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Home My WebLink About1986-1978.Tharakan.88-03-15IN THE MATTER OF AN ARBITRATION THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCZ SETTLEMENT BOARD .’ Between OPSEU (‘2. Tharakan) Grievor And The Crown in Right of 0n:ario (Ministry of Consumer & Commercial Relations) r Before For the Crievol For the Employer Hearing December 9, 1987 Employer B.A. Kirkwood Vice-Chairman I. Freedman Member P. Camp Member M. Cornish COUnSel Cornish & Associates Barristers & Solicitors ” M. Fleishman Law Officer Crown Law Office Civil Ministry of the Attorney General INTEKIk DECISIOfi At the outset of the hearing a pttliminary objection WBS raised by the employer disputing the Boards jurisdiction. The employer’s counsel objected that the ttrdon referred the grievance to the Gticvancc Settlemnt Boatd for bearing beyond the mar&&ny tkne limits set out in article 27.4 of the collective agreement Further, that as the ma&tory time limits wem not followed the gtievancc is withdtawn under the $rovi.siotts of article 27.13 of the cokctive agreement and the hoard does not have tlte jutkdicrion to hear the argumetq as the boatd does not have any ability to enlarge its jutisdicbon under article 27.16. The uniott’s counsel conceded that article 27.14 set out mandatory time limits which the union had not complied with. However, in the union’s view, the employer had waived its tights to rely up& the mandatory limits by failing to make this objection subsequent to the union’s request for a hearing. The board heard no viva vote evidence. The patties relied solely on the documents which WacprrsentedtothebosrdasExhibialtoginclusive. lEeseqenceofevetttswhichoccurredby reviewing the Exhibits prtsGmd aad the submissiorls of the pGttlcs is as follows. The gtievor tiled a gri~vma on April 23.1986. claiming that he bad not been awarded the position of “Corporation Information Data Clerk” under competition mtmber CR22/86 which position was posted on Febrttary 14,1986. and he was tbemf~ seeking the position retroactive to the date in which the position was med. A second stage meeting was held on July 2.1986, and on July 8.1986, Mr. ‘fharakan was advised by the employs rhat the emplOya% dccislon would not be ttsavd On octoba 8,1986, Joan Read, the admit&&ve ass&rant of the grievance depattment of Ontario Public Service Employees Union forwarded a letter to the Registrar of the Grievance Settlement Board aakhg that be gritvana which is prtmtly Mare the board be consolidated with another grkv~tta. The Rew fonvamed a copy of this r#luesr to thc’Deputy Minister, Ministry of Consumer and Corporate Relations, on December 31. 1986. Jn nsponse to the Registrar’s request for comments on the consolidation, the Ministry advised the Rqistrar by letter dated January 12.1987, that in their view the two grievances were totaJly unrelated and distinct separate job competitions and the hfinistxy will not agree with the union’s request for consolidation. The Ministry also stated to the Grievance Settlement Board that it was not prepared to waive the Page 3 mandatory time limits under the collective agreement and should the union proceed to hearing the Ministry would ask the board to rule on the preliminary issue prior to hearing the merits. The Registrar forwarded the, Ministry’s response of January 12. 19817 to Ontario Public Service Employees Union for their information on Ftbruary 4,1987. On March 2.1987, the union decided to proceed with this grievance and asked the Registrar of the Grievance SettIement Board by letter of March 2.1987 to atrange for a heating. The parties proceeded to mediation in October 1987. Both patties agreed that the employer did not raise its objection to the jurisdiction of the Board at the mediation to the union, although the employer stated that it did bring this issue up before the mediator in a session which did not include the union. The day before the hearing the union’s counsel learned that this ptehminary objection was being made. The Board finds that the application which was made by the union on March 2.1987 for a hearing, was grossly beyond the time limits set out in article 27.4 and the employer was entitled to successfully~make its objection that the Board would have no jurisdiction because of Article 27.3, 27.13 and 27.16 unless it could be found that the Ministry waived the time limits by its actions and omissions. 