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HomeMy WebLinkAboutKilleen 18-04-17IN THE MATTER OF AN ARBITRATION BETWEEN: COMMUNITY LIVING MISSISSAUGA -AND- (the "Employer") ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND LOCAL 251 (the "Union") AND IN THE MATTER OF THE GRIEVANCE OF JAMES KILLEEN CONCERNING A LETTER OF DISCIPLINE ARBITRATOR APPEARANCES FOR THE UNION FOR THE EMPLOYER ROBERT J. HERMAN LESLEY GILCHRIST JAMES KILLEEN DIRK VAN DE KAMER KEITH TANSLEY A HEARING IN THIS MATTER WAS HELD ON MARCH 29, 2018 AWARD 1. The grievor, James Killeen, works for Community Living Mississauga as a Support Worker. He was given a Letter of Discipline for conduct that the Employer characterized as inappropriate, and a grievance was filed in response. The grievance was subsequently referred to arbitration before me by the Union, OPSEU Local 251. At the hearing, the Employer's preliminary objection that the grievance was untimely was addressed, and the instant Award deals only with this objection, 2. The facts were agreed upon or are not in dispute. By letter dated March 7, 2016, the grievor received a Letter of Discipline from the Employer concerning actions of the grievor that the Employer concluded were contrary to the organization's values. The next day, March 8, 2016, the instant grievance was filed. By letter dated March 11, 2016, the Employer denied the grievance. A grievance meeting was held. The Step 11 response from the Employer was received by the Union on April 13, 2016. On April 22, 2016, the Union sent a letter by Canada Post Xpresspost that advised that the grievance was being referred to arbitration. The Union asserts that it made an administrative error in sending the referral by regular Canada Post mail, as it was supposed to have been sent by email, an assertion not disputed by the Employer and which I therefore accept as factually accurate. The Xpresspost letter that referred the grievance to arbitration was not received by the Employer until April 28, 2106. Articles 8 and 10 of the Collective Agreement read: ARTICLE 8- GRIEVANCE PROCEDURE 8.01 It is the mutual desire of the parties to this Agreement that the complaint of any employee shall be resolved as promptly as possible. It is understood that an employee has no grievance until he has first discussed his complaint with his inu-nediate supervisor and afforded him an opportunity to endeavour to settle the complaint. In the event the supervisor with whom the complaint is being discussed requests the presence of an additional managerial person or persons, the employee may, if lie wishes, be accompanied by his Steward. Such additional managerial person(s) and the Union Steward shall act as observers. Failing settlement then: 8.02 Step I: Any complaint or grievance arising under this Agreement relating to the interpretation, application or alleged violation of the Agreement shall be submitted in writing signed by him to the Director of Service within seven (7) working days after the circumstances giving rise to the grievance have occurred or originated. The employee may, if he wishes, be accompanied by his steward, The nature of the grievance, the remedy sought and the sections of the Agreement which are alleged to have been violated shall be set out in the grievance on the prescribed form, Any grievance not submitted within the time limits provided herein shall be deemed to have been settled. The written decision of the Director of Service shall be received within six (6) working days following the day on which the grievance was presented to him, Step II: Within seven (7) working days following the receipt of the decision under Step I, the employee shall submit the written grievance to the Executive Director or his designate. The Executive Director or his designate will meet with the Grievance Committee and review the grievance. The parties shall endeavour to convene a 3 meeting within ten (10) working days of the submission of the grievance to this step. The Executive Director may request the presence of a consultant at this meeting as may the Union. The written decision of the Executive Director will be received within seven (7) working days from the date on which the grievance meeting was convened 8.03 Policy Grievance It is agreed that a grievance arising directly between the Employer and the Union shall be known as a Policy Grievance originated under Step II above within seven (7) working days after the circumstances giving rise to the grievance have occurred or originated, and the time limit set out with respect to that Step shall appropriately apply. However, it is understood that the provisions of this Section may not be used with respect to a complaint or grievance directly affecting an employee or employees and that the regular grievance procedure shall not be by- passed. In the case of an Employer Policy Grievance, the written decision of the Union will be received by the Executive Director or designate within seven (7) working days from the date on which the grievance meeting was convened. In the case of a Union Policy Grievance, the written decision of the Employer will be received by the Local Union President or designate within seven (7) working days from the date on which the grievance meeting was convened. 8.04 All agreements reached under the grievance procedure between the representatives of the Employer and the representatives for the Union, shall be final and binding upon the Employer, the Union and the employees. All time limits referred to in the grievance procedures and the arbitration procedure shall be construed as mandatory and failure to comply with any time limits shall be deemed abandonment of the grievance or denial of the grievance as the case may be. Notwithstanding the foregoing the parties may agree to waive or extend any of the time limits established in this grievance procedure. However, any such agreement shall be in writing and acknowledged by the parties. 