Loading...
HomeMy WebLinkAbout1991-2308.Falcioni.92-07-21 DecisionMI ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG IZ8 TELEPHONE TELEPHONE (416) 326-7388 180, RUE OUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG 1Z8 PqCsitiItLE TELE.COPIE (416) 326-1396 2308/91 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Falcioni) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer GRIEVANCE SETTLEMENT BOARD COMMISSION DE REGLEMENT DES GRIEFS Vice-Chairperson Member Member BEFORE: FOR THE GRIEVOR FOR THE EMPLOYER W. Kaplan I. Thomson D. Montrose C. Flood Counsel Koskie & Minsky Barristers & Solicitors S. Gleave Counsel Hicks, Morley, Hamilton, Stewart, Stone Barristers & Solicitors FOR THE T. Orendorff THIRD PARTY Counsel Orendorff, Vrbanac Barristers & Solicitors HEARING June 11, 1992 Introduction By a grievance dated August 26, 1991, Natalie Falcioni, an LCBO employee in Sudbury, grieves that she was unjustly denied a permanent full-time position contrary to the provisions of the Collective Agreement. By way of remedy, the grievor seeks the position in question as well as retroactive compensation and seniority. This case proceeded to a hearing in Sudbury. The incumbent, Mr. Andrew Battistoni, was notified of these proceedings and he attended with counsel. At the commencement of the hearing, counsel for the employer and counsel for the incumbent raised a number of preliminary issues. First of all, counsel for the incumbent advised the Board that he had only been retained that morning and was not prepared to proceed. Mr. Orendorff advised the Board that his partner was to have appeared as counsel but that a pressing personal problem intervened, precluding his participation. In the result, Mr. Orendorff was called in and in the circumstances requested an adjournment. Counsel for the employer did not support that request, nor did union counsel. It being apparent that only the timeliness issue would be addressed on the first day of hearing, the Board rejected the request, and evidence and arguments were heard with respect to the timeliness issue. However, before that issue could be addressed, a further objection was made with respect to the right of the incumbent to make representations on the timeliness issue. Counsel for the union took the position that the matter of timeliness was one between the parties. While the incumbent was certainly entitled to participate once the merits of the case were under review, he and his counsel were not, in the union's submission, entitled to participate in this 3 preliminary objection. That objection arose out of the Collective Agreement, an agreement between the union and the employer, and any issue of jurisdiction was between the parties. Counsel also took the position that expanding the scope of the incumbent's participation to preliminary objections on jurisdiction would unnecessarily lengthen the proceedings and thereby prevent the expeditious determination of preliminary questions. Union counsel further noted that the interests of the incumbent in this preliminary objection were being pursued by counsel for the employer. Counsel for the incumbent took the position that he was entitled to participate in this part of the proceedings, as did counsel for the employer who referred the Board to a number of authorities on point, including a LeueFoLHuman (1986). 28 DLR. 264; B.a Qgygalma (1988) 32 L.A.C. (3d) 353 (McFetridge); Re, B iti$h Cotirribia Institute of Technolou (1979) 24 L.A.C. (2d) 129 (Hope); and Re Corporation of the City_of Brantford (unreported decision of Burkett July 21, 1989). In brief, it was employer counsel's submission that the incumbent was entitled to participate in the preliminary objection because the disposition of that objection had the potential to affect his position. In counsel's view, given that the incumbent's rights could be affected, he had an interest in the proceedings and a legal right to participate. After a brief recess, a majority of the Board ruled that the incumbent was entitled to participate in the preliminary objection as the determination of that objection could involve the disposition of his rights. Very simply, natural justice required that the incumbent be heard on any part of the case that could affect his interests. There was no cogent or principled reason why the incumbent should be forced to rely on the employer to Protect his 4 interests if he wished to independently retain and instruct counsel. The first two preliminary objections having been disposed of, evidence and arguments were heard with respect to the timeliness objection. In order to decide that objection, it is necessary to review some of the evidence with respect tolhe running of the competition. The Employer's Evidence On November 2, 1990, the employer posted for a wine consultant position in Store 585 in Sudbury. This position was open to all permanent full- and part-time clerks. One of the qualifications for the position was oral intermediate French-language skills. Among other duties, the job involves advising customers about Vintages products. There was one applicant for the job, but that person failed to pass the French test. As a result, the job was re-posted on December 10, 1990. This time, the job was open to all casual employees. The qualifications remained the same. The