. The Board m the Wicken case observed that no case With sImIlar collectIve agreement language was cIted whIch had permItted a gnevance to proceed folloWing a delay of 1612 months from the date of termmatIOn. The delay m the present case IS more than double that m Wicken no case was presented to me m whIch tIme hmIts were extended m the face of such a delay Fmally, I consIder the Issue of preJudIce and whether the employer could reasonably have assumed the gnevance had been abandoned. The magmtude of the delay IS so extreme m thIS case that, Without more, I mIght be prepared to conclude that substantial preJudIce would result to the employer If It were now reqUIred to defend the gnevance Indeed, It may well be that the onus of estabhshmg no such preJudIce falls to the party seekmg to have the tIme hmIts extended. However, there are some reasons to conclude, m thIS case, that the resultmg preJudIce mIght not IE as severe as a three year delay mIght otherWise suggest. For despIte the utter mactIvIty msofar as the gnevance 10 procedure was concerned, It was abundantly clear to the employer that the gnevor was challengmg hIS termmatIOn. And whIle there may not have been a complete IdentIty between the terram that would have been covered m the gnevance procedure and that whIch the gnevor Ill-advIsedly sought to traverse m the cIvIl proceedmg, there can be httle doubt that the prmcIpal facts relatmg to the termmatIOn are promment and central m both. Thus, It IS perhaps more dIfficult for thIS employer to assert that It could have assumed the gnevance, or at least the gnevor s challenge to the propnety of hIS termmatIOn, had been abandoned. On the other hand and whIle It may be a factor ultImately of a remedIal nature, I cannot help but comment on the dIfferences m the rehef sought and aVailable m the gnevance as opposed to the cIvIl proceedIng. It IS only With the filmg of the gnevance that a claim for remstatement IS made - years after the Impugned termmatIOn. The claim m the cIvIl proceedmg was (not all surpnsmgly gIven the vanance of aVailable remedIes) restncted to damages. Thus, the employer can legItImately assert that no claim whatsoever for remstatement was made untIl the gnevance was filed years after the fact. There may well be eVIdentIary matters relatmg to the Issue of rem statement whIch were not raised or sought to have been raised m the cIvIl proceedmg. When I consIder all of the factors canvassed, I am forced to conclude that thIS IS not an appropnate case for the exerCIse of my dIscretIOn. The magmtude of the delay and the reasons proffered for It are such that, despIte the Importance of the gnevance and the possible mIxed nature of the resultmg preJudIce, I do not consIder It appropnate to exercIse my dIscretIOn to extend the tIme hmIts. The gnevance IS untImely and IS therefore dIsmIssed. Dated at Toronto thIS 19th day of February 2001 . ~ . I - ~_~~w. - ~ -~, Bram Herhch, Vice-Chairperson 11