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HomeMy WebLinkAbout1987-2487.Kingston.88-08-22EMP‘OYESDELA COURONNE OEL’ONTARIO CPMMISSION DE REGLEMENT DES GRIEFS IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: -- Before: OP;EU (Gerald Kingston) and The Crown in Right of Ontario (Ministry of Health) Employer N.V. Dissanayake Vice Chairman .I. Solberg Member L. Turtle Member For the Grievor: G.A. Richards Senior Grievance Officer Ontario Public Service Employees i’nion i This is a grievance wherein the grievor claims that he has been unjustly disciplined by the employer. The grievor was employed at the Kingston Psychiatric Hospital in Kingston Ontario as a Group Leader, Cleaner 3. Sometime in 1986 a complaint was made by a female employee, that the grievor had harassed her. Following an investigation of that complaint by the employer, the grievor was demoted to cleaner 2 effective December 31, 1986. It is agreed .that the .demotion was a disciplinary response to the alleged misbehaviour on the part of'the grievor. At the commencement of the hearing of this grievance, counsel for the Employer raised a preliminary objection to the jurisdiction of the Board to entertain the grievance. The grievance of Mr. Kingston was Piled on January 7, 1987. The Stage One reply was received on January 9, 1987.~ The matter was referred to Stage Two of the grievance procedure on January lb, 1987. Following a grievance meeting held on February 6, 1987, the employer issued a Stage Two reply dated February lb, 1987, denying the grievance. The referral of the grievance to this Board for arbitration is dated 2. . . -3- February 25, 1988. The Employer's preliminary objection is based on Article 27 of'the collective agreement which sets out mandatory time limits for each stage of the grievance procedure. Specifically, article 27.4 states that a referral for arbitration may take place within 15 days of the date a Stage Two reply is received. Article 27.13 states that if the time limits are not complied with, the grievance "shall be deemed to have been withdrawn". It is common ground that the present grievance was referred to arbitration after a period of over one year had elapsed from the date of the Stage Two reply. ,. The union concedes that the mandatory time limits have not been complied with. There is agreement that the grievor instructed the union ' s Chief Steward in timely fashion to refer his grievance to arbitration, and that throughout the period of delay he continuously made inquiries from the Chief Steward as to the status of his arbitration. The Board heard evidence from the Chief Steward, Mrs. Pat Orr and the Union's Regional Staff Representative, Mr. James Fawcett. It is not necessary to review their evidence in detail. Suffice it to note that Mrs. Orr expected that Mr. Fawcett had already referred the grievance to arbitration on the -4- basis of a telephone call she made, and Mr. Fawcett was waiting for Mrs. Orr to send him the Stage Two reply before taking any action. It appears from their testimony, that Mrs. Orr and Mr. Fawcett are in disagreement as to each other'.s obligations with respect to referring a grievance to arbitration and the procedures to be observed. It is not necessary to determine for the purposes of. this proceeding as to which union official or officials if any are at fault. What is clear is that the grievor is not responsible for the delay in any way. i (.; ,. The union submits that despite the delay and the non-compliance with the mandatory time limits in article 27, the Board has jurisdiction 'to hear the grievance. While conceding by 'inference (by agreeing that the grievor is blameless) that the union is responsible for the delay, it submits that irrespective of the time limits,in the collective agreement, section 18(2) of the Crown ..-- ..,. ..-.--.Zmp_l_qye.es~ ~C.&.L.sstive .~.~._.~e_arsa.~,ning . . Act. extends to all employees a right to grieve certain matters and proceed to arbitration. The union counsel notes that this includes matters involving discipline. ‘2, i . . -5- In addition to any other rights of grie.vance under a collective agraernent, an employ22 : claiming, (a) that his position has been improperiy classified: (b) that: he has been appraised contrary to the governing principles and standards: or (c) that he has been disciplined or dismissed or suspended from his employment without just cause, 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 applicable under section 19. The union representative points out that this very issue has been the subject of a previous decisicn cf :?..;- Board in Re Xeelinq, G.S.B. OG45/78 (aFpiication for judicial review dismissed, 30 O.R. (2Ei 662, Giv. Ct.) and that the Board there held that the time limits stipulated in the collective agreement cannot deny a grievor the statutory right to arbitration provided in the circumstances set out in section 18 ! 