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HomeMy WebLinkAbout1983-0742.Isaac and MacIsaac.84-07-17Between: Before: 742/S3 24184 IN TIIE UTTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING.ACT For the Grievor: THE GRIEVANCE SETTLEMENT BOARD OPSEU (Joyce V. Isaac and L. Gaynor MacIsaac) Grievors - And - The Crown in Right of Ontario (Ministry of the Attorney General) Employer R.L. Kennedy Vice Chairman T. Traves Member E.R. O'Kelly Member B. Hanson, Counsel Cavalluzzo, Hayes k Lennon Barristers & Solicitors For the Employer: J. Zarudny, Counsels Crown Law Office Civil Ministry of the Attorney General Hearing: June 6, 1954 -2- DECISION This matter comes before the Board on an Agreed Statement of Facts in the following terms: 1.. On August 18, 1983, the Civil Service Commission of Ontario posted the position of senior accounts payable clerk, clerk 4 general (competition AG/39) in the Ministry of the Attorney General. 2. The grievors, Joyce V. Isaac and L. Gaynor MacIsaac, applied for the position prior to the closing date August 31, 1983 and were each given interviews therefor, on September 16, 1983. 3. By letter dated October 28, 1983 the grievors were each advised that their applications for the position of senior accounts payable clerk, had been denied. 4. Ms. Isaac submitted a grievance in writing on November 3, 1983 claiming the position of Senior Accounts Payable Clerk, Clerk 4. Ms. MacIsaac submitted an identical grievance on the same date. Both grievances were submitted within the time periods as required pursuant to Article 27.2.2. of the collective agreement. 5. By letter dated November 14, 1983 and delivered by hand 'each grievor was advised by Mr. W. McKenzie (Accounts Payable Supervisor) that their grievance was denied. 6. By letter dated November 24, 1983, Ms. MacIsaac referred both grievances to Mr. A. Campbell, Deputy Minister, Ministry of the Attorney General, in accordance with stage two of the grievance procedure as set out in Article 27.3.2 of the.collective agreement. 7. By letter dated December 2, 1983, Mr. P. W. Clendinneng (Director, Ministry of the Attorney General), advised Ms. MacIsaac as follows: Article 27.3.2 of the Collective Agreement stipulates that the grievance must be submitted at stage two within seven days of the stage one reply. As your grievance at ?- . -3- stage two is outside the time limits stipulated in the Collective Agreement, I must advise that the grievance is unacceptable for want of time- liness. Accordingly no further consideration will be given to this grievance. 8. The union does not dispute that the grievances were not filed in compliance with the timeliness provisions of Art-icle 27.3.2. On the union's interpretation of that article and pursuant to Article 27.12, the grievances were fi.led one day late. 9. The grievances were filed late solely because of the inexperience of the union's local executive. The grievances at issue in this case were the first to be processed by that executive. There were additional facts agreed to by counsel at the Hearing, as follows: 1. With reference to Paragraph 6 in the Agreed Statement of Fact, the letters dated November 24th were, in fact, received by the Employer on November 29th and December 1st respectively in the offi-ce of the Deputy Minister. 2. With reference to Paragraph 8 of the Agreed Statement of Facts, there is a difference between the parties as to the interpretation of that article. The letters in question were sent by mail to the Employer, and it is the Employer's positionthat it is the date of receipt of the letter that governs. Accordingly, it is the Employer's position that the grievances were more than one day late. 3. It was agreed that the two Grievors work in the same building wherein is located the office,of the Deputy Minister. 4. The successful applicant for the position had been advised as to the time and place of Hearing. Counsel for the Employer advised us that she was unable to =_ I- . -4- attend the Hearing because she was absent on bereavement leave. 5. By letter dated January 3, 1984,'the Employer advised the Grievors that the grievances had not been processed in a timely manner and were, therefore, deemed to have been withdrawn by virtue, of the provisions of Article 27.11 of the Collective _* Agreement between the parties. 6. The parties agreed that the grievances in question were not continuing grievances. It was Mr. Zarudny's argument that once three things were established, the grievances became legally inarbitrable. Firstly, Article 27.11 of the Collective Agreement provides as follows: Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time Drescribed it shall be deemed to have been withdrawn. ,its are mandatory, This section makes it clear that the time lim and this has been confirmed in numerous prior Board. Reference may be made to Parr 317/82 decisions of this (Swan), Goheen 321/82 (Verity), Lam 377/83 (Jolliffe), and OPSEU (Union Grievance) 676/81 (Teplitsky). Secondly, Article 27.3.2 requires that the matter proceed to Stage Two within seven days of the Stage One'reply. On the facts agreed to between the parties, that time period was exceeded, irrespective of whether it is the Union or the Employer position on the meaning of that i -5 - Article that is adopted. Thirdly, it is agreed that these grievances are not continuing grievances. For the Union, Mr. Hanson