8.05 For all purposes of this Agreement the words "reach", "receipt" or "received" shall mean when delivered by hand and signed for, or twenty four (24) hours after being sent by Xpresspost or similar service. 0 8.06 In the event an employee is called to a meeting where there are two management representatives in attendance for the purpose of implementing disciplinary actions including discharge, the employee shall have the right to have his steward present if he so wishes. 8.07 For the purposes of the grievance and arbitration provisions, the words "working days" shall not include Saturdays, Sundays or Paid Holidays under Article 20. ARTICLE 10 —ARBITRATION 10.01 Failing settlement under the foregoing grievance procedure of any grievance between the parties arising from the interpretation, application, or alleged violation of this Agreement, including any question as to whether the grievance is arbitrable, the grievance may be submitted to arbitration as set forth below. For the purpose of submitting a grievance to arbitration as set forth below, the Employer and the Union will accept electronic mail sent to the attention of the Executive Director or designate or to the designated Union staff member as appropriate. If no written request for arbitration is received within seven (7) working days from the date of the receipt of the decision under Step II above, the grievance shall be deemed to have been settled. 10.02 When either parte requests that a grievance be submitted to arbitration as hereinbefore provided, it shall make such request in writing addressed to the other party and at the same time nominate an arbitrator to the Board of Arbitration. Within fifteen (15) working days thereafter, the other party shall nominate an arbitrator and notify the other party. The two arbitrators so appointed shall confer immediately and attempt to select by agreement a chairman for the Board of Arbitration within fifteen (15) working days from the date the other party has nominated its, arbitrator. If they are unable to agree on such a chairman, they should then request the Minister of Labour for the Province of Ontario to appoint a chairman. 10.03 No person may be appointed as an arbitrator who has been involved in any attempt to negotiate or settle the grievance. 5 10.04 The Board of Arbitration shall not have the jurisdiction to amend or add to any of the provisions of this Agreement, or to substitute any new provision in lieu thereof, nor to give any decision inconsistent with the terms and provisions of this Agreement. No matter shall be dealt within arbitration which has not been properly carried through all the previous steps of the grievance procedure unless mutually agreed upon in writing by the parties. 10.05 The written decision of the majority of the Board of Arbitration shall be final and binding upon the Employer, Union and the employees. 10.06 Each of the parties hereto shall bear the expense of the arbitrator appointed by it, and the parties shall jointly bear the fees and expenses of the chairman of the Board of Arbitration. 10.07 The parties may agree to extend or waive any of the time limits prescribed in this Article. However, any such agreement shall be expressed in writing and acknowledged by the parties. 10.08 Sole Arbitrator: Notwithstanding the foregoing provisions of this Article, the Employer and the Union may mutually agree in writing to the appointment of a single arbitrator satisfactory to both parties in which case, such arbitrator shall have the same jurisdiction, power and authority as has been given to the Arbitration Board by the foregoing terms of this Article. (emphasis added) Submissions 4. The Employer notes that the Collective Agreement has separate grievance and arbitration Articles. In Article 10, the Arbitration Article, Article 10.01 states that if no written request for arbitration "is received" within 7 working days from the date of receipt of the Step It decision, the grievance "shall be deemed to have been settled." 6 As the Step II response was received by the Union on April 13, 2016, the Employer asserts that the referral to arbitration must therefore have been received within seven working days of April 13, 2016. Article 8.07 defines "working days" to not include weekends or paid holidays, and the Employer therefore submits that the date by which the referral must have been received was April 22, 2016, the working day that was seven working days after April 13, 2016. With respect to when the referral was "received", the Employee points to Article 8.05, which defines the term "received" to mean when delivered by hand and signed for, or 24 hours after being sent by Xpresspost or similar service. As the letter of referral was mailed by Xpresspost, and was actually received on April 28, 2016, the Employer asserts that pursuant to Article 8.05 the letter of referral is decmed to have been received on April 13, 2016; that is, 24 hours after it was mailed. Since the referral to arbitration was deemed received on April 23, 2016, but was required by At icle 10.01 to have been received on April 22, 2016, asserts the Employer, it was "received" after the mandatory time limit for receipt set out in Article 10.01. In the result, submits the Employer, the referral to arbitration was untimely. It further asserts that an arbitrator has no jurisdiction to extend time limits for the referral of a grievance to arbitration; see, for example, S.E.L U. Local 204 and Leisuretivorld 1lirtrrsing Haines Ltd. 1997 CarswellOnt 830, [1997] 0.3. No. 1469, 70 A.C.W.S. (3d) 281, 99 O.A.C. 196 (Div. Ct.); 1997 CarswellOnt 4746, [1997] O.J. No. 4815, 75 A.C.W.S. (3d) 854 (C.A.). 