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HomeMy WebLinkAboutHommersen 11-04-11 IN THE MATTER OF AN ARBITRATION BETWEEN: KINARK CIDLD AND FAMILY SERVICES, SYL APPS YOUTH CENTRE (The "Employer") AND ONTARIO PUBLIC SERVICES EMPLOYEES UNION, LOCAL 213 (The "Union") AND in the matter of the individual grievance of Mr. Ed. Hommersen. ARBITRATOR: William A. Marcotte APPEARANCES: FOR THE EMPLOYER: D. I. Wakely, counsel J. Ryans, counsel J. Dawes, H. R. dir. FOR THE UNION: M. Bevan, OPSEU rep. E. Hommersen, grievor Hearing by way of conference call on March 16, 2011. 2 AWARD In his grievance of February 8, 2008, Mr. Ed Hommersen (the "grievor") claims he was improperly denied his request for voluntary lay-off by the Employer in breach of art. 15.08, and by way of remedy requests "appropriate severance and termination pay and any outstanding monies owed." The Employer raised a preliminary objection, viz., the grievance is untimely and, therefore, inarbitrable. The parties agree that this award deal only with the Employer's preliminary objection. Reference was made to the following provisions of the collective agreement under which the . . gnevance arIses: 1.01 The general purpose of this Agreement is to establish and maintain collective bargaining relations between the Employer and its Employees and to establish and maintain mutually satisfactory working conditions, hours of work, and wages and to provide procedures for the prompt and equitable disposition of grievances for all Employees who are subject to the provisions of this Agreement. 4.01 The Union recognizes and acknowledges that the management of the Employer's operations and the direction of the working forces are fixed exclusively in the Employer and without limiting the generality of the foregoing the Union acknowledges that it is the exclusive function of the Employer to: (a) Maintain order, discipline and efficiency. . . 9.01 The purpose of this Article is to establish a procedure for the timely settlement of grievances. STEP 1 An Employee who has a complaint relating to the interpretation, application, administration or alleged violation of this Collective Agreement may discuss her/his complaint with her/his Supervisor. Such a complaint shall be raised with the Supervisor within five (5) working days of when s/he ought to have reasonably been aware of the circumstances giving rise to the complaint. The Supervisor shall verbally inform the Employee of her/his decision within three (3) working days of receiving the complaint. If the Employee is dissatisfied with the Supervisor's decision or s/he does not receive a decision, s/he may file a written grievance at Step [sic] 2 of the procedure as follows: 3 STEP 3 The Employee shall with the assistance of her /his Union submit the written grievance to the Director, Syl Apps or her/his designee who shall be the appropriate Corporate Director, e.g. Director, Corporate Services in the case of a grievance from employees otherwise supervised either directly or indirectly by a Manager who reports to a Corporate Director within five (5) working days of receipt of the Step 2 decision or within five (5) working days of when s/he should have received the decision. The Director, Syl Apps or her/his designee shall convene a meeting within ten (10) working days of receipt of the grievance. The Union Staff representative may attend this meeting. The Director, Syl Apps shall render a decision within ten (10) working days of the meeting and if the Employee is dissatisfied with the decision or if a written decision is not rendered, the grievance may be referred to arbitration as hereinafter provided. 9.12 Any complaint or grievance which is not commenced or processed through the next stage of the Grievance or Arbitration Procedure within the time specified shall be deemed to have been dropped. However, time limits specified in the Grievance Procedure may be extended by mutual agreement in writing between the Employer and the Union. ARTICLE 11- ARBITRATION 11.01 Where a difference arises between the parties relating to the interpretation, application or administration of this Agreement including any question as to whether a matter is arbitrable or where an allegation is made that this Agreement has been violated, either party may after exhausting any Grievance Procedure established by this Agreement notify the other in writing of its desire to submit the difference or allegation to arbitration. The notice shall contain the name of the party's proposed Arbitrator and shall be delivered to the other within ten (10) working days of the reply under Step 3. The recipient party shall within ten (10) working days, advise the other whether it agrees with the other party's proposed Arbitrator or suggest alternative Arbitrators. 11.05 The Arbitrator shall not be authorized to make any decision inconsistent with the provisions of this Agreement nor to alter, modify or amend any part of this Agreement. 