grievor, a casual employee, applied for the job following the second posting. So too did the incumbent and two other persons, Ms. Durigon and Mr. Eaton. All of these persons were casual employees with varying levels of seniority. The grievor had 4,832 hours of seniority and the incumbent had 4,972 hours of seniority. The applications were screened by a selection committee composed of Mr. Duhamel, the Manager of District #2, Mr. Fagan, the Manager of Vintages for the LCBO and Mr. Kotilehtil, the Manager of Store 585. Following a reading of the grievor's application and resume she was given a score of 74%. The incumbent was given a score of 83%. All the applicants were interviewed on January 30, 1991. The interview process had three parts: a question period, a written test and a product testing. For the first part, the grievor 5 received a score of 74/100 and the incumbent received a score of 81/100. For the second part, the grievor received a score of 28.5/52 and the incumbent received a score of 39.5/52. For the third part, the grievor received a score of 7/17 and the incumbent received a score of 12/17. Mr. Eaton dropped out of the process at this point, having done poorly in the examinations. Following this process, Mr. Duhamel, who is no longer an employee of the LCBO, advised Ms. Clements-Pitchkur, the Coordinator of Human Resource Services for the Northern Region, that he was satisfied with all three applicants and that they should be given the French test. Letters were sent to each of these persons congratulating them for having successfully passed the interview. The next step was the French test. That test took place on February 12, 1991. It was conducted by Ms. Clements-Pitchkur and consisted of two parts: comprehension and oral competence. The grievor received a score of 13/14 for comprehension, and the incumbent received a score of 14/14. The grievor received a score of 11.5/20 for oral competence and the incumbent received a score of 10.5/20. Ms. Clements-Pitchkur assessed the grievor as competent, and failed the incumbent. On February 14, 1991, the grievor was advised that she had passed the French test and the incumbent was advised that he had failed. In the normal course of events, the selection committee would have then made a recommendation to the Director, Mr. H. Adamson, as to which person should be given the position. Normal practice was not followed. Instead, Mr. Duhamel advised the incumbent on February 25, 1991 that he had got the job. The next day he told the grievor that she had been unsuccessful. That day, February 26, 1991, the grievor telephoned Ms. Clements-Pitchkur. She 6 was not available, and the grievor spoke twice that day with her secretary, Ms. Heidi McNeil. Ms McNeil testified about that conversation. She testified that the grievor asked her about the job, and that the grievor was very upset about the outcome of the competition. The grievor indicated surprise about the outcome as she said that she was aware that she had scored higher than Mr. Battistoni on the French-language test. The grievor also told her that she had been advised about the outcome of the competition by Mr. Duhamel, who telephoned her at home. In the result, management reviewed the competition and determined that Mr. Duhamel acted inappropriately in saying that the grievor had successfully passed the first part of the competition, namely the knowledge and skills part. Moreover, some concerns were also raised with respect to the French-language test, and the tapes of that test were sent on March 5, 1991 for review to the Coordinator of French-language services for the LCBO, Ms. Dorais. She reported back several days later that none of the applicants had sufficient proficiency to pass oral intermediate French, and Ms. Dorais concluded that Ms. Durigon was the best of the three. Apparently, Ms. Dorais's opinion was corroborated by some other government agency in Toronto. The tapes of the French test were subsequently destroyed. Ms. Clements-Pitchkur testified. She told the Board that she wrote the grievor two letters on March 18, 1991. The first letter told her that she had been unsuccessful in the competition, and the second advised her that it had been determined that none of the candidates had sufficient French proficiency. "Consequently, the final decision was based upon the 7 candidates performance at the selection process (i.e., =interview + written test + tasting test)." Ms. Clements-Pitchkur testified that after sending these letters she did not have any direct communication with the grievor until August 26, 1991 when the grievance was filed, although on July 8, 1991, Ms. Clements-Pitchkur received a request from the grievor under the Freedom of Information Act to look at the competition file, and the grievor was given all the information that contained her name. The Union's Evidence The grievor testified. She testified that Mr. Duhamel called her at home on February 25, 1991. He left a message, and the grievor returned the phone call the next day. On February 26, 1991, Mr. Duhamel told the grievor that she had been unsuccessful in the job competition because Mr. Battistoni was more qualified. Mr. Duhamel told the grievor that if she had any questions she should direct them to Ms. Clements-Pitchkur. The grievor called