2 t c f t T. e ‘4 c r The union acccrdingly submits KiTat t .3 1 s Frie.J:zJp<-e cl2arly falls w i t h i n section 1 ?, ! 2 : i c , c f i h 6 :. c c 3 r c:: that we ought to follow Re i;.+.?ling~. ,And dismiss the Employer's preliminary objection. Counsel for the Employer rSCOaniZes that &~ce.+~iin~~ supports the union's position, and further c !-. ;1 t 3 r. application for judicial review of that Board z!?cision was dismissed by the Divisicnal court of Oncaric. Neverthelegs. she asks us to not follow &ersc>.Ln.g because it is based on a WYOng interpretation of the Act. Secondly, counsel submits that the board shcul find that the Employer's Stage Two reply was accepted and that the grievance was abandoned prior t 0 t h 2 filing of the grievance. Finally, counsel submits that the Board should decline to hear the grievance quite apar't from the non-compliance with the time limits in the collective agreement because of the unreasonable delay and the inherent prejudice that flows from that unreasonable delay; prior decision. While this Board ~SS srLiir.,d char “T;:?rd may be exceptional circumstances where an eariisr decision of this Board might be reviewed" , (&._9=l_~k.~... et al. 1276/87 et al. May 3, 19aa,, such exceptional circumstances do not exist here. On the contrary, the upholding of the Board decision by the Divisional Court precludes an argument that the .__._.. Reeling decision is wrongly decided so as to cause us to decline following it. The employer's second ground also fails. Unlike in cases such. as Francis, 1528/86, here there is no express withdrawal or abandonment of the grievance by the union. In contrast, counsel invites the Fisard. to infsr abandonment from the passage of time ar*d 1I1ilct1cn. However, the evidence does not germit s~lcn an inference. The evidence is that the Chief Steward beii;zv& throughout that the Regional Office was acting on the basis of her request over the teiephcne :hat th? a~~lttcr be referred to arbitration. At no tzme wzs t'hd .yr: .~':a: ;Id,.,ised that ':h? unwon ,gould net 5? ~:?;~J<l~c"rng !.,'1'::1 ':I.' 0 r i e 7: a n c 2 . Xor is theri- any ?vld.?nc? 'th;l'. t 2, :: c: r 1 ,:i .,' ,3 I- had at any tonne accepted the SCi?P TWO rcpiy .snd knowingly abanZon?d his right to pr@?c:ed to 4 r I? i t r J f 1, i‘ 1; The onus is &on the e!I:ployer to cstablis!: ab~>ndonm~:n: -3- and that onus has not been satisfied. Counsel for the Employer finally SGbn:i%S that c;-.; Board should consider the delay r*ar; as ;r: ;f the merits of the. case and finds it to be inarbitrabie because of the prejudice inherent as a result Of ciz, i..* delay. However, the only "prejudice" SP2C ifically relied on by the employer was that the allsgstions against the grievor created a sensitive and emotional situation at the workplace and that the litigation of this grievance at this time will likeiy recreate that situation at the workplace. In our view that is not a reason to decline to bear this grievance. The employer has not satisfied us that the delay has in an-~ way prejudiced the presentation of its casa. There 1.s no suggestion that any witnesses are now unava:iaSLr. kny prejudice that may result from "fading memories" is minimised by the existence of records and transcri;cs resulting from the Employer's investigation inro rl1.z alleged misconduct of the grievor. t,J)-,iic ic 1s '.L';:: CP..lC 5:-.t2re 1s s13nc ~r.h~ires-nfz prejudke :; __ 2 'i I .: :, :: ; :: L :, 7 d?iay of one year, c .rl 3 I; .mus 'I t .2 .,.! L 1 ,yf .ti. 2 ;: aL;alr.sr I:.- grievor's compecirKj inKcresr. fi;; his *;lffi-red fj,.:..l::z; 21 LOSS and a reduction rn job s t i, I; I: E II n ^ Cjq p;ssi',c i .. 1 ^ *~ loss SGf repuratiC:-l. I;eccio:l iJ,2i It:) Of Cht? <~F,qh.c~ Employees Collective Bargaining Act, explicitly gives the grievor a right to have an issue of discipline reviewed by the Board. We have no evidence of prejudice as would justify denying the grievor this important statutory protection. For all of the foregoing reasons the Board hereby determines that this grievance is arbitrable. The Registrar is directed to schedule this matter for hearing on its merits, in consultation with the parties. Dated this ?ind day of August, 1988. mce h'imal V. Dissanayake Vice Chairman L. Turtle Member