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HomeMy WebLinkAbout2001-0626.Cherry.03-01-25 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 0626/01 UNION# 01B216 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Cherry ) Grievor - and - The Crown In RIght of Ontano (Mimstry of FInance) Employer BEFORE Owen V Gray Vice-Chair FOR THE UNION Mark Barclay Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER Fateh SalIm Counsel Management Board Secretanat HEARING January 16 2003 2 DECISION [1] ThIs gnevance alleges that the employer's cancellatIOn of a Job competItIOn m December 1999 was Improper The gnevance was filed m wntmg on February 28, 2000 The employer's second stage answer was gIven to the gnevor by letter dated May 26, 2000 OPSEU dId not refer thIS gnevance to arbItratIOn untIl August 2001 Several other sImIlar gnevances ansmg out of the same CIrcumstances had m the meantIme been heard by the GSB and allowed. [2] The employer obJects that thIS gnevance IS untImely m two respects It says that the tIme for mItIatmg the gnevance process began to run when the gnevor was advIsed of the cancellatIOn of the competItIOn m December 1999, and that the gnevor dId not do so m the manner and wIthm the tIme prescribed by ArtIcle 22 2 1 The employer also says that the gnevance was not referred to arbItratIOn wIthm the tIme prescribed by ArtIcle 22 4 The partIes agreed that I should deal first wIth the obJectIOn to the tImelmess of the referral to arbItratIOn. [3] I upheld that obJectIOn and dIsmIssed thIS gnevance m an oral decIsIOn at hearmg ThIs confirms that decIsIOn and the reasons for It. [4] The gnevor works m the RegIOnal Tax Office of the MmIstry of Fmance m London, OntarIO At all matenal tImes hIS permanent posItIOn was CorporatIOns Tax AudItor at the TA4 level. On January 9, 1999, the MmIstry posted 17 corporate tax audItor posItIOns at the more semor F05 level, of whIch 4 were to be m the London area, 7 m the North York office, one m MIssIssauga and 7 m Oshawa. The gnevor applIed. The MmIstry delayed and subsequently cancelled the competItIOn. By letter dated December 21, 1999, all applIcants were advIsed of the cancellatIOn. That letter stated that the MmIstry antIcIpated postmg Semor CorporatIOn Tax AudItor posItIOns at the TA5 level m the "near future" [5] On or about February 22, 2000, the MmIstry posted a competItIOn for Semor Tax AudItor posItIOns 9 posItIOns m North York, 7 m London and KItchener combmed, 4 m Ottawa/Carlton and 2 bIlmgual posItIOns The gnevor dId not apply for the newly posted 3 posItIOns On February 28, 2000 he filed thIS gnevance m wntmg, allegmg that the cancellatIOn of the ongmal competItIOn was Improper Other apphcants m the ongmal competItIOn from varIOUS MmIstry offices filed sImIlar gnevances [6] By letter dated May 26, 2000, the MmIstry's stage 2 desIgnee wrote to the gnevor as follows I am wntmg m response to your gnevance allegmg that the employer has vIOlated ArtIcle 6 of the collectIve agreement by cancellmg [SIc] the competItIon for the Semor CorporatIOn Tax Auchtor competItIon number FIN 825-98(London) and FIN 828-98(Oshawa) I have concluded that the decIsIOn to cancel the competItIOn IS a management nght and that there has been no vIOlatIOn of the collectIve agreement. If you chsagree wIth my decIsIOn. you may apply to the Gnevance Settlement Board wIthm fifteen days of receIpt of thIS letter for a hearmg of your gnevance [7] The gnevor then prepared a letter dated June 5, 2000 addressed to the Gnevance Settlement Board, askmg for a hearmg of hIS gnevance He sent that letter to the MmIstry's head office m Oshawa, apparently m the expectatIOn that they would forward It on to the GSB By letter dated June 19, 2000, a Human Resources Consultant at the MmIstry's head office wrote to the gnevor as follows I am m receIpt of your letter dated June 5 2000 concermng your gnevance dated February 28 2000 Please be adVIsed that m accordance wIth ArtIcle 22.4 of the OPSEU CollectIve Agreement you must apply through the umon, to the Gnevance Settlement Board for a hearmg If you are not satIsfied wIth the decIsIOn at Stage two of the gnevance procedure I trust the above mformatIOn WIll assIst you m processmg your gnevances appropnately [8] The umon referred certam of the gnevances ansmg out of the cancellatIOn of the ongmal competItIOn to the GSB for arbItratIOn. The GSB set an mItIal hearmg date of December 11, 2000 On November 6, 2000, m an attempt to confirm whIch gnevances were proceedmg to arbItratIOn, Helen Ecker of the MmIstry of Fmance spoke wIth a representatIve of the umon. The employer says, and the umon agrees, that the umon's representatIve then confirmed that It had no record of Mr Cherry's gnevance havmg been referred to arbItratIOn. The recollectIOn of that umon representatIve IS as follows On October 12 2000 I receIVed a call from Wayne Cherry askmg about the progress of hIS gnevance I was unable to find a gnevance III hIS name and he thought It was part of a group gnevance and he would call me back to prOVIde the OPSEU number wIthm the next week. 4 On November G 2000 m a telephone conversatIOn wIth Lucy SIraco