HomeMy WebLinkAbout2024-00888.Anderson.24-06-20 Decision
Crown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
GSB# 2024-00888
UNION# 2024-5108-0047
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Anderson) Union
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario) Employer
BEFORE Marilyn A. Nairn Arbitrator
FOR THE UNION Anjana Kashyap
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Neil Lenihan
Liquor Control Board of Ontario
Labour Relations
Senior Manager
HEARING June 18, 2024
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Decision
[1] The parties convened pursuant to their expedited med/arb process. This process
anticipates that mediation efforts will be undertaken to attempt to resolve the
grievance, failing which a decision can be rendered based on the factual material
put forward during that process. The parties expect and agree that any decision
rendered will contain only brief reasons and will have no precedential effect.
[2] On October 1, 2023, the Grievor, Sharde Anderson, filed a grievance against the
Employer alleging harassment (the “harassment grievance”). The written
grievance was filed at Stage 2 of the grievance procedure as set out at Article 28
of the collective agreement. The Grievor confirmed that she had spoken to her
supervisor about her concerns prior to the filing of the written grievance as is also
contemplated by Article 28 of the collective agreement.
[3] A Stage 2 meeting was held on February 16, 2024. The Grievor confirmed that
between October 2023 and February 2024, the Employer was investigating,
conducting a fact-finding with respect to the issues raised in the harassment
grievance and that she was also dealing with some WSIB issues. This grievance
does not challenge any delay in the holding of that Stage 2 meeting. Nor would a
Stage 2 meeting likely have been productive in the absence of the Employer
having had an opportunity to conduct some inquiry into the allegations being made.
[4] This grievance was filed on March 10, 2024, alleging the Employer failed to
convene a Stage 3 meeting within the time limits set out in the collective
agreement. No Stage 3 meeting regarding the harassment grievance was held.
Regardless, the harassment grievance did move to the next step in the grievance
procedure, that being Stage 4, referral to arbitration. There is no dispute that the
harassment grievance was properly referred to arbitration before this Board and
has been scheduled for hearing in the normal course. Delay in getting to a hearing
arises as a result of that subsequent scheduling process and has nothing to do
with the conduct of the grievance procedure, including any failure to hold a Stage
3 meeting.
[5] It was apparent that the Grievor misunderstood the nature of this grievance. She
arrived hopeful to have her harassment issues considered. She was unclear as to
what remedy she was seeking pursuant to this grievance as, not surprisingly, what
is important to her are the issues and potential remedial requests that are
contained in her harassment grievance. This grievance appears to have been filed
at the urging of a local executive member.
[6] Article 28 of the collective agreement sets out the grievance procedure and
includes the following:
28.6 STAGE 4
If the grievor is not satisfied with the decision of the Chair or designee or if a
decision is not received within the specified time limits, the grievor may apply to
the Crown Employees Grievance Settlement Board for a hearing of the
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grievance within five (5) days of the date they received the decision or within
five (5) days of the expiration of the specified time limit for receiving a decision.
(emphasis added)
[7] The evidence did not establish that the Employer was solely responsible for the
failure to convene a Stage 3 meeting, such that a remedial declaration might flow.
Further, in the absence of a Stage 3 meeting, and, more particularly, in the absence
of an Employer decision having been made at Stage 3, the collective agreement
expressly provides that the Grievor may apply to this Board for a hearing. That
request may be made within 5 days of the expiration of the time for receiving a
decision. That is what happened here.
[8] There can be many reasons why a grievance meeting is not convened or is not
convened within the time limits contemplated by a collective agreement. Most
collective agreements, including this agreement, allow for parties to extend time
limits on consent. The scheduling of a grievance meeting requires the cooperation
of the employer, union, and grievor in finding a date and time that is available for
all to participate. That is a shared responsibility and does not rest solely with the
employer. It is also incumbent on the union, not the employer, to ensure that the
grievor is available and is fully informed as to the accurate time and date of any
meeting scheduled with the employer.
[9] And this collective agreement, like many other collective agreements, expressly
provides a specific remedy should a grievance meeting not take place within the
time limits contemplated and the parties have not agreed to extend those time
limits. That remedy is to move the grievance to the next stage of the grievance
process. That is precisely what occurred in this case. That remedy is provided at
each stage of the grievance procedure under the terms of this collective
agreement, although only the Stage 3 was at issue here. In the result, there was
no detrimental impact on the processing of the Grievor’s harassment grievance by
the parties’ failure to convene a Stage 3 meeting within the time limits set by the
collective agreement.
[10] Having regard to Article 28 and other terms of the collective agreement, I find it
necessary to comment on the grievance’s stated remedial requests and to make
some general labour relations observations.
[11] In terms of remedy, this grievance sought a fine payable by the Employer of $1000
for each day it exceeded the timelines, compensation for the employee, the
negotiation of “process improvements”, joint training sessions, and other remedies
relating to the re-negotiation of the grievance procedure.
[12] As noted, the remedy for a failure to meet the timelines has been expressly
identified in the collective agreement by the parties. That is a clear indication that
fines, or other compensation are not remedies that were considered appropriate
by the parties. That agreement inherently recognizes that it may be either party
that is responsible for the fact that a grievance meeting is not held in accordance
with the timelines. Whether that responsibility rests with the union, the employer,
or is a joint outcome, one or other of the parties may also be unwilling to agree to
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extend the time limits. The collective agreement ensures that a grievance will
continue through the grievance process and not be unduly delayed. The grievance
may be moved to the next stage, up to and including to arbitration before the Board.
While the benefit of the grievance process in terms of discussing the issues giving
rise to the grievance may be lost, that discussion requires the cooperation of both
institutional parties and the grievor in order for there to be appropriately scheduled,
informed, and useful discussions.
[13] Any changes to the grievance procedure contained in the parties’ collective
agreement are properly the subject of collective bargaining. An arbitrator dealing
with an individual grievance has only the jurisdiction to interpret and apply the
existing terms of the collective agreement. Article 28.10 (a) of this collective
agreement expressly prohibits this Board from ‘altering, modifying or amending’
any term of the collective agreement. Any remedy seeking a change to the terms
of the grievance procedure is simply not available through the filing of a grievance.
[14] In terms of broader labour relations considerations, I reiterate that the Grievor was
under the impression that her harassment issues would be dealt with pursuant to
this grievance and that the delay in getting to a hearing was a result of a failure to
convene a Stage 3 meeting. That has caused the Grievor unnecessary anxiety
and has led to antipathy towards the Employer and misplaced mistrust of her Union
advisors, based on her misunderstanding of the process. Her harassment
grievance is scheduled for hearing, and it was referred to arbitration and scheduled
in the normal course. The purpose of the collective agreement, both in its terms
and in the application of those terms, is to foster harmonious labour relations
between the parties and the employees covered by its terms. That is a
responsibility of both parties to the collective agreement.
[15] In that vein, and as noted, the grievance process anticipates the cooperation of the
parties in scheduling grievance meetings and, where it makes sense to do so, to
agree to extend time limits. And if not, the collective agreement provides that the
grievance be moved through the grievance process in any event.
[16] Having regard to the above, this grievance is hereby dismissed.
Dated at Toronto, Ontario this 20th day of June 2024.
“Marilyn A. Nairn”
Marilyn A. Nairn, Arbitrator