Loading...
HomeMy WebLinkAbout1987-0766.Union.88-08-11i..- CRolyN EUSOVEES : ) -. GRIEVANCE WbFMENT Between: ,,.~ ( ;.. IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES’ COLLECTIVE BARGAINING ACT :.‘. Before THE GRIEVANCE SETTLEMENT BOARD Before: For the Grievor: For the Employer: f Hearing: OPSEU (Union Grievance) - and - The Crown In ‘Right of dntario (Ministry of Tourism and Recreation) D. Fraser , Vice-Chairman J. Solberg Member ’ H. Roberts Member Ian Roland, Counsel ,““I” Gowling and Henderson Barristers and Solicitors, Michael Milich, Esq. Staff Relatlons Officer, Management Board of Cabinet April I5th, 1988 Grievor Employer !- . ‘This is a union grievance trherein the Union has claimed that fhe iilinistry~ has contravened Article 4 of the collective agreement by posting a classlficatlon of clerk Steno 4 as a bilingual position, with the Posltion Title of “Bilingual office Secretary,” and the new qualification of “fluency in French.” Prior to the posting, the position had not been characterised as bi!ingual, and it had been filled by a unilingual English-speaking incumbt‘n:. Although the remedy as found on the grievance form requires a declara- tion that the Ministry’s actions were contrary to the collecti\Te agreement, the remedy requested at the hearing Is that the position be reposted as H unilingual position. The Union has also requested that should that be ordered by the board, we should also stipulate some conditions for the resulting competition. in order that the incumbent not be given an unfair preference. , t.,:: .The successful incumbent for the posted position was notified of this hearing, but chose not to attend. The essence of the grievance, as characterised by counsel for the Union. Is that the billngua1 designation in the posting, and consequent requirement of fluency in French, are unreasonable under all the circumstances, including the fact that the position has been a unllingual one providing unilingual services in English for a substantial number of years. It is alleged, in consequence, that the posting is In violation of Article 4 of the collecrlve agreement, and in par- ticular Articles 4.2 and 4.3 which read as follows: - 3 - “4.2 The notice of vacancy shall state, where applicable. Lhe nature and title of position, salary, qualifications required, the hours-of-work schedule as set out in Article i (Hours of Work), and the are,a in which the position exists. 4.3 In filling a vacancy; the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, length of continuous service shall be a consideration..” The Ministry has responded that there is no contravention of the collec- tive agreement as the addition of the bilingual characterisation .td the Position Title and the new qualification of fluency in French are new duties which the employer has the sole right to assign to the posit.ion in view of its management functions found in Section 18(l) of the Crown Emoloyees Collective Bargaining .4ct. That section reads as follows: “18. (1) Every collective agreement shall be. deemed to provide that it is the exclusive function of the employer to manage. which function, without limiting the generality of the fore- going, includes the right to determine, i... (a) employment, appointment, complement, organization, assignment, discipline, dismissal, suspension, work methods and ~proce- dures; kinds and locations of equipment and classification of positions; and (b) merit system. t.raining and development, appraisal and super- annuation, the governing principles of which are subject to review by the employer with the bargaining agent,. and such’ matters will not be the subject of collective bargaining nor come within the jurisdiction of a board.” In the alternative, the Ministry submits that if it does not have such a .right, the new characterisation of the Position Title and added qualification of fluency in French are reasonable in any event in view of a Ministry policy to --I- i providfx French language services, and consequently are not In breech of Article 1 of the collective agreement. The Ministry also submits that the grievance is unarbil.rabie as being a ,management rights issue, which flows from its first response noted above, and as being untimely. The submission that the grievance is out of time must be considered and determined before this board proceeds to consider the other issues. as a finding of unrinieliness may end the board’s jurisdiction To proceed further. \Ve yil! according!y turn to that matter first, and ivill limit our consideration of the facts at this point to those relevant to tlmeliness. In brief. the Ministry has submitted that the grievance is’ out-of-time for a union grievance, havlng been filed outside mandatory time limlts as provided by the collective agreement. The Union has responded that the grievance is. a continuing one in Its very nature, and hence is not outside such limits. In additicsn, the Gnion has noted that the objection to timeliness was no: raised at the earliest possible opportunity, and that such failure consitutes a waiver of the objection to timeliness. However. the Union does not dispute that rhe time limits involved. if applicable. are mandatory. We agree rith that vie.nr and ?ill not explore that issue further (see, for example, Jankovlcs, 960/85 (1’erit.v) and cases cited thereln at pp. 10-11). The mandatory tlme limit is found in Article 27.12.1, which provides a requlrement’to file the grievance at the second stage within 30 days “following ’ - 5 - the occurrence or origination of the circumstances giving rise to the grievance.” and it reads in full as Pollows: “27.12.1 Where any difference between the Emiloyer and the Union arises from the interpretation, application, administration or .’ alleged contravention of the .4greement, the Union shall be entitled to file a grievance at the second stage of the grievance procedure provided it does so within thirty (30) ( .~ days follol.ving the occurrence or origination of the cirucmstances giving rise to the grievance.” Such requirements for a union grievance may be contrasted with those for an individual grievance, which are found in Article 27.2.1. That article reads: “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.” It is conceded,,as we have noted, that such time limits are mandatory, and as a statutory board with no jurisdiction “to alter, change, amend or enlarge any provision of the Collective Agreement” (as per Article 27.16). we : must abide ~by the mandatory provisions in Article 27.12.1 unless they have not been breached (if the grievance is a continuing one), or unless they have been waived by the Ministry. The relevant facts for this .objection involve the following matters, all of which were agreed to by both counsel at the hearing. The job in question was posted on October 24th, 1986. The result of the competition was announced on December lOth, 1986. The grievance was signed .Irticle 27.12.1 requires that the grievance be Piled within 30 days following the occurrence or origination of the circumstances giving rise to the grievance, and Article 27.14 provides in effect that Saturdays, Sundays, and designated holidays shall not be included in counting the 30 days relluirr*!! for filing. Finally; there has been no extension of t~ime limits for such filing. 2s may be done by the parties in writing pursuant to Article 2i.15. On these facts, the Ministry has submitted that even if one takes the result date of the competition (December 1Dth) as the “occurrence or origination of the circumstances”, the filing date of the grievance, if taken at the earliest as February 13th, Is well outside the mandatory 30 day period. Counsel for the Union agrees with the arlthmotic of this proposition. while malntaining his posi- tion respecting a continuing grievance, and waiver. We will.now review those ( matters, by starting with the language of the collective agreement. by the Union on February 13th. 1937. and it was recei\e:l in the Depur! Minister’s Office on February 23rd, 1987. The 30-day clock starts counting for the filing of a union grievance “following the occurrence or origination of the circumstances giving rise to the grievalce.” In contrast, the 20-day clock far an “individual grievance starts counting on the employee “first becoming aware of the complaint or difference.” We would first note that the time period for an individual grievance requires an awareness, which may come some time after an incident giving rise - 7 - to a grievance. and which may be proved by direct evidence from the grievor. Such a requirement provides a form of safety net for an employee, whose loca- tion may be controlled by his job function, and who may not, as a result, be in the vicinity of a job posting in which he is interested, on the day it goes up. (- No such safety net is provided for a union grievance, presumably as a result of the union’s role to keep an eye on circumstancesin the mark-place, and its ability to do so through a number of people. We would accordingly adopt the view of the board in OPSEC’ (Union Grievance) 1646/&S (Brandt) which noted (at pp 4-5): “We agree with the submissions of the Employer that the time from which .the count must begin is the time when the Employer took the action com- plained of and not the time that the Union became aware of the action and the possibility of a violation.” Thus, if the date the job was posted is the date of “occurrence or origination of the circumstances giving rise to the grievance,” that is the date (; : from which the count begins. To determine if that ,is the case we must first consider whether “occur- rence” and “origination of the circumstarses” mean the same or different things. That question is important because an origination of a set of circumstances is ./ almost always a single event. To originate is to “give origin’ to, initiate, cause to begin” (Concise Oxford Dictionary, 7th ed.). and thus the “origination” refers to the beginning of the events ,and ‘not their continuation. Is “occurrence” meant to have a similar sense, because it is ,eiusdem generis (of the same class). or does it have a different sense because it Is followed by the disjunc- - 8 - tive “or”? We conclude that “occurrence” is inbercnrl>- different from “originn- tlon.” Its deflnltion “Occurrlng (Is of frequent . . . . often occurs)” (Concise Oxford Dictionary, 7th ed.) suggests repetition. and~we conclude that while there may be only one “origination”. there can .be frequent or continuing “occurrences.” Thus the clock may start afresh if the occurrence may be characterised :IS a continuing one. One might have a frequenr. or a daily occurrence giving rise to fresh time periods, just as one might have a continuing “difference” between the parties as provided for in Article 27.2.1 for an individual grievance. The case law respecting the nature of a continuing grievance has been ably canvassed in &‘A_lgoma Contractors Ltd. and United Steelworkers, m 4694 (1980) 25 L.A.C. (2d) 292 (Hinnegan). .In that case, the board commented as follows as pp. 295-296: “The essence of a continuing grievance is that the act complained ‘of must be one which recurs. As noted in Re Dominion Glass Co. Ltd. and United Glass and Ceramic Workers, Local 246 (1972) 1 L.A.C. (2d) 151 (Reville) [award quashed 5 L.A.C. (2d) .22Jn. 33 D.L.R. (3d) 629, 119731 2 O.R. 573 (Ont. Div. Ct.); reversed L.A.C. lot cit.. 40 D.L.R. (3d) 496. 