conceded that the weight of authority-was to the effect that the time limits were mandatory and that the grievances were not continuing grievances. However, he argued that a wrongful denial of a promotion constituted an appraisal within the language of Section 18 (2) (b) of the Crown, Employees Collective Bargaining. Act, R.S;O. 1980 c. 108 (The Act). AS such, the right to grieve was a - statutory right of each employee which the parties could not limit by contractual means, and which right the Grievors could pursue irrespective of time limit constraints set out in the Collective Agreement. The principal authorities relied upon in support of that argument were Re Ontario Public Service Employees Union and the Crown in Right of Ontario et al (1983) 44 O.R. (2d) 51 (Div. Ct.) and Keelinq 45/78 (Prichard), affirmed (1980) 30 O.R. (2d) 662 (Div. Ct.). In the alternative Mr. Hanson relied on Section 55 of the Act which states as follows: No proceedings under this Act are invalid by reason of any defect of form or any technical irregularity and no such proceedings shall be quashed or set aside if no substantial wrong or miscarriage of justice has occurred. -6- He argued that under that provision the Grievance Settlement Board could, in appropriate circumstances, relieve against missed time limits. On >is argument that the denial of the job constituted an appraisal, Mr. Hanson argued that an appraisal is not confined to any formal process applied on regular occasions. It can include special purpose appraisals for such matters as promotion and discipline, and reference was made to Scott 23/76 (Swan) and Farley 581/82 (Roberts). Mr. Hanson argued that a promotion competition in the context of a relative ability clause such as exists in the Collective Agreement between these parties requires the Employer to undertake a relative. assessment of suitability for the position as between the candidates, and it was the Union position that that assessmentconstituted a special purpose appraisal within the language of Section 18 (2) (b) of the Act. Mr. Hanson conceded that the decision of this Board in Lariviere 73/76 (Swan) was contrary to his position, but he argued that Lariviere did not stand for the proposition that a relative assessment did not constitute an appraisal. Rather he stated all that Lariviere stood for was that a complaint on relative assessment did not come within the As. He argued that we should not follow the decision in Lariviere because it was discriminatory and unfair in denying an employee who was unsuccessful on a job - I - competition his rights under Section 18 (2) (b). He further argued that the Lariviere decision was contrary to Keeling 45/78 (Prichard) and was further contrary to principles of construction with respect to Sections 18 (2) (b) of the Act in that in substance the decision denied rights under the Act to a relative assessment as opposed to an absolute assessment situation. Lastly, with respect to Lariviere, Mr. Hanson argued that the purpose of Section 18 (2) (b) of the Act is to permit an employee to grieve an incorrect or unreasonable appraisal so as to preclude prejudice to the employee by its subsequent use. Lariviere seems in substance to create a distinction between the appraisal itself and its subsequent use and seems to be saying that under 18 (2) (b) you can grieve an appraisal but not its subsequent use in a competition. In the context of special purpose appraisals the use is part and parcel of the appraisal, and to deny access to Section 18 (2) (b) in that context could not have been intended by the legislature. With reference to his argument pursuant to Section 55 of the Act, it was Mr. Hanson's position that no inference should be drawn from the fact that the Act was not amended in the same way that the Labour Relations Act was amended to include therein provisions similar to the present Section 44 (6) giving arbitrators a power to extend the time limits within the -8- grievance procedure. He further argued that decisions such as Union Carbide Canada Ltd. v. Weiler (1968) 70 D.L.R. (2d) 333 (S.C.C.) and General Truck Drivers Union, Local 938 v. Hoar Transport Co. Ltd. (1969) 4 D.L.R. (.3d) 149 (S.C.C.) are not binding qn the Grievance Settlement Board. For support of that argument he referred to Keeling 45/78 (Prichard) and the analysis in that decision commencing at Page 24. In addition to the points raised by Vice-Chairman Prichard, it was Mr. Hanson's position that there were also good policy reasons in the industrial relations context for finding that this Board had jurisdiction to deal with missed time limits. For authority on that point he referred to Re Communications Union Canada and Bell Canada (1976) 13 O.R. (2d) 570 (Div. Ct.). It was the Union argument that Section 55. applied to the circumstances before us on the basis that we were involved in a proceeding under the As, ~the exceeding of the time limit was a technical irregularity, and there resulted no substantial wrong. By way of authority that we were dealing with a proceeding under the Act, counsel relied on the decision of Professor Weiler in Re Union Carbide Canada Ltd. (1967) 18 L.A.C. 74, that was considered by the Supreme Court of Canada in the Union Carbide decision previously referred to. Reference was also made to a decision of the Ontario Labour - 9 - Relations Board in Re Bedard Girard Ontario, I19811 O.L.R.B. 