HomeMy WebLinkAbout1980-0439.Gigliozzi.81-09-01439/80
155/81
IN THE HATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE SARGAINING ACT
Before
T9E GRIEVANCE SETTLEMENT BOARD
Between: --
Before: --
For the Griever: -
Griever xr. 9. Gigliozzi
- And -
The Crown in Right of Ontario
(Liquor Control Board of
Ontario) EnplCJyer
Prof. J. w. samue1s Vice Chairman
Mr. S. R. Hennessy Nember
MS. H. J. Laing Member
Xc. J. !.I. Rosen, Counsel
Rosen s. Fleming
For the Emplover: 1 Mr. - M. P. NOran, Counsel
Hicks, Morley, Hamiltcn, Stewart & Storie
Hearings: - June 25 & August 21. 1981
CONTENTS
2.
?ace
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Facts Relating to the Issue of Timeliness....... 2
The Collective Agreement........................ 7
Arqanent of the Parties..........;.............. 14
1. F&r the Employer ...................... 14
2. For the Griever ....................... 17
Conclusion.......:.............................. 18
List of Exhijits.....~........................... 21
DECISION ON R PRELIXINARY OB;ZCT.IOPl
RELATING TO TIMELINZSS
Introduction
3.
The Grievor complains against his suspension
(439/80) and ultimate discharge (LSS/81) by t:?e Employer.
We met first on June 25, 1981, at which time this
Board was made up of 3.W. Samuels (Vice-Chairman), B.J.
Laing (IYember) and S. Schachter (Member). Upon the opening
of the hearing, Nr. Everett Baker, General Secretary of the
Ontario Liquor Boards Employees' Union, rose to say that the
Union was withdrawing from the discharge case. -3Lr . Xoran,
on behalf of the Employer, said that he objected to the
timeliness of the grievance .against the discharge, and asked
for an immediate ruling from the Board denying the griev-
ance. The Grievor said that he wished to continue on his
own, with counsel, and asked for a new date when his counsel
could appear. The Board then decided that there-were ques-
tions cdncerning the delay in filing the grievance, which
had to be answered before a proper decision could be‘made on
the preliminary object,ion, and the wisest course was to
schedule a further day, at which time the grievor could make
proper <representations through counsel.
Thus, we met again on August 21. Yr. Schachter I
could not continue as Member, and his place was taken by .M,-.
S. Hennessy. The parties had no objection ta this change In
our membership. At the outset of our day on August 21, ?lr.
Baker again appeared to say that the Union had also withdrawn
4.
from the suspension case. So we proceeded with Mr. Gigliozzi
represented by his own counsel. On August 21, we spent the
whole day hearing argument on the Employer's preliminary
objection related to timeliness.
Facts Relating to the Issue of Timeliness
On May 20,-1980, an incident occurred as a result
of which an investigation was made by the Metro Police and
LCBO internal security. On June 23, the Grievor was ar-
rested and charged with a criminal offense. .The next day,
he went to work, but wis told.to go home because he was
suspended as a result of the investigation and arrest. On
June 27, he received a letter advising 'him that he was
suspended indefinitely "for breaches of Board regulations of
which you are aware" (Exhibit 2). On July 3, the Informa-
tion was laid by the Metro.Police (Exhibit 3). On July'4,
the grievor received a letter from Xr. Jennings, Director of
Store\Operations (Exhibit 4):
"This supersedes our letter to you dated 27
June, 1980 and is to inform you that you are s'us-
pended without pay effective June 27, 1980 pending
disposition of the criminal charges which have
bee~n laid against you at which time you will be
advised the, status of your employment."
The Grievor has not worked for the LCBO since he was sent
home on June 24, 1980.
5.
, ’ On July 17, 1980, the grievance concerning the
suspension was filed (Exhibit 5). It is a letter which
appears to have been drafted and typed by the Union and
resulted from discussions between Xr. Baker and the Crie-Jar.
It reads in part:
"In accordance with article 21.4 of the collective
agreement be,tween the LC90 and the Employees '1
Union, I do hereby grieve that contrary to article
3.2, I have been disciplined without just and
sufficient cause.
Be advised that in accordance with article 21.3 of
,the agreement, I have elected to be assisted in '
this grievance by a representative of the Employees'
Union and any action pertaining to this grievance
should involve such a representative.
I further request that a meeting be held between
myself and my representative, and the representa-
tive of the LCBO so that I may have the oppor-
tunity.to explain the events leading up to my
discipline.
Please consider this my authority for a representa-
tive of the Employees' Union to have access to my
personal file and to examine all documents pertinent
to my grievance."