15.08 Voluntary Lay-Off (a) Subject to the conditions outlined in this Article, an Employee who has not received a notice of lay-off may offer to be laid off. 4 (b) An Employee shall advise the Director of Human Resources in writing of her or his desire to make an offer of voluntary lay-off. (c) The position of an Employee making an offer under this Article will be considered to be available and any Employee who has received a Notice of Lay-Off shall be offered such position, on the basis of seniority, provided that s/he is qualified to perform the work. (d) An Employee who is voluntarily laid off in accordance with this Article may elect to terminate their employment and receive termination and severance pay in accordance with the Employment Standards Act. 15.10 Severance Severance pay shall be paid to Employees in accordance with the terms of the Employment Standards Act with the following modifications: ( a) The calculation of severance pay of an Employee who qualifies for severance pay shall be based on the regular rate of pay of the Employee at the date when s/he ceases to be an Employee. Notwithstanding this, any Employee who was displaced from her/his position by the Employer and who was unable to access another position under the lay-off provisions of the Collective Agreement and accepts an assignment to a diminished (lower hourly rate) position, shall be paid severance pay at the regular hourly rate oftheir former position provided that the subsequent lay-off which led to severance pay entitlement is effective within twelve (12) months of accepting the "diminished" position. The parties submitted the following Agreed Statement of Facts: Agreed Statement of Facts 1. Kinark Child and Family Services: Syl Apps Youth Centre ("Kinark") and the Ontario Public Service Employees Union, Local 213 (the "Union") have been parties to a series of collective agreements. The collective agreement applicable to the instant grievance ran from April 1, 2006 until March 31, 2008 (the "Collective Agreement"). 2. Ed Hommersen (the "Grievor") was an employee of Kinark at the Syl Apps Youth Centre from December 2000 until February 11, 2008. The Grievor was previously employed by the Government of Ontario at the same facility from July 14, 1986 until the facility was transferred to Kinark in December, 2000. The Grievor received all of his entitlements under the Employment Standards Act, 2000 at the time of the transfer. Accordingly, for the purposes of calculating any entitlement to termination and/or severance pay, the Grievor's service date is December, 2000. 5 3. At the time of the cessation of his employment, the Grievor was represented by the Union and was subject to the terms and conditions of employment outlined in the Collective Agreement. 4. In January, 2008, the Grievor provided Kinark with written notice of his resignation of employment, which was to be effective February 11,2008. The Grievor indicated at that time that he was resigning because he had obtained alternative employment. 5. Several days after handing in his resignation notice, the Grievor requested that he be voluntarily laid off in accordance with Article 15.08 of the Collective Agreement. At that time, there was one individual who had been on lay-off for several months but there were no outstanding notices of lay-off. Kinark did not allow the Grievor to be voluntarily laid off pursuant to Article 15.08 for two reasons. First, it is Kinark's position that Article 15.08 is only applicable where there has been a notice oflay-offbut the lay-offhas not yet been implemented. Second, Mr. Hommersen had already indicated his intention to resign his employment, and thus it was Kinark's position that he could not change his mind and be voluntarily laid off. 6. On February 8,2008, the Grievor grieved the employer's decision not to allow him to take a voluntary lay off pursuant to Article 15.08. The grievance proceeded through the grievance procedure set out in Article 9 of the Collective Agreement, and was denied by Kinark at every step of the grievance procedure. 7. Article 11.01 of the Collective Agreement states that a referral to arbitration shall be delivered to Kinark within ten (10) working days of Kinark's reply at Step 3 of the grievance procedure. The grievance was not referred to arbitration within the time limit set out in Article 11.01 of the Collective Agreement. In fact, the grievance was not referred to arbitration until June 28, 2010. 8. The grievance was not referred to arbitration because the Union Steward at the time failed to appreciate the significance of the time limits set out in Article 11.01. . 9. On October 5, 2010, after receiving the referral to arbitration, Kinark put the Union on notice that it would be arguing that the grievance was untimely and therefore inarbitrable, given that it was filed on February 8, 2008 and not referred to arbitration until June 28, 2010. 10. It is Kinark's position that the Arbitrator has no jurisdiction to extend the time limits in the Collective Agreement for referring the grievance to arbitration and that therefore the grievance is inarbitrable. The Employer submitted that under the provisions of articles 1.01, 4.01 and 9.01, the parties have expressed their agreement, broadly, for grievances to be dealt with in a manner that is prompt and efficient. In that respect, under art. 9.01 Step 3, the parties are agreed that it is "within 10 working days" of the Employer's decision that a grievance "may be referred to arbitration. . ." In the instant 6 case, the referral to arbitration was excessive, in that it occurred some 28 months following the Employer's Step 3 decision on the grievance. That being the case, art. 9.12 is relevant and applicable, to wit: "Any. . . grievance which is not commenced or processed through the next stage of the Grievance or Arbitration Procedure within the time