'Reports 1338 (Howe). On the argument that what had happened constituted a technical irregularity, reliance~ was again placed on the Union Carbide arbitration decision and upon the Bell Canada decision previously referred to. On the aspect of substantial harm, he argued that it was self-evident that no harm could flow from the two or three days delay that had occurred in these circumstances. On the aspect of prejudice, Mr. Hanson also referred to Re Toronto Western Hospital (1983) 9 L.A.C. (3d) 91 (Teplitsky). In his reply argument it was the position of Mr. Zarudny .that the only case directly on point and dealing with the issues before this Board was the Lariviere decision and that its reasoning was conclusive of the issue. He conceded that once a matter came within Section 18 (2) (b) of the Act, there existed a right to grieve irrespective of time limits, but this Board in Lariviere has held specifically that in the context of a competition grievance, the relative assessment of suitability is not within Section 18 (2) (b) of the As, and that there is no jurisdiction under Section 55 to relieve against missed time limits. It was Mr. Zarudny's opinion that to fall within Section 18 (2) (b) of the As, an appraisal had to be in relation to the employee's own job and not in relation to some other job,which he was not performing. He stated that - 10 - the Union position on Section 55 required the Board to ignore two prior decisions of the Supreme Court of Canada, and it was his view that they correctly set out the state of the law. On the desirability of this Board following its prior decisions unless persuaded that the prior decision is manifestly wrong, reference was made to Speedie and Jones 355/82 (McLaren). With respect to the'union's submissions, counsel for the Employer pointed out that all of the Union cases were in the areas of classification or disciplinary grievances, wherein under the Act the Grievor had the specific right to go to the Grievance Settlement Board. He pointed out that the Union had come up with no case wherein the parties were not in agreement that they were dealing with appraisal issues where the case had gone to the Grievance Settlement Board notwithstanding that the time limits had been exceeded. With reference to the Scott case, Mr. Zarudny pointed out that the parties had agreed in , that case that they were dealing with an appraisal, and it in no sense altered the decision in Lariviere. Similarly with Farley, it was again a case wherein the parties agreed they were dealing with an appraisal. Reference was made to Zuibrycki 425/81 (Barton), which case had been distinguished by Union counsel, as supporting the proposition that an appraisal was limited for the purposes of Section 18 (2) (b) to - 11 - situations of a formal process of appraisal common to all employees. With reference to Mr. Hanson's comments relating to Lariviere with respect to the distinction between absolute and relative assessments, it was Mr. Zarudny's position that that distinction was not the one made by Vice-Chairman Swan in that case. Rather, Mr. Zarudny stated the principle of Lariviere as being that Section 18 (2) (b) has no application in a competition situation wherein the employee has a right to challenge the competition appraisal, but that right exists under the Collective Agreement and has to be done within the time limits. He argued that there was no unfairness or injustice in requiring the employee to go under the Collective Agreement, and it is most certainly not a situation in which the employee is left without a remedy. With respect to the Keeling decision, Mr. Zarudny argued that it held simply that once within the provisions of Section 18 (2) (b) of the Act, there was a right in the employee to go to arbitration, and with that he did not quarrel. The case contributes nothing, however, on the main issue of whether or not there exists an appraisal such as to bring the matter within Section 18 (2) (b) and further, the comments in that case with respect to the Section 55 argument are dicta only, I^ .T. , - 12 - :: and on Page 22, the decision specifically stated that-the issue had not been canvassed fully before the Board. The Lariviere and OPSEU Union grievance cases previously cited were of much more direct relevance. With reference to the Section 55 argument, it was Mr. Zarudny's position that the Grievance Settlement Board had no inherent powers to amend, modify or ignore the specific provisions of the Collective Agreement. There was no authority to rectify the Collective Agreement or ~to give effect to some concept of industrial relations principle or to reflect the real intentions of the parties. He argued that this issue had been settled before the Grievance Settlement Board in Lariviere and Lam and that the Supreme Court of Canada decisions in Hoar Transport and Union Carbide also~established a lack of jurisdiction to act in the manner urged by the Union. He argued that the comments in Keeling on the jurisdiction to be derived from Section 55 constituted only dicta, and they ought not to be followed as there was no substantive difference between the status and jurisdiction of a statutory board such as the Grievance Settlement Board and the ad hoc arbitration boards referred to in the Hoar Transport and Union Carbide decisions. With reference to the third comment in Keeling dealing