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HomeMy WebLinkAbout1985-0960.Jankovics.87-02-20BETUREN: IN ME HATTER OF AN ARBITRATION Under TRE CROWN ElIDLOTEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLENENT BOARD OPSEU (Joseph Jankcvics) - And - The Crown in Right of Ontario (Ministry of the Solicitor General) BEFORE: R.L. Verity, Q.C., Vice-Chairman I. Freedman, Member D.B. Middleton, MembeC FOR RIE GRIEVOR: N.A. Luczay O.P.S.E.U. Grievance Classification Officer FOR TRR EMPLOYER: M. Hilich Staff Relations Officer Staff Relations Division Human Resources Secretariat Management Board of Cabinet Griever Respondent HEARING DATE: tune 23, 1907 .., -2 - DScISION In this matter, the sole issue for determination is the preliminary objection to arbitrability raised by the Employer. Joseph Jankovics is employed by the Ministry of the Solicitor General as a Patrolman in the classification of Security Officer 2. As such, he is a civil servant governed by the provision of the Crown f Employees Collective Bargaining Act. On September 16, 1985, Mr. Jankovics filed a Grievance which alleged that "the Ministry... failed to provide me with employment for the period December 1982 to June 20, 1984". The settlement requested was compensation for wages and lost benefits. The preliminary objection is to the effect that the Grievance was filed well beyond the time limits stipulated in Article 27 of the Collective Agreement. (. The material parts of Article 27 are as follows: 27.1 It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable. -3 - 27.2.1 An employee who believes he has a complaint or a difference shall first discuss the complaint or difference with his supervisor within twenty (20) days of first becoming aware of the complaint or difference. 27.2.2 If any complaint or difference is not satisfactorily settled by the Supervisor within seven (7) days of the discussion, it may be processed within an additional ten (10) days in the following manner: STAGE ONE 27.3.1 The employee may file a grievance in writing with his supervisor. The supervisor shall give the Grieor his decision in writing within seven (7) days of the submission of the grievance. ~27.11 Where a grievance is not processed within the time allowed or has not been processed by the employee or the union within the time prescribed it shall be deemed to have been withdrawn. 27.13 The time limits contained in this Article may be extended by agreement of the parties in writing. 27.14 The Grievance Settlement Board, shall have no jurisdiction to alter, change, amend nor enlarge any provision of the Collective Agreement. (. The following agreed Statement of Facts was drafted by the Parties and submitted on the preliminary issue: 1. Mr. Jankovics is employed as a Security Officer 2 with the Ministry of the Solicitor General. 2. His continuous service date is May 11; 1977. -4 - On July 23, 1978, he re-injured his right leg and was off work intermittently until June 22, 1980. Mr. Jankovics was off work with the injury from June 22, 1980 until June 20, 1984 when he returned to work as a Security Officer. On September 9, 1981, Mr. Jankovics was returned to work for 8 weeks to assess his ability to work under the Rehabilitation Program of the Worker’s Compansation Board. He was found unfit to work as a Security Officer and went off on WCB again. At the employer's request, Mr. Jankovics underwent a medical examination on September 30, 1982 at the Employee Health Service. The diagnosis at the time was that Mr. Jankovics was permanently unemployable as a Security Officer. On December 13, 1982, Rr. Jankovics presented a medical certificate from his doctor to Superintendent W. Craig stating he was fit to return to his duties as a Security Officer. Due to, in the Ministry's opinion, conflicting information regarding his ability to return to work, Mr. Jankovics was not allowed to return to work. Effective February 4, 1983, WCB stopped paying supplementary benefits to Mr. Jankovics. On May 16, 1983, he filed a complaint against the Ministry with the Human Rights Commission alleging that the Ministry was discriminating against him by not allowing him to return to work because of his handicap. A settlement of the complaint was reached on October 18, 1983. On November 21, 1983, Mr. Jankovics' appeal of the cessation of the WCB supplementary payment as well as the level of his disability pension was heard. On April 9, 1984, he reported to the Employee Health Service for another medical examination but was not prepared to proceed with the 3. 4. 5. 6. 7. 8. 9. 10. c. 11. 12. 13. 0. . . -5 - . . examination since he felt it might prejudice him. 14. On May 1, 1984, WCB admitted him to their Hospital and Rehabilitation Centre for assessment. He left the centre on May 15, . 