This grievance was not filed within the 14 days contemplated
in Article 21.4 of the Collective Agreement, but XC. Yaker
told the grievor he would try to "squeeze it through". .L?d ,
. ,.
in fact, the Employer made no objection to the timeliness of
this grievance. On July 24, 1980, the Union referred the
grievance for a hearing (Exhibit 6).
At this point, it should be said that the evidence
of Mr. Baker and Mr. MacDougal made it clear that the Union'
and Employer were faced at the time with an overwhelming
number of grievances. As a result of this, much of the
grievance procedure set down in the Collective Agreement was
simply ignored. Article 21.4 contemplates a written reply~
to the grievance within seven days. This was rarely done
and no such reply was ever made to Nr. Gigliozzi. Article
21.5(c) contemplates a written decision from the Chairman of
the LCBO after completion of his investigation. This was
rarely done and no such document was ever given to :?r.
Giglioz.z,i.'
A further point to be'made before we continue with
the chronology of this case is that the Grievor had never
gone through.the grievance procedure before. 1%. Baker
testified that it was his usual practice to advise grievors
that a suspension may be followed by a discharge, and that
the discharge must be separately grieved, but he could not
say for sure whether he told this to Nr. Gigliozzi. The
Grievor testified that Mr. Baker told him to inform the
Union if he received any further communication from the
LCBO. Be was never referred to the Collective Agreement and
never looked at it.
7 :
On Augu.st 12, 980, the Grievor received the
letter of discharge (Exhibit 7). I accept that he informed
, Mr. Baker of this. Two points are significant here. Firstly,
while the second letter of suspension said that the LCBO
would await the disposition of the criminal charges, the
charge had not yet been heard. In fact, it would be with-
drawn on January~6, 1981.' Secondly, the Grievor had not yet
heard anything about his grievance of the suspens\ion. 3e
testified that he thought the Union was taking care of his
problems for him, and all he had to do was inform the Union
of communications he received. In my view, this was a
perfectly reasonable assumption to make. Indeed, had he
known the way the parties had abandoned the grievance ?ro-
cedure set out in the Collective Agreement and substituted a
rough working relationship to attempt to cope with the
deluge of grievances, the Grievor would have been even more
justified in thinking that he should just leave it all to
the Union. But let us proceed.
On August 14, 1980, the Un ion appl ied t.o the
Grievance Settlement Board for a hearing on the susnension
grievance (Exhibit 8). A short while after this, .Xr.
MacDougal (for the Employer) scheduled a meeting with the
Union to deal with a number of grievances, including XL-.
Gigliozzi's suspension grievance. Because the Grievor was
no longer at work, Mr. XacDouyal relied on the Union to
inform Hr. Gigliozzi of this meeting. The Grievor was not
at that meeting and we don't know whether he was even in-
formed of it.
After the criminal charge was withdrawn on Januar;l
6, the Grievor called on Xr. 3aker to say he wanted his job
back. This meeting led to "the discharge grievance", which
was a handwritten letter to the Grievance Settlement 3oard
from the Grievor (Exhibit 1):
"In June of 1980, I was suspended by the LC30
pending criminal proceedings against me. I was
charged with theft under $200.00. I went to trial
with my lawyer on September 26, 1980 but the crown
remanded the date to January 6, 1981. ,On that day
I reappeared and all charges were dismissed. The
Constables said they had nothing on it.
My Union has informed me that my grievance on
.discipline is before your 3oard at present however
the LCBO has dismissed me ‘and I was unaware that I
had to put in a grievance on that within a certain
period. iMy Union has informed me that because of
this technicality they cannot put in a grievance
on my behalf but I could appeal to ypu to have a
hearing established to settle my case.
The LCBO did not wait to find out if I was
innocent. The criminal charges were dismissed
(copy enclosed) and yet I am still dismissed with
no where else to go to have this matter resolved.
Anticipating a favourable reply, I remain:"
i
In these circumstances, Hr. Noran argues that "the
discharge grievance" is out of time and, for that reason,
should be denied.
The Collective Agreement
The Agreement between the L.C.3.0. & L.L.3.0. and
the Ontario Liquor Boards Employees' Union does not provide.
for the formal two stage discharge procedure which is the
practice of the Employer -- a foi-al suspension, followed by
an investigation and finding by a discipline committee, and
then formal discharge.
dures:
Articles 21. and 22 set out the grievance proce--.
*
"ARTICLE XXI
GRIEVANCE PROCEDURE
21.1 Definitions:
(a) 'Union' means the Ontario Liquor Boards
Employees' Union
(b) 'employee representative' means a person who
is the nominee of a person who has a griev-
ance, nominated to act on his/her behalf in
respect of the grievance, and the nominee may
be a representative, of the Union.