0th~ cases which have come to tlt~ Grievance Settlement Board have applied these amcles of the collective agreement in the satm manner. -.. The cases of w and McIsaac. Grievance Settlement Board, #742/83 and 24/84 and the Lg& case, Grievance Settlement Board #377/8, clearly support the proposition that the time limits set out in Article 27.3 are mandanny, and by virtue of Article 27.13 the grievance would thereby be considered to be withdrawtt if it has not been processed within those mandatory time limits. The Board does not have the jurisdiction under Articlt 27.16 to enlarge the time limits. However, contracting parties themselves may waive the mandatory time liits in the collective agreement &t&s~R, Grievance Settlement Board, #1483/84 (G. Brent)). This can be done either by express agreement OT as Gail Brent states in that awatd, at page 5: “By the action of the “innocent” party in failing to object to the pmadural lnegultitity in a timly fashiop. we believe thataieag 210 of Q Palmer correctly summan ‘zed the situation when he wrote the following: Like estoppek “waiver is a legal banin to the exercise of the tights in a particular case, emcted by the conduct of (sic) words of the parties”. Conduct which has been held to amount to a waiver includes: allowing a grievance to go through the grievance procedure; failure to object at the first opportunity to the grievance Page 4 procedure;... and an attempt to settle the grievance. Waiver can also be by verbal agreement. The right to object at a later stage can be retained by a statement to that effect at the first opportunity qr by a timely objection, even though it is not raised again until the hearing. Generally, waiver arises therefore where it is clearly indicated that one of the parties does not intend to invoke the procedural provisions of the collective agnement. There is no need for detrimental reliance by the other party...The onus of establishing waiver is on the party alleging it”. Thereby, the issue is whether or not the “innocent party”, the employer, acted in such a manner to lead the union to believe that the objection was waived. In the McNamara case, Grievance Settlement Board, #272/81, grievances were filed several months after the time limit and it was clear that the union had failed to comply with the fifteen day requirement & the collecdve agrsment Tote employer did not notify the R&istmr that it was taking the position that the grievances were inarbitral because of the faila to comply with the time limits and discussed the grievance as an “alive” grievance in the context of the mediation. The union counsel did not become awE, until the day before hearing that this objection was going to be made. The Board held, after considering & V.S.W. and s ‘v’ (1970) 22 L.A.C. (2~3) 125 Brown, that where the &fect was apparent on its face and the employer failed to raise,the objection until the hearing, the defect is waived In the case before this Board, the defect was apparent and the employer conveyed its objection to the Registrar at its earliest opportunity, but it did not convey its objection to the union directly until the date before the hearing. By not saying or communicating any objection to the union after the employer became aware that the grievance was beiig ptccessed for a hearing and then by participating in the mediation process again without communicating its objections to the union, the employer is acting in such a manner as to take the next step in the grievance and lead the union to believe that there was no objection to the arbitrabiity of this grievance. If the employer had intended to resolve the merits of this case, without waiving its right to raise its objection, the objection should have been raised prior to the mediation and an agreement reached between the parties that the mediation was occurring “without prejudice” to the Ministry raising the time limit objection at the hearing. t :. . . However, therefore as the employer failed to notify’the union as soon as the employer found out that the grievance was being processed and by participating in the mediation again without malting an objection, the Board finds that the employer waived the objection to the time limits which would otherwise have been available to successfully argue that the Board had no The board finds that the union was able to establish that the employer did waive the time limits by its actions and omissioniand that the employer failed to show that its objection to the jurisdiction was made in a timely fashion. Therefore as the board has jurisdiction to hear this matter, the p&es will be contacted to resume the hearing. Dated at Toronto, this’ “~5i3i DAY of MARC?! , 1988. 1. I. FREEDMAN, MFXBER~