1984 subsequently, he was certified fit to return to his regular duties. 15. He returned to his regular duties as a security officer on June 20, 1984. 16. His benefit coverage continued throughout the period with him paying his portion of the premium. 17. No contributions were made towards his pension credits. Mr. Jankovics does have the right to buy back that time. i 18. Both parties re'serve the right to lead further evidence should the Board find that it has jurisdiction to hear the merits of the grievance. In spite of the agreed Statement of Facts, the Grievor was called upon to testify. No useful purpose can be served in reviewing , the Griever's testimony, much of which was unrelated to the preliminary issue. The matter proceeded primarily by the presentation of brief c arguments on the preliminary issue. The Employer's position was to the effect that the time limits contained in Article 27 are mandatory, and that in the absence of an extension of those limits, the Grievance was grossly out of time. The Union contended that the Grievance was in the nature of a continuing Grievance, and that the Grievor could not have processed a Grievance earlier because of lack of information. . : -6 - Mr. Luczay sought permission to advance a Charter argument in support of his position. In fairness to Mr. Lucxay., he willingly acknowledged that the Employer had insufficient notice of the Charter argument. The Board then ordered written submissions within prescribed time limits. Extensive.briefs on the Charter argument were submitted accompanied by volumes of supporting authority. The Board will not attempt to repeat -the detailed Charter arguments submitted, except in summary form. The Union's brief was prepared by Alick Ryder, Q.C. The thrust of Mr. Ryder's argument was that the timeliness provisions of Article 27.2.1 ought to be interpreted as directory and not mandatory in order to comply with s. 15 of the Charter, or alternatively, if the Board regards the provisions as mandatory, the Article is invalid and should be given no effect, as a violation of s. 15 of the Charter. Specifically, Mr. Ryder contended that the inequality raised (~ in this case was that government employees covered by the Crown Employees Collective Bargaining Act are absolutely barred from having their grievances determined by arbitration if they fail to observe a time limit in the Collective Agreement (absent any agreement to extend the time limits), whereas a similar failure by employees in the private sector~governed by the Labour Relations Act, may be relieved against under of s. 44(6) of that Act. -7- The Union contends that the Grievor is "similarly situated" to an employee in the private sector who enjoys the benefits of s. 44(6) of the Labour Relations Act. Accordingly, the Union argues that 6. 15(l) of the Charter requires that individuals who are similarly situated be treated similarly, and ~that.government employees are discriminated against when compared to private sector employees. Mr. Ryder contends that, in these circumstances, government employees do not enjoy "equal protection and equal benefits of the law" as required by s. 15 of The Charter. On behalf of the Employer, Mr. Milich advanced five arguments: (1) (2) (. (3) (4) (5) Section 15 of the Charter has no application on the facts of thm because the section has no retrospective effect: This Board has no jurisdiction to determine a Charter challenge because it is not a "Court ofetent jurisdiction" within the meaning of s. 24(l) of the Charter: The Charter does not apply to the Collective Agreement between Management Board of Cabinet and the Ontario Public Service Employees Union; On the merits, there is no contravention of s. 15(1)'of the Charter: and In any event, the time limits in Article 27 of the Collective Agreement are saved pursuant to 8. 1 of the Charter. In an extensive reply brief, Mr. Ryder disputed the validity of each of the Employer's arguments. . -8 - S. 44(6) of the Labour Relations Act reads as follows: "Except where a collective agreement states that this subsection does not apply, an arbitrator or arbitration board may extend the time for the taking of any step in the grievance procedure under a collective agreement, notwithstanding the expiration of such time, where the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension." The following provisions of the Charter were cited by the i Parties: .Equality Rights 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 'Guarantee of Rights and Freedoms 1. The Canadian Charter of Rights and Reedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." -Enforcement 24. (1) Anyone'whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the Circumstances. i -9- .Application of Charter ~32. (1) This Charter applies (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories: and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. (2) Notwithstanding subsection (11, section 15 shall not have effect until three years.after this section comes into force." 