with technical irregularities, Mr. Zarudny pointed out that the decision in Re Blouin Drywall Contractors Ltd. (1976) - 13 - 57 D.L.R. (3d) 199 (ant. C. A.) that was relied upon in Keeling dealt only with the interpretation of grievances and not with the interpretation of the Collective Agreement itself. It was argued that Blouin Drywall does not suggest that you can ignore the clear meaning of a statute or the Collective Agreement in : the context of a technical irregularity. With respect to costs, each party also made submissions to this Board. It was the position of the Employer that the Union had taken a long shot, and that they knew well in advance all of the arguments which would be made on the hearing. In essence, they sought to review the Lariviere and the Lam decisions and to ignore Supreme Court authority, and that given the improbability of success, the Union should pay costs with respect to the hearing. For the Union, it was argued firstly that absent any express Collective Agreement provision this Board had no jurisdiction to award costs. Secondly, even if the Board had jurisdiction, it was the position of Union counsel that costs would not be appropriate in view of the conflicting decisions of the Board that existed represented by Lariviere and Keeling. In these circumstances, it was argued that the matter was most appropriately put to a panel of this Board for resolution. - 14 - The issues and arguments have been very competently set out to us by counsel for the parties, and .we are clearly of the view that we prefer the position taken by counsel for the Employer. The prior decisions in Lariviere and Lam are - directly*bn point and applicable to the issues before us, and we are satisfied that the reasoning in those decisions and the scope of jurisdiction of this Board which they have defined are binding upon us, both by way of legal precedent and by the correctness of their analysis. The substance of the grievance which is before us relates to challenging, in the context of a job competition, the selection that was made by the Employer. It is true that that selection process involves an assessment of the competing candidates, but it is our view that an appraisal, to fall within the principles of Section 18 (2) (b) of the A&, involves an appraisal of the employee in the performance of his existing job with a view either to constitute an ongoing record of his performance in that job or to support some particular action or sanction with respect to that job. In the context of a job competition and an employer selection in that competition, however, we are outside of the concept of an appraisal within Section 18 (2) (b) of the Act, and the right to challenge the Employer's selection is found, not within the statute, but within the language of the Collective Agreement. We see nothing inherently discriminatory - 15 - or prejudicial in that fact, as it in no sense creates a situation where an employee is without a remedy. If he feels that the Employer's assessment in conjunction with that job competition has been incorrect, he has full and adequate redress under the provisions of the Collective Agreement, but in order to seek that redress, he must comply with the specific terms of that Collective Agreement. With specific reference to the Union argument relating to our jurisdiction under Section 55, we are not inclined to ignore the jurisprudence that is reflected in the Union Carbide and Hoar Transport decisions. The section of the Labour Relations Act referred to in those decisions is analogous in all respects to the provisions of Section 55, and we do not consider that we derive jurisdiction to relieve against the time limits of the grievance procedure from that section. In the result, it is our view that these grievances must be dismissed on the basis'that they have not been processed within the time limits of the Collective Agreement and therefore by virtue of the provisions of Section 27.11 are deemed to have been withdrawn. With respect to costs, we do not think that this is an appropriate situation for any award as to costs. We were - 16 - directed to no provision of the Collective Agreement conferring upon us any such authority, and we are aware of no inherent jurisdiction to deal with costs of a hearing. There are some instances where in the context of an adjournment arbitrators have compensated one party for expenses thrown away where the hearing has proved abortive through the actions of the other Party, and indeed there is some language in support of such a practice in the decision of the Divisional Court of Ontario with respect to the Taffinder grievance between the same parties released April 13, 1984. A copy of that decision was filed by counsel for the Employer :at the Hearing. We are aware of no authority or basis for taking jurisdiction to award costs, however, in a situation where the matter has proceeded and been argued before the Grievance Settlement Board. In any event, and even if we should consider that we have jurisdiction, we would again not be inclined to award costs. We do not consider that the a‘r&m&nts which were raised before us were in any sense frivolous or vexatious, and we think the matter in its entirety was quite properly brought before this Board. - 17 - DATED at Toronto, Ontario this 17th day of July, 1954. - ~l+q 7-z* T. Traves Member ------7 - E.R. O'Kelly tiember