specified shall be deemed to have been dropped." That is, the language requiring processing grievances to arbitration requires mandatory adherence to the time limits in the collective agreement. Moreover, under the second sentence of art. 9.12, in the instant case there is no "mutual agreement" of the parties to extend the time limits for referral to arbitration. As concerns referrals of a grievance to arbitration under art. 11.01, the parties are agreed that the notice of such referral "shall be delivered to the other [party] within ten (10) working days of the reply under Step 3." That is, similar to the language under art. 9.01 Step 3, the time limit for notification of the referral is expressed in mandatory language, such that a failure to adhere to it makes the grievance inarbitrable. And, under art. 11.05 an arbitrator has no authority to extend the time limit specified in art. 11.01. While it is recognized that an arbitrator may have the authority to extend time limits in the grievance procedure, the Ontario Court of Appeal in Re Leisureworld Inc. and 8.E.1 u., Local 294 [1997] O.J. No. 4815(QL) (ant. c.A.), ruled there is no such jurisdiction to extend time limits for a referral to arbitration, and which decision is binding Re Family and Children's Services of Waterloo v. Ontario Public Service Employees Union (Peever), [1997] O.L.A.A. No. 794, 66 L.A.C. (4th) 294 (Kaplan), and, Re St. Lawrence Lodge v. Canadian Union of Public Employees, Local 21 07 (Knapp), [2006] O.L.A.A. No. 400, 86 C.L.A.S. 229 (Brandt). Thus, in the instant case because the grievance was referred to arbitration well-beyond the mandatory time limit of 10 working days following the Employer's Step 3, and, absent arbitral authority to extend time limits for such referral under art. 11.05 of the collective agreement, in line with the Leisureworld decision, the grievance must be found to be untimely and, therefore, not subject to arbitration. The Union submitted that it is difficult to argue against the Court of Appeal's direction resulting from the Leisureworld decision. Moreover, it does not dispute that under art. 11.01 a failure to notify, in the instant case, the Employer of the referral to arbitration within the time limit therein is clearly provided for as an abandonment of the grievance. However, the Union submitted that the grievor cannot be faulted for the some 28-month delay in referring the grievance to arbitration. 7 Rather, the grievor had been assured by a Union steward that his grievance had been properly referred to arbitration and it was only as a result of inquiring about his complaint some time after the expiring of the time limit in art.ll. 01, when it was discovered his grievance had not been properly filed. In reply, the Employer submitted that it takes no issue as to the circumstances of the delay of the referral to arbitration. Nonetheless ,the result remains, viz., the grievance is untimely and, hence, not subject to arbitration. The issue to be determined in this award is whether or not the grievance is untimely and in the result, inarbitrable. There is no issue between the parties that the grievance was not filed within the mandatory time limits under art.ll.0 1 which govern grievance referrals to arbitration. Further, there is no dispute that where the art. 11.01 time limit has been breached, a grievance pursuant to art. 9.12 "shall be deemed to have been dropped", i.e., abandoned. In the instant case, the grievance was filed well beyond the 10-working day time limit in art. 11.01 for referring a grievance to arbitration following the Employer's Step 3 reply. (There is no issue that, while unspecified in the Agreed Statement of Facts, the Employer's Step 3 reply was provided to the Union in a timely manner.) Thus, I find that under art. 9.02, the grievance was abandoned, more accurately "dropped", by the Union. Since the language of article 9.12 and 11.01 provides for mandatory adherence to the time limits for referral of a grievance to arbitration, and there is no agreement between the parties to extend relevant time limits, it would seem that, under art. 11.05, I am without the authority to extend the time limits for referral to arbitration Re Leisureworld, supra, as acknowledged by the Union. Rather, it is the Union position that the grievor is not responsible for the delay in referring his grievance to arbitration and, presumably, this lack of fault ought to be considered for purposes of determining the Employer's preliminary objection. In my view, and I so find, while the grievor is not responsible for the delay in referring his grievance to arbitration, the applicable provisions of the collective agreement are clear as to the mandatory nature ofthe time limits and the consequence of a failure to follow those time limits. In that regard, while there may be, in arguendo, arbitral authority under the collective agreement to extend time limits in the grievance procedure, and which decision-making may take into account the reasons for 8 a delay, there is no such latitude under the provisions of the instant collective agreement in regard to the time limits for referral of a grievance to arbitration. Accordingly, I must find that under article 9.12 and 11.01, the grievance is untimely and, therefore, not subject to arbitration. The grievance is dismissed. Dated at Toronto, this / (-1fl daYOf~2011. {J~O/!&;;j/f William A. Marcotte Arbitrator