'General 52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect." There is no dispute that the Grievor wasoff work disabling leg injury from June 22, 1980 until June 20, 1984 result of an Employer medical examination on September 30, with a As a 982, the Grievor was diagnosed as permanently unemployable.as 'a Security Officer. However, on December 13, 1982, the Grievor presented a medical certificate from his personal physician to the effect that he was fit to return to regular duties. The Grievor was not allowed to return to work until June 20, 1984. It should have been clear to the Grievor, when his submissions of a favourable medical certificate failed to achieve the desired effect, that he should file a grievance protesting the - 10 - E,mployer'S position. However, he chose instead to pursue other remedies. In May, 1983 he filed a complaint against the Ministry to the Ontario Human Rights Commission alleging discrimination in the Ministry's failure to allow him to return to work. Subsequently, in November of 1983 he filed an appeal to the .Worker’s Compensation Board. This Board-is satisfied that the Grievor had a potential grievance of a continuing nature against his Employer during the period ( December 13, 1982 to and including June 19, 1984. The Board is not persuaded that a Grievance filed subsequent to his return to work on June 20, 1984 could be properly described as a "continuing breach". In fact, the Grievance was filed some 15 months after his return to work on June 20, 1984. In our opinion, the Grievance is entirely out of time and cannot withstand the mandatory time limits contained in ! , Article 27 of the Collective Agreement. Once the Grievance was filed, the Employer promptly advised i Mr. Jankovics that his Grievance was untimely. Obviously, the Employer was not prepared to waive the time limits. Article 27.11 provides that a Grievance not processed in a timely fashion "shall be deemed to have been withdrawn". Article 27.14 leaves no doubt that the Board has no jurisdiction "to alter, change, amend or enlarge any provision of the Collective Agreement". Issues of a similar nature have been considered by numerous panels of the Grievance Settlement Board. See, for example, Parr, . . !. I - 11 - 317/82 (Swan); Goheen, 321/82 (Verity): and Lam, 377/83 (Jolliffe). In - those decision, the grievances were dismissed as untimely having regard to the mandatory requirements of Article 27 of the Collective Agreement. But for the Charter, the provisions of Art the Board of jurisdiction to grant a remedy. , jud i 19, ,icle 27 deprives In our opinion, the Ontario Divisional Court Judgment in the cial review of Balderson, 1589/84 (Delisle), released on December 1986 disposes.of the Charter argument in the instant Grievance, The majority decision in Balderson held that a probationary employee could not be released under the authority of s. 22(5) of the Public Service Act. In that decision the Board held that the Griever's "release" was discriminatory and contrary to s. 15(l) of the Charter. ( In the judicial review of Balderson, the only issue which the Ontario Divisional Court considered was whether the Grievance Settlement Board erred in giving s. 15(l) a retrospective application. S. 15(l) of the Charter did not come into force until April 17, 1985. In quashi at p. 6: ng the Balderson decision, Mr. Justice Craig stated I / - 12 - "We are all of the view that the Board did apply the Charter to a past event; that is the release from-pent, and that this was a retrospective application. At the time of her release the grievor did not have the right to grieve that release. In coming to that conclusion we rely particularly on the decisions of the Ontario Court of Appeal in Kirsten, supra, per Tarnopolsky J.A. (R. v. James, Kirsten and Rosenthal, 55 O.R. (2d) 6091 and R. v. Neely, 51 C.R. (3d) 296 per Morden J.A." There can be no doubt that the Charter has no retrospective application. In the instant grievance , the Board is satisfied that s. l,, 15 of the Charter was not in force at any relevant time (December 13, 1982 to June 19, 1984) and that the Charter has no retrospective application to past events. The past event.was the Employer's refusal to provide the Grievor with employment between December 13, 1982 and June 19,~ 1984. In our opinion, the filing of a grievance after the Charter came into force does not assist the Grievorr For the above reasons, this Grievance is dismissed. ( DATED at Brantford, Ontario, this 20th day of February, A.D., 1987. R. L. Verity, Q.C. - Vice-Chairman