1 O.R. (2d) 408 (Ont. c.A.)]. the principles on this matter which can be elicited from the reported awards are Ip. 1541: [A] grievance to be a continuing one. must involve repetitive breaches ol the collective agreement and not be simply a single and isolated breach of the collective agreement. The damage complained of must be of a recurring kind and nature. Continu- ing grievances are usually (though not always) repeated viola- tions of the collective agreement, involving the non-payment of money or beneflts to individual employees or the union, or con- versely, the infllctlng of damage on a recurring basis on the company by employees and the union withholding their services illegally. The board’hastens to add that its analysis of a con- i ‘< .’ - 9 - tinuing grievance or a continuing violation of a collective agreement is by no. means comprehensive or exhaustive. Xany situations might arise which, on the individual facts, and the individual Gording of the collective agreement, might be encompassed by these terms. Although there is some suggestion in the Poregoing quote that the continuity of damage is a criterion in this matter, this is clearly not the case: it is the recurrence of the act by the alleged violator of the collective agreement that is the basis for a finding in these , cases. It is irrelevant that the consequences of the initial act, are ongoing. In Re Parking Authorit.r- of Toronto and C.b’.P.E.I Local 13. i: (19741, 5 L.A.C. (2d) 150 (Adell) [application for judicial review dismissed 5 L.A.C. (2d) 336n, 47 D.L.R. (3d) 40. 4 O.R. (2d) 45 (Ont. Div. Ct.)], continuing grievances were defined as: . . grievances which do not relate to a single act possessing substantial finality, such as a~discharge or a promotion, but relate instead to a continuing cou?se of conduct -- conduct which is renewed at regular intervals and is capable of being considered as a seri.es of separate actions rather than as. one Bction which may just happen to~have continuing consequences. The Ontario Court of Appeal made this point abundantly clear in its review of the Dominfon Glass case, supra. .In that case also, the grievance arose because .of a decision by the company to assign certain work to an employee outside of the bargaining unit. The union filed a grievance some months after the transfer of work and the employer raised an objection relating to the.,timeliness of the grievance. The board reviewed several of the earlier decisions and concluded- that the grievance could not be considered as a recurring i,&i. violation of the collective agreement because the circumstances giving rise to the grievance were completed .upon the assignment of the work to the employee outside of the bargaining unit. In an unanimous decision the Court of Appeal stated [p. 490 D.L:R.J: “As to the third question [the issue of continuing violation1 upon which leave was granted, we are all of the view that the board reached the right result and that this was not the subject-matter of a continuing violation. The grievance had to do with an action taken by the company on a specific occasion and while the consequences may have been continuing, the violation was embraced in the particular action taken by the company in mid-October.” The excerpt therefore indicates that to have a continufng grievance, the act complained of must be one which recurs, or is renewed so that it has the t - IO - clrar:~cter’lstic of a series of separate actions. It is irrelevant to SlJCh ).PQUi!.e- ments that the consequences of the initial act are ongoing. In the present case, We have been given evidence of a Ministry policy to provide for French language services, bout it is the job posting, and its conrents, that form the subject matter of the complaint. The Ministry policy may halJ;e been the Initiating factor for that job posting to contain a bilingual require- ment, but it is not the policy that is claimed to be contrary to the collective -/ agreement, it is the posting itself. Nor is this an individual grievance where we are asked to cure an employee’s complaint or difference arising from the failure to win a competition, although such may be a consequence of the post- ing, and may indeed be a continuing matter. The posting went up on one specific date, and was taken down on another, and those are specific events. We are asked to amend that posting, and have it put up again. If we look for the “origination 01 the circumstances,” that “origination” occurred on the date of the posting, October 24th, 1986. If it is an “occurrence,” that occurrence ended. even at best, when the results oP the competition ,became available on December 10th. 1986. In the result, the matter bePore us does not involve a continuing “occurrence” which would bring