(cl 'grievance' means a difference arising from
the interpretation, application, administia-
tion, or alleged contravention of the Fro-
visons of this Agreement.
i . .
.
17..
21.2 An employee, upon his/her request, may
be accompanied by a member of the Union's Griev-
ance Committee when attending an investigati,re '
hearing involving more than one(l) member of
management. The employee shall be made aware of
the reason for the'interview in advance.
21.3(a) A grievor may present his/her griev-
ance personally or may be represented or assisted
by a representative of the Union.
(b) The grievor shall be entitled to examine
documents pertinent to his/her personal grievance.
21.4 A grievor shall sign and present
his/her grievance in writing within fourteen (14)
days of the circumstances giving rise to his/her
gxievance to a person designated by the Chairman
, of the L.C.B.O. or the Chairman of the L.L.B.O.
The grievance shall. specify the clause or clauses
in this Agreement alleged to have been violated.
The designee shall give a written reply to the
grievance to the grievor within seven (7) days of
its receipt.
21.5(a) If the grievor is not satisfied with
the reply received pursuant to the provisi0n.s of
Article 21.4 or if he/she does not receive the
decision within the seven (7) day time limit,
he/she may present his/her grievance in writing /
within seven (7) days .of /
il.
(i) the date he/she received the de-
cision, or
(ii) the date on which the time limit
expired as the case may be,
to the Chairman of the L.C.B.O. or the Chairman of
the L,.L.B.O'.
(b) If the grievor fails to act within the
i time limit set out in the second step the grievance
will'be considered abandoned.
(.y 1 The.Chairman of the L.C.S.O. or the
Chairman of the L.L.B.0. shall complete an in-
vestigation into the grievance within fourteen
(14) days of the date of its receipt by him and
shall give the grievor his decision in writing
within seven (7) days of the completion of the
investigation.
(d) Where the grievor has not had an oppor-
tunity to be heard by the designee of the CSairman
of the L.C.B.O. or the designee of the Chairman of ,
the L.L.B.O. under Article 21.4 the Chairman of
the L.C.B.O. or the Chairman of the ~L.L.B.0. shall
hold a hearing and shall give the grievor an
opportunity to be heard in an investigation pursu-
ant to the provisions of Article 21.5(a) (ii).
(e) Failing settlement of the employee's
grievance, the grievance may be submitted to the
Crown Employees Grievance Settlement Board within
seven (7) working days following receipt of the
final decision under this provision.
12.
21.6 The Union shall have the right to lodge
a grievance based on a difference arising directly
with the Boards. However, such a grievance shall
not include any matter upon which an employee is
personally entitled to grieve. Such grievance
shall first be presented, in writing, to the
Boards, within fourteen (14) days of the dir-
cumstances giving rise to the grievance and a
meeting will be held within five. (5) working days
between representatives of the Union and the
Boards-and the grievance shall be answered, in
writing, by the Boards within five (5) working
days of such meeting, following which or failing
settlement of the grievance, the Union may submit
the grievan'ce to the Crown Employees Grievance
Settlement Bgard within a further period of ten
(10) working days. i
21.7 The Boards shall have the right to
lodge a grievance as defined above or relating to
the conduct of the Union or any officer or repre-
sentative of the Union or the conduct of the
employee. Such grievance shall first be pre- ,
sented, in writing, to the Union within fourteen
(14) days of the circumstances giving rise to the \
grievance, and a meeting will be held within five
(5) working days between representatives of the
Union and the Boards and the grievance shall be
answered in writing, by the Union within five (5)
21.9. At any stage of the Grievance Proce-
dure,' the time limits imposed upon either party
13.
working days of such meeting, following which or
failing settlement of the grievance, the Boards
may submit the grievance to the Crown Employees
Grievance Settlement Board within a further period
of ten 110) working days.
i. 21.8(a) No grievance may be submitted to the
Crown Employees Grievance Settlement Board which
has not been properly carried through the Grievance
Procedure.
(b) The Crown Employees Grievance Settiement
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.
(c) The determination of a grievance by the
Crown Employees Grievance Settlement Board pursu-
ant to the terms of this Agreement is final and
binding upon the parties and employees covered by ,
this Agreement.
may be extended,-in writing, by mutual agreement.
14.
ARTICLE XXII
DISCHARGE CASES
~22.1 A claim by an employee who has com-
pleted,his/her probationary period that he/she has
been unjustly discharged shall be treated as a
grievance if a written statement of such grievance
is filed by the employee commencing at the second
step of the Grievance Procedure (Article 21.5(a))
with the Chairman of the L.C.B.O..or the Chai:man
of the L.L.B.O. within ten (10) days after the
employee ceases to block.