Ms. Clements-Pitchkur, and spoke to Heidi McNeil. The grievor's evidence of that conversation was consistent with that of Ms. McNeil. The grievor testified that she was not thinking about filing a grievance at that time; rather she wanted to find out more about the French test, having heard that Mr. Battistoni had not passed. When the grievor subsequently received the two letters dated March 18, 1991, she did not know that she had any rights under the Collective Agreement. That same day, the grievor had a meeting with Mr. Duhamel. This meeting, which was initiated at Mr. Duhamel's request, took place in his office. When the grievor went in, Mr. Duhamel reviewed the letter dealing with the grievor's lack of French-language proficiency. The grievor testified that he told her that the tapes had been tested by the government and that the grievor should be satisfied with the result. The grievor testified that she 8 told him that she was upset, and that Mr. Duhamel replied that she should take no further action "or else." The grievor testified that she did not know what he was referring to, and she thought that by saying "or else" Mr. Duhamel was threatening to transfer her to another store where she would get fewer hours. The grievor testified that she still felt unsatisfied about what had happened, and so at the suggestion of her boyfriend she made a Freedom of Information Act request for competition materials. That request was made on July 5, 1991 and she received some materials on August 6, 1991. Among the materials that the grievor had requested were the French-language tapes, and it was at this time that she learned that the tapes had been destroyed. The grievor still had no first hand information that the incumbent had failed the French language test, although there were rumours to that effect. The grievor stated that she only received confirmation that the incumbent had failed the test the morning of the hearing. After reviewing the Freedom of Information package the grievor consulted a union representative, Charlie More. The grievor knew who Mr. More was, but had never contacted him previously and had never filed a grievance. Mr. More told the grievor that he would have to check into it. He apparently did so and then advised the grievor that she had rights under the collective agreement. The grievor then made a complaint to her supervisor on August 15, 1991, and when she received no answer to that complaint she filed her grievance. Less than ten days elapsed between the making of the complaint and the filing of the grievance. The first time the grievor ever saw a copy of the Collective Agreement was when Mr. More showed it to her just prior to the filing of her grievance. 9 In cross-examination by the employer, the grievor testified that this was the first posting that she had applied for. She testified that she had heard the word grievance before but did not know what it was. She also knew that there was a union representative, but thought that he only represented full-time employees, not casual employees such as herself. The grievor agreed that she thought she had a problem in February when Mr. Duhamel told her that she was not getting the job. The grievor agreed that the March 18, 1991 letter regarding the French test indicated that everyone had failed the test, and so she knew before this hearing that the incumbent had also failed. When asked why she did not file a grievance at this point, the grievor testified that she did not think she could do anything about it. The grievor also testified that she knew that there was a Collective Agreement covering casual employees, and she also knew that it was the most qualified employees who were awarded positions in job competitions. The grievor expanded her evidence about the March 18, 1991 meeting with Mr. Duhamel, and she testified that he raised his voice, and that she was afraid of him transferring her to another store because he did that to people who made waves. The grievor was asked whether Mr. Duhamel was telling her not to file a grievance, and she testified that this is not what she understood from the conversation. She understood him to mean to keep quiet and not talk to anyone about it. In his cross-examination, counsel for the incumbent asked the grievor about her state of knowledge at various points and about the apparent delay in filing the grievance. The grievor also testified that she had had run-ins with Mr. Duhamel on previous occasions, but had never been threatened by him before. The grievor agreed that at the same time that she made her Freedom of Information Act request an investigation into Mr. Duhamel's 10 activities was taking place. The grievor agreed that she could have filed that request earlier, and that she could have asked for union assistance earlier. No one stopped her from filing the request or appealing to the union. The grievor testified that throughout April, May and June she was upset about the competition results but felt that there was nothing she could do about it. In re-examination, the grievor testified that she thought the French- language issue was a government thing and so it did not involve the union. She also testified that she had been transferred by Mr. Duhamel in the past. The evidence having been completed, the matter turned to argument. Employer Argument