the filing of the grievance within the time 1i.mit.s prescribed by Article 17.12.1. Have the time limits then been waive:d by the Ministry? Counsel for both the Ministry and Union agree that the objection to timeliness was not raised at the outset of the grievance, which is the filing that becomes the second stage by virtue’of Article 27.12.1. They also agree that it was raised at some point I. ‘. - 11 - subsequent to the filing, and it was a matter of discussion between :he parties Finally, counsel for the Union does not allege any detriment resulting from the failure to raise the objection at the earliest possible time, and there is 8cCOrdingly no estopped issue before us. ’ t., We accordingly have no evidence respecting the exact time the objection was raised, but we know that it was not raised at the earliest possible opportunity,’ nor so late that counsel for the union was not aware of the matter and unable to meets the objection at the hearing. ~Th-e board in Re Alnoma Contractbrs Ltd. (supra), ha%concisely summarised the. situation with respect to waiver at p. 298’, in the following way: “Whether a party~ to a collective agreement’can be found to have waived his right to object JO non-compliance withy procedural requirements requires not insisting on some right or giving up some advantage intentionally. It involves both knowledge and .intention to forego the exercise of such a right: Re Metropolitan Toronto and C.U.P.E., Local 79 (1974). 5.L.A.C. (2d) 311 (Carter). The legal principles of the doctrine of waiver were considered in detail in Re Regency Towers Hotel Ltd. and Hotel and Club Employees’ Union, Local 299 (1973), 4 L.A.C. (2d) 440 (Schiff). Generally, by failing to make a timely abjection and by treating a grievance on its merits in the presence of a cleai .procedural defect, a party is deemed to have waived the defect. ‘That is, by not objecting to a failure to act within mandatory time-limits until the grievance comes on for hearing, the party then objecting will be held to have waived non-compliance and his objection to arbitrability will not be sustained.” Does it matter in the case before us that the objection was not raised at the very outset? In the case oP & Metrouolitan Toronto, cited by the Hinnegan board, the objection’to timeliness was raised at the outset, which was Step 2 of . - I2 - the grlevsnce procedure in the collective agreement and the starting point for’ :I union grievance. That objection was sustained by the board. In the case of & Regent): Towers Hotel Ltd. also cited by the Hinnegan board, the objection to -- -. timeliness was not raised until the day before the hearing. It was found by the board not to have been raised In a timely fashion as a consequence, and the objecttcn was dismissed. The parties were found to have waived the mandator:/ provisions of timeliness in the collective agreement as a consequence. and the board determined to hear the grievance on its merits. In the .Algoma case :.<hich we have quoted, the objection was given at Step 2 of the grievance procedure. and was consequently found to be timely. However the board in .that case found further that there were reasonable grounds for an extension of the mandatory time limits, and that no substantial preJudice would occur If such an extension were given. It then granted an extension pursuant to its statutory powers. to so do under s. 37(5a) (now s. 44 (6)) of the Ontario Labour Re!ations Act. R.S.0: 1970. c. 232. a remedy which is not available to this board. These cases are at the two extremes of the time spectrum In respect of raising an obJection “in a timely fashion.” and are of limited help. However. in & Parking Authority Ef Toronto a& C.U.P.E., Local 43 (1974). 6 L.A.C. (2d) IS0 (Adell) [application for judicial review dismissed 47 D.L.R. (3d) 40, 4 O.R. (2d) 45 (Ont. Div. Ct.)l, the obJection was raised. neither at the outset, nor Immediately prior to the hearing. but about :three-quarters of the way along the road. The board found as follows (at p. 152); I It is disturbing that the tlmeliness objection was not raised until nearly three months after the bringing of the grievance. Hqwever, - ’ : .I - 13 - over a month remained before the hearing, and it is apparent that the union was not in any noticeable, way prejudiced in the prepara- tion of its case by the employer’s delay. In addition, the provi- sions of the grievance procedure with respect to meetings between the parties for discussion of the grievance appear not to have been complied with. The employer’s, failure to raise the timeliness objec- tion until October 1st is ‘therefore, partially understandable. In these circumstances, and in light of the lack of prejudice to the union, we find that the employer did not waive its right to raise the timeliness objection.” l We do not know in the present case exactly when the objection ~;as raised, but we know it was neither very early nor very late. Furthermore, no prejudice to the union was alleged as a consequence. Finally, within this framework, there is no evidence that the employer intended to waive its objection. In such circumstances; it is our view that some facts must exist indicating an Intent to waive the provision of the collective agreement, absent total inaction to the period immediately prior to the hearing. In this respect, we find the comments of the board in & Metronolitan Toronto (supra), apposite. At p. 319, the board noted: L:: “This board accepts the proposition that the doctrine of waiver can apply In the absence of detrimental reliance, but it also considers that it must be confined to those situations where the facts clearly indicate that a party did not intend to invoke the procedural provisions of the collective agreement. To apply the doctrine\ of waiver without’evidence of such intention would amount to an amendment of the collective agreement by the board, rather than by the parties. Thus, in applying the doctrine of waiver, a board must be certain that the facts do indicate that one of the parties intended to relinquish its rights under the collective agreement..” In view, therefore, of the lack of prejudice, of the lack of a clear indica- tion that the employer did not intend to invoke the procedural bar, and of the positive evidence that the issue was indeed raised at some time not Immediately c - I-1 - prior t.2 the hearing, ~.ve conclude that there ‘&as no !A:niver of the timeliness provision, and that the objection to timeliness must be sustained. In the result. this net being a continuing grievance, it must be dismissed. Although this result stands on its own for the reasons given, the same result may be reached through an alternative and more direct application of other legal doctrine. ‘tie would include the alternative approach because the application of the doctrine of waiver to the circumstances before us, as in the cases noted, becomes awkward (notwithstanding its validity in law) and should be abandoned in favour of a more cogent approach. For example, waiver is treated as being distinct from estoppel, and no detriment is required. Nonetheless, in considering the question of timeliness. aribtrators sometimes feel constrained to consider whether there !vas any result- ing prejudice. One is hard put to distinguish between prejudice and detriment. Thus luaiver. in its application, tends to fuse back into the notion of an estop- pel. Second, waiver through inaction, where for example there is no objection until the 11th hour, is an inherently unsatisfactory way to produce the result that a collective agreement is thereby amended on its terms. If one should require facts clearly indicating a relinquishment of collective agreement rights - 15 - ‘m (as suggested in the quote from Re Metropolitan Toronto (supra)), something positive would seem preferable to inaction Third, as a consequence. the requirement of objecting~ “in a timely fash- ion” is not clear in its application, because the underlying principle requiring such timeliness has not been definitively expressed. We would consider chat such procedural objections may better be founded’ in the requirements of natural justice, than in waiver. In particular, the audi alteram oartern rule requires that a party be made aware of the case it has to meet. in a timely fashion. Ins both criminal ‘and civil litigation there is an abundance of rules to ensure that this requirement of natural justice is met, and they produce a Fairly full disclosure of all the issues prior to adjudication. Such rules may be adopted into arbitral ~jurisprudence, at least in the area of procedural objections going to the jurisdiction of a board, by the simple requirement that notice of such procedural objections be raised in a timely fashion prior to the hearing, in order to satisfy the requirements of natural justice. If a party wishes to rely on a procedural bar, it must then give timely notice of such an objection, with the risk that it will not otherw,ise be heard at the hearing as the disclosure required by natural justice has not been met. - Iti - With such an approach, the awkward ,result that. a collccLive agreement has tmeen amended by waiver through inaction is avoided, as is the question whet~her inaction has produced prejudice, which blurs the distinction between waiver and estoppel. Accordingly. in the present case, we conclude that the disclosure of the objection of timeliness was made in sufficient time t.o meet the requirements of natural justice, and In particular the rule audi aIrcram partem. We arrive at this simple result in addition to our finding that there was no waiver, as each result supports the other. As we have noted above, the objection otherwise succeeds in view of the mandatory provisions respecting timeliness in the COI- lective agreement, and we have no jurisdiction to otherwise waive or amend those provlsions. For this reason, also, the objection 1s sustained and the grievance is dismissed. Dated at Ottawa this 11th day of August , 1988 &- D. Fraser, Vice Chairman w Addendum attached. J. ~Solberg. Member .,A,’ H. Roberts, Member L ADDENDUM I believe the Board conducts a useful analysis of the difference between an “occurrence” and an “origination”. To that extent, I support the reasoning and result of this award. With one small caveat. I believe, with respect, that the Board stands on shakier ground when it collapses together the legal doctrines of waiver and estoppel in its application tr? the timeliness of notice. In fact, the remedies are quite different. In the case of a waiver, the legal rights waived can not be revived; but in the case of an estoppel, the legal, rights -aStopped may be relied upon at the expiry of the collective agreement. That is a distinction which in my view ought not to be blurred. .J: Solberg