'22.2 Such special grievance may be settled
I
under the Grievance Procedure by:
(:a) confirming the Board's action in dismissing
the employee;
(b) reinstating the employee with full compensa-
tion for time lost; or
Cc) by any other arrangement which may be deemed
just in the opinion of the conferring parties
of the Crown Employees Grievance Settlement
Board."
I have already commented on the failure of the
parties to the agreement to comply with several significant,
steps in the procedure. NOW, it is necessary to make some
comment on the language itself.
Firstly, one sees that Article 21 makes clear a
difference in the effect of a failure to observe time limits
Article 21.5(b) speaks of the abandonment of the grievance
if the time limit set out in the second step is not ob-
served. Long-standing jurisprudence indicates that this
language usually shows that the time limit is mandatory and
not merely directory. This attention to a distinction in
the agreement, seems to indicate that the other time limits
in Article 21 are only directory. Indeed, the mandatory
nature of the time limit in the second step provided for in
Article 21.5(a) makes good sense. Sere the grievance is in
process, a written reply has been received by the grievor,
and he should have to make up his mind about proceeding or
not with some dispatch. Thus, I conclude that there are two
kinds of time limit in Article 21. One is mandatory, as
indicated by Article 21.5(b), the rest are directory.
Secondly, the relationship between Article 21 and
22 is not immediately clear. Does Article 22 cover all -
discharge grievances? Article 22.1 is a very curious pro- ,
vision. It says that a "claim" by a discharged employee
"shall be treated as a grievance if . ..'I. It does not sav that
all discharge grievances are governed by the provision.
Rather, it says that certain "claims" shall be treated as
grievances if they meet certain requirements. This is
confirmed in Article 22.2 which speaks of "such special
grievance". While it may-be the case that the parties -
intended to establish one grievance procedure for discharge
i r
cases and one for, other grievances, in my view, the language
of the Collective Agreement, which must govern, does not do \-
this. #Instead, it establishes a different two grievance
procedures -- a general grievance procedure and an expedited
procedures for some discharges where a claim is made in
writing at the outset directly to the Chairman. This view
is confirmed by the definition of "grievance" in Article
21.1(c), which makes it clear that Article 21 applies to all -
grievances, including one related to discharge.
Argument of the Parties
1. For the Employer
lows:
IvlI. Moran makes his case for untimeliness as fol-
a. Article 121.5(b) makes the time limit on the
Grievor in the second step mandatory. I
agree with him. ,
b. Article 22.1 'makes clear that a discharge
grievance commences at the second step in
Article 21, therefore the initial lo-day
limit in Article 22.1 is mandatory. I might
agree with him here, but only for those
"claims" which satisfy the conditions set out
in Article 22.1. The "discharge grievance"
in our case is not such a "claim" and, there-
fore, does not fall within Article 22.1.
,
17.
C.
There is no statutory Fewer to waive this
mandatory time limit:
(i) Section 37(5) (a) of The Labour Relations
Gr
does not apply because the Act does not
provide expressly for its application to
the Crown. Without such express applica-
tion, hit cannot apply to the Crown (sec-
tion 11 of The Interpretation Act,
(ii), Sections 17(2) and 18(l) of The Crown
Emoloyees Collective Bargaining Act,
do not give a statutory right to come to -
the Grievance Settlement Board, which
right could circumvent the tiime limits
in the Collective Agreement. In Keeling
(45/78), this Board ruled that Sections
17(2) and 18(l) give a statutory right
to come tom the Board. Upon an applica-
tion for judicial review, the Ontario
Divisional Court upheld the award,
deciding that it was not patently unrea- ,
sonable, and that only if it was patently
unreasonable would the Court overturn
the award (unreported.). This is not to
say that the Court found the award all-
but-totally unreasonable. -Xy reading of
la.
the decision does not disclose how the
Court would have decided if it had to
look at the issue de novo. The Di-
visional Court's decision was then
upheld by the Ontario Court of Appeal
(unreported), for the same reasons.
Keeling has been reaffixed in Clenents
(112/80) and Williamson (107/80). in
the latter case, Vice-Chairman Carter
commented (at page 7) :
"A reading of the reasons given in
Keeling can leave no doubt as to
the fact that this Board has al-
ready given careful and thorouqh
consideration to this difficult
issue, and in these circumstances
it.would be inappropriate for this
panel to set sail on a ccmpletely
different tack."
