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HomeMy WebLinkAbout1982-0372.Barnard.82-11-29IELtPHONt: ‘m/598- OS88 327,'82 Interim IN THE MATTER CF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAIMING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (D. G. Barnard) Grievor -And - The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer Before: J. W. Samuels Vice Chairman T. Traves Member M. Gibb Member For the Grievor: L. Stevens Grievance/Classification Officer Ontario Public Service Employees Union For the Employer: T. W. Wheeler Classification and Pav Administration Section Personnel Branch - Ministry of Transportation and Communications Hearing: November 17, 1982 ;-A - 2 - The grievor is employed by the Ministry of Transportation and Communications as a Safety Officer 2 in Kenora. He claims that he is improperly classified and should be a “Safety Instructional Officer 3”. At our hearing on November 17, the parties agreed (Exhibit 11) that we would deal only with the preliminary objection by the Ministry that this Board is not properly seized of the matter for two reasons-- a. because the grievor failed to comply with the time limits in the Collective Agreement; and b. because the grievance was withdrawn, and the grievor is estopped from carrying on with the matter. The facts were not in dispute, concerning this preliminary objection. The grievor filed his first grievance on February 4, 1982 (Exhibit 1). The Ministry’s first response came on February 19, when Mr. Gaebel, the griever’s immediate supervisor, wrote to say that he would review the grievance and would make his reply by March 31, 1982 (Exhibit 2). Unknown to the grievor, this “review” “involved a reevaluation of the griever’s Position Specification. On March 31, the grievor and Mr. Gaebel were called into the office of Mr. S. Barty, Head of the Regional Personnel Office in the Northwestern Region. When Mr. Barty learned that the grievor had not yet seen his revised Position Specification, he made a copy for the grievor and the meeting adjourned on the understanding that the grievor would review the document anb the three people would meet the next morning to discuss it. The next morning, the grievor - 3 - reported that he still revised Position Speci had not had an opportunity to read the fication. The meeting adjourned, and Mr. Gaebel wrote to the grievor that day to say that the grievance was denied (Exhibit 3). The grievor told his Union Representative to proceed further with the matter, but this representative forgot about it. Later, when the griever asked his representative what had happened, the man staid it had slipped his mind, but they would file another grievance. Which they did on May 19, 1982 (Exhibit 4) It has been the Ministry’s consistent view since the filing of this second grievance that it is the same grievance as the first one, which was withdrawn, and therefore the grievance is out of time (Exhibits 5, 8 and 9). On June 22, 1982, before receiving the reply of the Deputy Minister to the second stage of the second grievance, the Union wrote to this Board for a hearing (Exhibit 7). The essence of the Ministry’s position is that Article 27.3.2 of the Collective Agreement provides that the grievance must be submitted to the Deputy Minister at the second stage seven days after the reply to Stage One.. The reply here came on April 1, and the grievor did not submit the grievance to the Deputy Minister within the seven days. Article 27.9 provides that failure to meet a time limit means that the grievance is deemed to be withdrawn. Thus the time limit is mandatory and the grievance has been withdrawn. Having been withdrawn, the grievance cannot be resubmitted, because the grievor is estopped from doing this. We accept this line of argument in full. T> -” - 4 - However, the Collective Agreement is not the only source of the griever's right to come to this Board. Section 18(2) of the Crown Employees Collective Bargaining Act, R.S.O. 1980, c. 108, provides: In addition to any other rights of grievance under a collective agreement, an employee claiminq, (a,~ that his position has been improperly classified; . . . . . . . . . . . may process such matter in accordance with the grievance procedure provided in the collective agreement, and failing final determination under such procedure the matter may be processed in accordance.with the procedure for final determination appli- cable under section 19. (emphasis added) Then, section 19 goes on to deal with arbitration before this Board. In Keeling, GSB 45/78, this Board reviewed the meaning of these provisions at length. In short, it was held that the procedure set cut in the Act is clearly in addition to any procedure in the Collective Agreement. Hence, an employee who missed a time limit under the Agreement, could still succeed in getting to arbitration under the Act. The decision was appealed to the Supreme Court of Ontario, Divisional Court, and was upheld in a decision released on April 14, 1980. The Court held that it should confine itself to deciding whether or not the award was patently unreasonable, and the award was not patently unreasonable. In our view, the award was correct. Section 18(2) provides an alternative source of the right :c go to arbitration for three types of matters--imbroper classifi- c, --& - 5 - cation, appraisal contrary to governing principles and standards, and di,scipline nor discharge without just cause. The Act provides no time limitation. If a grievor is time-barred from proceeding under the Collective Agreement, he may proceed under the Act, if his case involves a matter covered by section l&?(2). The reason for this legislative provision seems to be clear--to ensure a proper resolution of the real differencesbetweenthe parties on these fundamental issues. In our case, the rationale for this legislation is ful- filled. The griever’s difference with the Ministry is on-going. It makes good sense for it to be dealt with once and for all by this Board. As well, there are other employees who will be affected by our decision, and any one of them might grieve the’ classification. Indeed, while it is not a reason for our decision, ‘the Union did indicate that there were a number of others who wanted to grieve (for example, Exhibit 10). In conclusion, we find that the grievance is properly before us, and we will set a date to hear evidence and argument on the substance. Done at London, Ontario, this X. Gibb, Member 1. ‘2. 3. 4. 5. 6. 7. 8. 9. 10. 11. - 6 - LIST OF EXHIHITS Grievance Form, February 4, 1982 Reply, February 19, 1982 Final reply, April 1, 1982 Grievance Form, May 19, 1982 (the one submitted to this Board) Reply, June 4 , 1982 Stage Two Letter from J. Spalding, June 4, 1982 Union Staff Representative Application by the Union to this Board, June 22, 1982 Stage Two reply from the Deputy Minister, June 28, 1982 Letter to this Board re preliminary objection, July 5, 1982 Letter from Mr. Pogue, undated Letter re our hearing, November 8, 1982