The URL can be used to link to this page

Home My WebLink About1980-0001.McGregor.82-07-12. . IN THE MATTER OF AN ARBJTRATION Under THE CROWN EMPLOYEES COLLECTWE BAR?tINING ACT, , . Before THE GRIEVANCE SETTLEMENT BCi=uRD . . Between: OLBEU (:vl:. G. McGregor) and The Crown in Right of Ontario (Liqqldor Control 3oard of Ontario) J.F.W. Weatheriil Chairman S. Schachter Member H.3. Laing Member For the Griever: A.M. Heisey, Counsel Blake, Cassels d(. Graydon For the Employer: M.P. Moran, Counse! Hicks, Morley, Hamilton, Stewart & Storie Hearing: dlevor Employer March 29, 1982 Written arguments submitted on April S, 16 and 26, 1982. -2- The grievance in this matter relates to the discharge of the grievor, effective October 3, 1979. As is noted in the Adjournment dated November 18, 1981, the employer has raised a preliminary objection with respect to the timeliness of these proceedings. Evidence with respect to that objection was received at the hearing on March 29, 1982, and written argument thereon was submitted '3 on the dates noted. The objection raised by the- employer is two-fold. It :, is first that the provisions of the grievance procedure were not followed, and second that there was undue delay in proceeding to hearing , once the matter had'been referred to arbitration. With respect to the first ground of objection, article 22 of the collective agreement provides that grievances in discharge cases may be filed within ten days after the employee~ce.asesto work. Counsel for the employer acknow- ledged.that the grievance was filed on time. the evidence before this Board does not, however, indicate what dis- position, if any, was made of the matter at the second step o-f the grievance procedure, that being the step at which discharge grievances are to be filed. Article 21.5 (b) of the collective agreement, it may be noted, provides that if the grievor fails to act within the time limit set out -3- in the second step, the grievance will be considered abandoned. It is to be noted as well, however, that there is no',,evidence of any timely objection being raised to the grievance, prior to the time when it was referred to arbitration. Article 21.5 (c) 'calls for investigation‘of "second- step" grievances ,within fourteen days, and for a decision in writing to be issued within seven days thereafter. The evidence before us does not reveal whether or not these requirements were met. ~_ Article 21.5 (e) provides that failing settlement of the grievance, it may be submitted to this Board within seven working days following receipt of the final decision. In fact, the reference to arbi- tration was received by this Board on January 4, 1980. It would appear that there was a delay of some six weeks in submitting the matter to arbitration. That the time limits set out in the collective agreement in this respect were not met, is common ground. It is the employer's position that the failure to meet . the time limits set out in the collective agreement is fatal to the grievance. The time limits are mandatory, ,rather than directory, although there is provision (not resorted to by the parties in this case)' for extension 1 of time limits by mutual agreement in writing. Reference has been made to article 21.5' (b), and may also be made to article 21.8 (a) which provides that no grievance may be submitted to this Board which has not been properly carried through the grievance procedure. Since the grievance was not processed in accordance ,(~yY< ':, with the requirements of the collective agreement, since .': &hose requirements are mandatory, since there has been no extension of the time limits by.the parties, and since this Board has no jurisdiction (of the sort conferred on arbitrators, for example, under The Labour Relations Act), to relieve against the consequences.of failure to comply with time limits, it would have to be concluded, in general, that the grievance has been "abandoned" (as the collective agreement provides), and that this Board has no juris- diction to hear it. It is the union's position that the employer is . . estopped from relying on the proceduralprovisionsof the collective agreement, by reason of its own past conduct in violation thereof; and by reason of an oral agreement to waive time limits. Further, it is argued that regardless of the provisions of the collective agreement, employees have a statutory right to arbitration in.discharge cases, in addition to any other rights in the collective agreement. -5- That employees cannot be deprived of such a right by virtue of mandatory time limits in a collective agreement was established by this Board in the Keelinq decision .