Employer counsel began his submissions by referring to a number of provisions of the Collective Agreement. It is useful to set those provisions out below: Article 27.3 Stage 1 (Complaint Stage) (a)(i) An employee who has a complaint or difference shall discuss the complaint or difference with his/her supervisor, as designated by the Employers, within ten (10) days of the employee first becoming aware of the circumstances giving rise to the complaint or difference. (b)The supervisor shall consider the complaint or difference and give his/her response to the employee within ten (10) days of the discussion. (c)If the complaint or difference is not satisfactorily resolved by the supervisor, it may be processed within an additional ten (10) days from the date of the supervisor's 11 response or the expiration of the time limits set out in (b) above, in the following manner. (a) The employee may file a grievance in writing with his/her supervisor specifying the clause or clauses in this Agreement alleged to have been violated. Article 27.10 (a) The Crown Employees Grievance Settlement Board shall not be authorized to alter, modify or amend any part of this Agreement nor shall the Crown Employees Grievance Settlement Board give any decision inconsistent with the provisions of this Agreement. Article 27.12 Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn. In counsel's submission, the grievor had failed to file a timely grievance, and argued that in these circumstances the Board had no choice but to uphold the employer's objection and dismiss the union case. Employer counsel referred to the Gordon 0048/89 (Dissanayake) case, where almost identical Collective Agreement language was considered by the Board. In Gordon the Board cites from a decision of the Divisional Court in the judicial review of the Pierre 492/86 (Verity) decision, which was reported at (1990) 74 O.R. (2d) 700. The Pierre decision concerned the proper construction of some similar Collective Agreement language in a Collective Agreement between OPSEU and Management Board. 12 In Pierre the Board held that the time periods begin to run when the grievor has knowledge or awareness that there has been a violation or possible violation of the Collective Agreement. Put another way, the employee must be aware of a "complaint or difference." The Divisional Court concluded that the Board was correct in its interpretation. In the endorsement to the record the Court found: We are all of the view that the Board was correct in its conclusion that the 20-day time period within which the grievor had to bring her grievance, began to run only when she became aware that she had a complaint that was based on a violation or possible violation of the collective agreement.... The grievor knew at least by November, 1985 that she was unhappy about a possible exposure to T.B., but she was not aware until late February, 1986 that such exposure might constitute a complaint or difference with her employer arising out of a contravention by it of the collective agreement. Until she became so aware she could not have believed she had such a complaint (at 704-5). Applying these principles in the Gordon case, the Board held: As under the OPSEU agreement, the "complaint or difference" referred to in article 27.3(a)(i) must be a complaint or difference under the collective agreement. In our view, the "circumstances" giving rise to such a complaint or difference are two fold. First, there must be a right under the collective agreement. Second, there must be an act or omission by a party to the agreement which the other party feels has abridged or contravened that right. Before an employee can be said to have become aware of "the circumstances giving rise to the complaint or difference" under article 27.3(a)(i), he or she must be aware of both the existence of a right and a factual basis which may contravene that right. As under the OPSEU agreement, the parties, by alluding to the employee's awareness, have intended to introduce a 13 subjective test. The intent is that an employee must act expeditiously once he or she becomes aware that a right under the collective agreement may have been contravened (at 15). Applying these cases to the instant one, employer counsel argued that the grievor knew on March 18, 1991 that she was unsuccessful in the competition. The grievor thought on that date that someone less qualified had been given the position. In counsel's submission, the key question in these circumstances was whether the grievor was then aware of a right, in that she was aware of a problem. In this regard, counsel suggested that she was aware of the right, and he referred to the grievor's evidence in which she testified that she knew that jobs were to go to the most qualified person. The grievor considered herself more qualified because she thought that she had passed the French test and that the incumbent had not. Accordingly, in counsel's submission, the grievor was aware of a right, and it mattered little whether she was aware or not of the specific provision of the Collective Agreement giving rise to that right. Counsel suggested that the grievor's evidence about being threatened by Mr. Duhamel was an attempt to explain the delay, and suggested that it was noteworthy that the grievor waited until Mr. Duhamel