counsel for the employer concermng a group gnevance of two mchvIduals gnevmg the cancellatIOn of a Job competItIOn. she suggested that she thought there were more gnevances concermng the same cancellatIOn and expressed the Idea that perhaps we should hear them together On the same day m a telephone conversatIOn wIth Helen Ecker of the Mimstry of Fmance she saId that there had been at least two others who at the earher levels had gneved the cancellatIon of the competItIon and one of them was named Wayne Cherry At the tIme I chd not remember at all the call from Mr Cherry the month before I made a thorough search to see whether I had a gnevance from anyone named Wayne Cherry and there was no gnevance m the office from Wayne Cherry Ms Ecker and I agreed that at that tIme the only gnevances on the matter properly before the Gnevance Settlement Board were the gnevances of Chen and GUIllermo Over the next several days Lucy SIraco and I confirmed that there was actually another group of twelve gnevors gnevmg the cancellatIOn of the Job competItIOn and properly filed to the Board. We ultImately agreed that the gnevances should be consohdated. and confirmed that there were these two groups of gnevances properly before the GSB and no others In due course the matter was set for arbItratIon wIth dates m November and December of 2000 On February 9 2001 Wayne Cherry phoned agam and provIded some mformatIOn by FA_eX concernmg the gnevance he was concerned about. At that tIme from the mformatIOn he sent I was able to estabhsh that he had, m fact filed a gnevance concermng the cancellatIOn of a Job competItIOn for the same posItIon and mvolvmg the same facts that were the subject of the two group gnevances gomg forward. but that rather than filmg to arbItratIOn through the umon. he had personally maIled a letter to the employer statmg that he wanted to go on to arbItratIOn. I adVIsed Mr Cherry at that tIme that there was no pomt m attemptmg to get hIs gnevance mcluded m the hearmg because tIme hmIts were long smce passed and the umon and employer had agreed on the gnevances properly before the Board. I told hIm that I would try to argue the matter as broadly as possIble and that hIs only hope was that If we receIVed a favourable decIsIOn It mIght be broad enough to prOVIde some benefit to hIm as well. Mr Cherry saId that after the employer had returned hIS letter explammg that he head to file through the umon he gave the gnevance to hIs umon steward who forwarded It to OPSEU head office I have been unable to find any eVIdence at all that the gnevance was ever receIVed at OPSEU In the summer of 2001 a decIsIOn on the two group gnevances was released. and the decIsIOn was favourable to the umon but narrowly defined wIth respect to the cancellatIOn of posItIons advertIsed for the North York RegIOnal Office ~ThIle I was on vacatIOn that summer Mr Cherry agam contacted OPSEU and was apparently adVIsed to file the gnevance on to arbItratIOn at that tIme It IS that filmg whIch IS the subject of the gnevance now before the Board. [9] A hearmg on other gnevances ansIng out of the cancellatIon of the ongmal competItIOn proceeded before VIce Chmr Abramsky on December 11, 2000 and subsequent dates Before that hearmg began, thIrd party notIces were sent to the successful candIdates m the February 2000 competItIOn. I am told that thIS was done pnor to Ms Ecker's November 6, 2000 conversatIOn WIth the umon's representatIve One of the employees to 5 whom a thIrd party notIce was sent was Don Ferguson, an employee m the MmIstry's London office Mr Ferguson contacted Ms Ecker shortly before the first hearmg date, askmg whether any gnevances from the London office had been referred to arbItratIOn. Relymg on her earlIer conversatIOn wIth the umon's representatIve, Ms Ecker told hIm that there were no gnevances relatmg to the London office [10] Vice ChaIr Abramsky Issued her decIsIOn on July 26, 2001 (Leung et a1., GUillermo/Chen, GSB#0319/00, 0388/00) On August 16, 2001, OPSEU wrote to the employer advIsmg that thIS gnevance of Wayne Cherry dated February 28, 2001 was bemg referred to arbItratIOn. It IS common ground that OPSEU dId not refer the gnevance to the GSB pnor to that. The MmIstry promptly advIsed the umon that It was obJectmg to the referral on the basIs that the gnevance had not been referred to arbItratIOn wIthm the mandatory tIme lImIts set out m ArtIcle 22 4 of the CollectIve Agreement. [11] I would apparently be the eVIdence of Mr Cherry that he wrote hIS letter of June 5, 2000 m relIance on the closmg paragraph of the employer's letter of May 26, 2000, that he sent that letter to the MmIstry's office on the advIce of hIS umon steward, and that on receIpt of the employer's response of June 19,2000 he spoke agam to hIS umon steward who, he belIeved, then dId whatever was necessary to cause hIS gnevance to be referred to arbItratIOn at the GSB It would further be hIS eVIdence that at some subsequent tIme he receIved a telephone message from someone at the umon advIsmg that he was part of "the group gnevance" At the hearmg of thIS matter I explamed to the gnevor that It would be unnecessary