I have already said that, in my view, we
are not faced with a mandatory tise
limit in this case. However, if I had
to decide upon this issue. raised by ?I=.
, Moran, I couldn't find a better way of
concluding than did Mr. Carter. Keelinc
is too firmly in this aoard's juris?ru-
dence to be unseated by another panel.
, 9.
d. In any event, if the time limit here is not
mandatory, Sir. Giqliozzi's delay is too long
and it would Prejudice the Employer to hear
the grievance. I shall deal with this arqu-
ment in a moment.
2. For the Grievor
Mr. Rosen argued that all we have here.is one
grievance arising out of discipline in response to one inci-
dent. The suspension grievance referred to "discipline",
and there should be no fine distinction between the two ~
stages of discipline imposed here. Indeed, he suggested
that it was unnecessary to file two grievances in cases such
as this,, where an initial suspension for an indefinite
period turns into a discharge. The one grievance makes
clear to the Employer that the grievor complains aqainst the
discipline imposed on him as a result of an incident.
In the alternative, insofar as the Grievor's delay
in filing. "the discharge grievance" is concerned, it is
excusable. The suspension grievance is still being'pro-
_ cessed and the Employer's case is the same in both, there-
, fore there is no prejudice to the Employer. Furthermore,
the Grievor rightly expected that the Union was protectinq
his interests.
Conclusion
I have no hesitation in denyinq the preliminary
objection for a number of reasons.
Firstly, I have already said that, in my view, no
mandatory time limit binds the Grievor here. This is so
because of the language o- f the Collective Agreement itself.
In the alte.rnative, I would be willing to accept the Keeling
decision and allow the Grievor to ccntinue under The Crown
Employees Collective Bargaining Act.
.
Secondly, in my view, not only is the Grievor's
delay excusable, it would be patently unfair to the GiiPVOK
to hold him to a contract time limit in these circumstances
when the Empioyer and Linion did not abide by the terms of
the grievance procedure, the Grievor has never received the
written replies he is entitled to on his suspension qriev-
ante, the Grievor had good reason to rely on the Union to
represent him, .it was reasonable for him to expect that one
grievance would suffice to indicate he grieved discipline
arising out of the May 20 incident, and he acted with rea-
sonable dispatch followinq each "event" he experienced.
Thirdly, I see no prejudice whatsoever to the Em-
ployer in permitting the Grievor to proceed. The same eqi-
dence and argument applies to the suspension grievance as to
the discharge. It is only a matter of argument as to whethe~r
21. .
the facts justify a discharge as well as a suspension. The
Employer's case is ready. No further evidence or E)repara-
tion. whatsoever is necessa-y to argue the discharge as well
as the suspension.
Fourthly, while I am not prepared to accept Xx.
Rosen's suggestion that no grievance of the discharge was
even necessary once the suspension was grieved, I must com-
ment that the suggestion seems very compelling. The Grievor
had to grieve the suspension. If he grieved only the dis-
charge and succeeded, he might be reinstated only as of the
date of discharge and might lose the right to reinstatement
as of the date of suspension. Zut having grieved the inde-
finite suspension, I don't see the need to grieve the dis-
charge. It seems to me that we are faced here with a two-
stage disciplinary process in response to one incident, with
one final disciplinary decision‘by the Employer. If the
grievor says at the outset "I don't think I should be made
to cease work as a result of the incident", he is saying "I
grieve the suspension and I grieve a discharge, if that is
the final result of the two-stage disciplinary process".
The disciplinary process is one continuum. This is not the
case of a premature grievance before discipline is imposed.
Once the suspension'comes, the discipline has been imposed
and the discharge is simply the conclusibn to the suspension
itself.
22.
We shall resume our hearing on September 1 to hear
evidence concerning the
discharge.
justification for the suspension and
Done at Toronto, Ontario, this 1st c?ay of September, 1981
1~. c \..I~ I.
J.W. Samuels, Vice-Chairman
3
s. R.’ Hf?IlIlC?SSY Member
H. J. Laing Nember
I. dissent wits respec't to
the interpretation of the
Collective Agreement. but
agree in the continuation
of the hearing.
2:.
LIST OF EXHIBITS
1.
2.
3,
4.
5.
6.
7.
a.
9.
Letter from grievor to Grievance Settlement Board,
February 1, 1981
Letter of Suspension, June 27, 1980
Information, July 3, 1980
Reconfirmation of Suspension, July 4, 1980
Grievance of Suspension, July 17, 1980 " ,
Referral of Grievance, July 24, 1980
Discharge Letter, August 12, i980
Referral to Grievance Settlement Board, August 14, 1980
Letter, Grievance Settlement Board to LCBO; February
11. 1981