was in trouble before she filed her grievance. Counsel argued that on all these facts the time periods properly began to run on March 18, 1991. The grievance was clearly out of time, and therefore inarbitrable. Incumbent's Argument Counsel for the incumbent argued that time limits are in a Collective Agreement for a number of reasons, one of which is to preclude situations such as this one. Counsel noted that the grievor was advised in March that she did not have the job, but took no action about it until July when she filed the Freedom of Information request. Counsel suggested that no 14 satisfactory explanation had been given for the delay, and suggested that the effect of permitting this grievance to proceed would be to indefinitely extend the time periods contrary to the terms of the Collective Agreement. Counsel noted that no one stopped the grievor from filing a grievance or from investigating her situation and taking appropriate steps. She failed to do either, and the grievance was, in counsel's submission, accordingly out of time. Union Argument In counsel's submission, under the Blake doctrine, the Gordon case was governing and was directly applicable to the instant case. In counsel's view, the evidence established that the grievor was not aware that her complaint might be capable of resolution under the Collective Agreement until AugUst 6, 1991. That is when the grievor spoke to her union representative and learned that a violation of the Collective Agreement may have taken place. In counsel's submission, prior to that point the evidence establishes that the grievor did not know the Collective Agreement had been infringed. When she had heard that she had passed the French test and the incumbent had not she thought that this had something to do with the government and not with the Collective Agreement. Counsel agreed that the grievor thought she had a problem, but argued that the evidence was clear that she did not know that she had a grievable problem. She did not know what a grievance was, and she had never seen the Collective Agreement. Counsel argued that there was no evidence that the grievor only acted because Mr. Duhamel was in trouble. Counsel argued that the evidence established that the grievor was bothered about what had happened, and after discussing it with her boyfriend she took appropriate steps. Once she became aware that she might have a grievance, once she had the necessary subjective awareness of her rights, she complied with the time limits. 15 Accordingly, in counsel's submission, the grievance was timely and the Board should take jurisdiction with respect to the merits. Decision Having carefully considered the evidence and arguments of the parties, we have come to the conclusion that the preliminary objection must be dismissed. It is our view that the evidence establishes that the grievor did not know she had a right under the Collective Agreement until August 1991. Her evidence is uncontradicted that she believed she had a problem, but she also did not think she could do anything about it because it had to do with the French tests which she thought were imposed by the government. Although Mr. Duhamel did not give evidence in this proceedings, the issue was complicated by the threat the grievor testified to having received from him. This evidence was uncontradicted. At the very least this threat had the effect of discouraging any further investigations on her part as to the possible existence of any remedy. The fact that the grievor was a casual employee who had never seen the Collective Agreement, applied in a job posting, or knew what a grievance was further delayed her learning about the possible infringement of the Collective Agreement and the existence of remedy for that infringement. Because the grievor knew that she had a problem she continued to be bothered by it, and in discussions with her boyfriend she learned of a way in which to find out more about what had taken place. When she received the Freedom of Information dossier her suspicions were aroused by the news that the French tapes had been destroyed. It was at this point that the grievor contacted a union representative, and she followed the procedure , I omson Member 16 set out in the Collective Agreement. Applying the Gordon test to these facts leads us to the conclusion that while the grievor knew she had a problem no later than March 18, 1991, she did not know that she had a possible grievance until August 1991. As soon as she learned of the possible existence of a grievance she acted without delay and in conformity with the Collective Agreement. Accordingly, the preliminary objection is dismissed. It should be added as well, although this is simply an observation and is not a basis for our decision, there is no evidence of any prejudice to the employer or to the incumbent by allowing this case to proceed. Moreover, counsel for the incumbent properly made the point that the time periods are present for a reason and that at some point so much time will have elapsed so as to preclude the fair hearing of a case. This is not such a case. In the result, the preliminary objection is dismissed and the case will proceed on a date set by the Registrar. DATED at Ottawa this 21 s t day of July, 1992. William Kaplan Vice-Chairperson D. Montrose Member