(45/78). While the Board has ~subseguently expressed some hesitation with respect to the decision in Xee-linq (see, for example, Clements (112/80), it has been generally accepted as established in the Board's' jurisprudence. In Clements, it was recognized that where issues of statu- tory interpretation arise (as opposed to issues of collec- .: tive agreement interpretation), the Board might relax somewhat its standard of review in reconsidering previous decisions.' Itmay well be, particularly in the light of certain'decisions of the courts which have been issued since Keelinq was decided, that the Board's interpretation of section 18 of The Crown Employees Collective Bargaining Act should be reconsidered. The provision in a collective agreement of procedural provisions, such as time limits, governing the exercise of a right should not be read, we think, as contrary to the statutory establishment of that right. In the instant case, while we consider that a timely objection by the employer would have been effec- tive, there was in fact no objection raised with'respect to the procedures taken in this matter until March,28, 1980, nearly three'months after the matter had been referred :. i ! .’ other management response to the grievance at any stage. The objection raised on March 38, 1980, was raised with respect to a large number of grievances, listed in an attachment to the.letter of objection. With respect to the instant case at least, the objection was not raised in timely fashion. Failure to comply with mandatory time limits is a procedural irregularity which can be waived: Palmer, Collective Agreement Arbitration in Canada, p. 165. Evidence that there was a waiver in this case is revealed in several, aspects of this matter: the matter was allowed to go through the grievance procedure; there was a failure to object at the first opportunity; and there was .a sub- stantial lack of compliance with the grievance procedure on both sides. Waiver may be found in such circumstances: Palmer, at p. 164 and cases cited. As to the last-mentioned aspect, the evidence is clear that for some time there had been no,reference to time limits by either party. Then in June, 1979, the employer wrote the union advising that although time limits had been waived for some time, grievances thereafter received would be required to be processed in accordance with time limits except as agreed in individual cases. Later, on July 6, 1979, the employer wrote the union to advise that time *limits would be waived ( ~’ -7- 5 .,., for the following three week period. The union had responded to the first letter by a,policy of strict compliance with time limits , which policy it relaxed upon receipt of the second letter. ; .,: After the expiry of,the three-week period referred to in the letter of July 6, 1979, the union did not revert to strict compliance. There is some evidence, conflicting, to tne.effect'that this was because of an oral agreement made between the union's legal admini- strator and the employer's staff relations officer: We make no finding as to that. Even without there being any explicit agreement, the fact is (on the evidence before us) thatthere was neither compliance with nor insistence upon the time limits set out in the collective agreement. Grievances were filed and dealt with. Many were referred to arbitration. Not until March, 1980,, was objection raised. Insofar as it applied to the instant case at least, that objection was, we'find, untimely. For the' foregoing reasons we do not accept the first ground of objection raised by the employer. The second ground of objection is that there was an undue delay in proceeding to a hearing before this Board. In part, delays in scheduling hearings of matters which -8- I had 'been referred to the Board for arbitration were due, at the material times, to the large backlog of cases . which had built up. Delay attributable to the tribunal's caseload would not, of course, be a proper ground for denying apartyits right to a hearing. To some extent, however, del~ays in hearing particular cases may be atti- buted to the union, in that it advanced cases asready for hearing, without necessarily.having regard to the order in which they had been filed. That is, some cases were regarded as more important than others. This procedure was one of which all concerned were aware. In the instant casei no claim is made for compensation. In one sense, - then, it may~be considered, perhaps'especially from the ;y> ,. employer's point of view, as having somewhat less importance ..~ than certain other cases. However this may be, there was no objection raised by,the empioyer with respect to this procedure. It was, in our view, appropriate to the circum- \. stances which then obtained. We do not consider, in these circumstances, that dely in scheduling the matter for hearing constitutes a ground for refusing to proceed. Accordingly, this .second ground of objection also fails.' I For the foregoing reasons, it is our conclusion that the matter is arbitrable. The Registrar is directed to list the matter for hearing on the merits. It may be that the matter will then be heard by a panel of 'the Board differently constituted. :’ ,‘: ..,.A : ..:: DATED at Toronto, Ontario this 12th day of July, 1982. J.F.W. Weatherill Chairman "1 concur in the result" S. Schachter Member H.J. Laing Member