to hear hIm gIve that eVIdence formally, because even If I accepted all of It as true I would have to uphold the employer's obJectIOn, for reasons explamed then and reIterated here [12] The pertment prOVISIOns of the collectIve agreement are these ARTICLE 22 GRIEVANCE PROCEDURE STAGE ONE 22.2.1 It IS the mutual deSIre of the partIes that complamts of employees be adjusted as qUIckly as possIble and It IS understood that If an employee has a complamt the employee shall meet where practIcal, and dISCUSS It WIth the employee's Immechate supervIsor wIthm thIrty (30) days after the CIrcumstances glVmg rIse to the complamt have occurred or have come or ought reasonably to have come to the 6 attentIOn of the employee m order to gIVe the Immechate supervIsor an opportumty of adJustmg the complamt. 22.2.2 If any complamt or chfference IS not satIsfactonly settled by the supervIsor wIthm seven (7) days of the chscusswn and/or meetmg It may be processed wIthm an adchtwnal ten (10) days m the followmg manner STAGE TWO 22 '3 1 If the complamt or chfference IS not resolved under Stage One the employee may file a gnevance m wntmg through the Umon wIth the semor human resources representatIve m the mImstry or hIs or her desIgnee 22. '3 2 The semor human resources representatIve or hIs or her desIgnee shall hold a meetmg wIth the employee wIthm fifteen (15) days of the receIpt of the gnevance and shall gIVe the gnevor hIs or her decIsIOn m wntmg wIthm seven (7) days of the meetmg wIth a copy to the Umon steward. 22.4 If the gnevor IS not satIsfied wIth the decIsIOn of the semor human resources representatIve or hIs or her desIgnee or If he or she does not receIVe the decIsIOn wIthm the specIfied tIme the gnevor may apply through the U mon to the Gnevance Settlement Board (GSB) for a hearmg of the gnevance wIthm fifteen (15) days of the date he or she receIVed the decIsIOn or wIthm fifteen (15) days of the specIfied tIme hmIt for reCeIVIng the decIsIOn. GENERAL 22 14.1 Where a gnevance IS not processed wIthm the tIme allowed or has not been processed by the employee or the Umon wIthm the tIme prescnbed It shall be deemed to have been wIthdrawn. 22.14.6 The GSB shall have no Junschctwn to alter change amend or enlarge any prOVISIOn of the CollectIve Agreements [13] A gnevance that has been wIthdrawn IS marbItrable The umon and employer have agreed m ArtIcle 22 14 1 of the collectIve agreement that a gnevance that has not been processed by the employee or the umon wIthm the tIme prescribed IS deemed to have been wIthdrawn. The umon does not challenge the employer's posItIOn that It gave a stage two deCISIOn as ArtIcle 22 2 2 reqUIres Thereafter, thIS gnevance was not referred to arbItratIOn by the umon for nearly 15 months Whether that IS because the gnevor dId not ask that It do so or because the umon dId not follow through when asked, the result on thIS Issue and m thIS forum IS the same accordmg to the collectIve agreement, the gnevance IS marbItrable [14] At the hearmg It troubled the gnevor that the 15 day penod followmg hIS receIpt of the stage two answer expIred whIle he was attemptmg to refer the gnevance to the GSB hImself, as that answer told hIm he had to do Assummg, wIthout decIdmg, that the employer mduced the delay that occurred between the gnevor's receIpt of ItS second stage 7 answer and hIS receIpt of ItS letter of June 19, 2000 correctly tellmg hIm he had to act through the umon, and assummg lIkewIse that the employer would be precluded from relymg on any delay that It had mduced, the fact remams that the subsequent delay of nearly 14 months cannot be attnbuted to what the employer had saId about referral to arbItratIOn m ItS second stage answer At very least, the clock started when the gnevor receIved the letter of June 19, 2000, followmg whIch, accordmg to hIm, he asked the umon refer hIS gnevance to the GSB [15] It also troubled the gnevor that, whatever the state of the umon's records, the employer knew that he had a gnevance The Issue for the employer, however, was not whether he had filed a gnevance After the employer had answered the gnevance at stage two, the pertment Issue was whether the umon had processed or was processmg the gnevance to arbItratIOn. The umon told the employer that It had not and was not There IS no suggestIOn that the umon's posItIOn m that regard was mduced by any mIsrepresentatIOn on the employer's part [16] The collectIve agreement gIves the GSB no power to extend the collectIve agreement's tIme lImIt for referrmg thIS gnevance to arbItratIOn. The umon does not suggest that the Crown Employees Collective Bargallllllg Act, or any of the prOVISIOns of the Labour RelatiOns Act that are mcorporated therem by reference, gIves the GSB the power to extend that tIme lImIt Indeed, the umon was unable to IdentIfy any basIs on whIch I could conclude, despIte the delay m referrmg It to arbItratIOn, that thIS gnevance IS arbItrable [17] For the foregomg reasons, I upheld the employer's obJectIOn to the tImelmess of the referral of thIS gnevance to arbItratIOn and dIsmIssed the gnevance orally at hearmg Dated at Toronto thIS 24th day of January 2003