7 5. The Union does not dispute that Article 10.01 requires that the referral to arbitration be "received" by the Employer within 7 working days of receipt of the Step II response, nor that the date by which the referral to arbitration was therefore to be "received" or deemed received by the Employer was April 22, 2016. It notes, however, that the referral to arbitration was mailed on the date by which it was required to be "received" by the Employer under Article 10.01, and that the delay in receipt by the Employer was minimal. It submits further that there is no prejudice to the Employer should the matter be allowed to proceed, as the Employer would always have believed that the grievance would be proceeding to arbitration, and would not have anticipated in the circumstances that the grievance had been abandoned, and that this is not a case of mounting liability, as the only issue is the validity of a letter of discipline, so that the fact that receipt is deemed to have occurred a single day late is not material. The Union notes that the grievor was not in any way responsible for the late filing or forwarding of the referral to arbitration, as it was the Union that mistakenly sent the referral by regular mail rather than by email. It would be unduly technical, inequitable, and bad labour relations, submits the Union, to dismiss the grievance in these circumstances on timeliness grounds. The Union argues that the same factors applied by arbitrators in determining whether to exercise their discretion to relieve from time limits in the grievance procedure pursuant to Section 48(16) of the Labour Relations Act (the "Act") should be applied here as well. Decision 6. The decisions of the Divisional Court and the Court of Appeal in Leisure}voi Id (above) are binding upon me, and they stand for the proposition that an arbitrator does not have jurisdiction under Section 48(l 6) of the Act, or on any other basis, to relieve from mandatory time limits set out in the Collective Agreement with respect to when a referral of a grievance to arbitration, under the arbitration provisions of a collective agreement, must be made. The time limit in issue here is clearly a time Iimit that is part of the arbitration provisions of the Collective Agreement, as Article 10.01 is found in a separate Article that deals with arbitration. 7. Article 8.04 stipulates that all time limits in both the grievance and arbitration procedures "shall be construed as mandatory and failure to comply with any time limits shall be deemed abandonment of the grievance or denial of the grievance as the case may be." Article 10,01 states that if no written request for arbitration "is received within seven (7) working days from the date of the receipt of the decision under Step Il . .. the grievance shall be deemed to have been settled". These provisions clearly indicate that the parties intended that the time Iimit for referral of a grievance to arbitration be mandatory, and that if the time limit for the referral to arbitration is not met as stipulated, the grievance cannot proceed to arbitration, 1 do not have the authority to waive or extend the time limit in issue here, for the court decisions referred 9 to above make clear that I have no jurisdiction to relieve from the time limits set out for when a referral to arbitration must be made, or from the consequences of a failure to have met them. It is not open to me to apply Section 48(16) of the Act in the circumstances, nor to apply here the factors relevant to the exercise of my discretion pursuant to that section. 8. Accordingly, the question for me to decide is not whether I would extend the time limits under Section 48(16) or under a general jurisdiction to extend time limits {if I had such jurisdiction, which I do not), but whether the mandatory time limits set out in Article 10.01 have been met. On this question, it is clear that they have not. The Step 11 decision was provided to the Union on April 13, 2016, and the seven working days by which any referral to arbitration was required to be received by the Employer expired on April 22, 2016. The Employer neither actually received the referral letter by that date, nor is it deemed to have received it by that date. This remains so even though the time limit was only missed by one day, even though the referral was not sent by email in error due to an administrative mistake by the Union, an error for which the grievor bears no responsibility, and even though there is no prejudice to the Employer should the time limits be extended. None of these facts or factors alter the fact that the referral was not made in timely manner as required by Article 10.0 1, nor do they clothe me with a jurisdiction to relieve from the consequences set out in the Collective Agreement for the failure to have done so. IN 9. As the time limit for receipt of the referral to arbitration set out in Article 10.01 is mandatory, as the time limit was missed, and as 1 have no jurisdiction to extend the time limit or• otherwise provide relief from the stipulated consequences, the grievance cannot proceed. The grievance is accordingly dismissed. Dated at Toronto this 17'h day of April, 2018 Robert J. Herman - Arbitrator