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HomeMy WebLinkAbout1998-0035.Narine-Singh.99-09-29 DecisionONT/lRlO EMPLOVES m 14 COURONNE CROWN EMPLOYEES DE L'OMARIO GRIEVANCE COMMISSION DE mm FZ:kEMENT R~GLEMENT DES GRIEFS 180 DUNDAS STREET WEST SUI7E 600, TCr7ONTO ON M5G 128 TELEPhONVT~LEWONE (3161 375-1388 780 RLE 3UNDAS OUEST BUGEAU 600 TORONTO (Oh) M56 IZE iACSIMILVTELECCP.E (4161 326-1398 GSR # 0035/98 OPSEU # 98C158 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOIAKD BETWEEN Ontario Public Service Employees Union (Narine-Singh) Grievor ~ and ­ ,. The Crown in Righr of Ontario (Ministry of Education and Training:i Employer BEFORE D.J.D. Leighton Vice Chair George Richards Senior Grievance Officer Ontario Pbblic Service Employees Union FOR THE Lucy Siraco ErnLOYER Counsel, Legal Services Branch Management Board Secretariat HEARING June 2, 1999 Written Submissions received September I, 1999 ... The grievor, Sherry Narine-Shgh, was a Purchasing Officer with the Ministly of Education and Training (MET) unt.il, as a result of downsizing and restruckring, her position was declared surplus effective March 20, 1997. All the Purchasing Officer positions were declared surplus. and the new position of Contract Management Consultant at a higher classification, AM-17, Sclicdule 6, was created. The grievor applied for the new position hut was not successful. On January 21, 1998 Ms. Narine-Singh grieved as follows: I grieve the removal of my position from the bargaining unit and the hilure of the .. . employer to assign me to the position following its transfer to AMAPCEO and the resulting layoff. The grievor is welting to be returned to her home position with monetaiy compcnsaiiod for pain and suffering. At the outset of the hearing, Counsel for the employer made a motion to dismiss the grievance as untimely. The board heard the following evidence only for the purposes of deciding the motion to dismiss the grievance, TI% EVIDENCE Ms. Karen Owen began as Manager of Purchasing at MET in Ji.ily of 1996. She was Ms. Narine-Singh's supervisor. Changes in the nature of the Ministry's business, the nature or delivering <..service and financial constraints, led to the downsizing and reorganization of the unit. The Mhistry created the new position of Contract Management Consultant to met thr. new method of service delivery and decided that it no longer needed the Purchasing Officers. The Conlract Management Consultants had to be knowledgeable about contracts, They need strong planning, negohtion, and analytical skills. Page2of 13 According to the new job specifications, the Consultants had to be able to provide expert advicc to "Ministry clients in the development and management of contracts for the acquisition of a wide variety of goods and services, consistent with the govcmment/ministry business direction. " Ms. Owen testified that the Purchasing Officers had been involved in the administration of the tendering process. While they gave some advice, it was based on the directives and the responses were generally routine. Ms. Owen restificd that as early as July 1996 she told thc Purchasing Officers that changes were coming because of the reorganization and it would be necessary for them to enhance their skills if hey were going to continue working in the unit. In February of 1997, the Purchasing Officers were told at a meeting that the Contract Management Consultant positions had been created. Although she was unahle, at hat point, to tell them what the classification would be for the new jr?b, Ms. Owen did indicate hiat the competition for the new position would occur in March. There were three positions available. Two of the seven Purchasing Officers were successful in the competition, although one person chose not to take the job. Six Purchasing Officers were therefore declared surplus. The grievor was not successful in the job competition. Ms. Owen testified that the grievor was extremely disappointed and upset that she wasn't successful in the competition, She was also upsrt that she was declared surplus. Ms. Owen testified that,, the grievor expressed lie opinion that she was a superior candidate, giv1:n her education and experience. According to Ms. Owen, the grievor was of the view that she should have been successful in he Job competition. Ms. Narim-Singh also told Ms. Owen that she wanted continued employment and that she would pursue that aggressively. Ms. Owen also testified that the grievor spoke with Mr. Zuschlag, one of the Purchasing Officers who did file a grievance because he was surplussed. The grievor never spoke -. , of fiiing 3 grievance herself. Ms. Owsn was of the view that the grievor wanted to pursue whatever options she had for continuing employment within the OPS. Page 3 of 13 .* .r Ms.Narine-Singh went on a sick leave in early April which lasted for six months. Ms. Owen gave evidence that the grievor frcquently came into the office while she was on her sick leave. She met with Ms. Narine-Singh to counsel her on interview techniques and the interview process. During this discussion the grievor indicated to Ms. Owen that she felt wrnriged by the nlinistry fur not getting the new position and argued why she was a good strong candidate. Shc returned to work in October on a half-time basis for eight weeks, and then resumed full-time work at the cnd doctoher. When Ms. Narine-Singh returned to the workplace she was instructed to spend her time concentrating on a joh search. She was not given my new work to'do. Ms. Owen testified that the new work of the Contract Management Consultants had begun quite quickly after the last cf the Purchasing Officers left the workplace in late April. She said that initially there was a period of time where remnants of the old position still existed. The Administrative Assistant took on some of the duties for a time. On cross-examination Ms. Owen testified that the grievor did not question whether the Contract Management Copsultmtjob was more conipkx work, but she did thhk she could do the job. Ms. Owen testified that by Janualy of 1998 only remnants of the old job existed and the biggest proportion or the job were the new functions as indicated in the Job specifications. The grievor would have seen remnants of the old job, that is the processing of documents that still had to he done, gradually decreasing from April to January. Ms. Owen testified that she spoke to the grievor about the new position and the job competition before Ms. Narine-Singh went on vacation in February. At this time she asked for and received the grievor's resume. When Ms. Narine-Singh returned from her vacation she was given the last possible interview spot in order to allow her to prepare for the intewiew. She wasn't required to vork, but simply to prepare herself for the interview. Ms. Naiine-Shgh testified that she joined the OPS in 1975 and the Ministry of Education in 1995. She recognized that with the merger of the Minisrry of Education and Training that there would Page 4 of 13 *.. he downsizing. The gricvor testified that she was in Trinidad For the month of February un holiday and the position of Contract Management Consultant was advertised when she was on vacation. She said that she would not have gone away had she known a new job was going to bc posted. She was ahsolutely certain that Ms. Owen had ncver said anything about her job changing until the debriefing after the grievor did not get the new job. MS. Owen told the grievor that she didn't have the required skills fur the new position. It was the grievor's evidencc hat this was all such a shock to her that it led to her sick Icave. While she was on sick leave, she doesn't.remernber coming into the office, although she may i- have come in on a Saturday. She returned half-time in October and testified that she was full-time as of early December. The grievor agreed with the evidence of Ms. Owen that she was not required to do any work when she returned to the unit in October. When she returned she observed a whiteboah on the wall with Wie "same old projects" that she had worked on before her sick leave. Although she didn't remember the -. specitks, she concluded that things were the "same as usual." She observed a requisition form on one of the Contract Manageiiient Consultant's desk and she concluded at that time that nothing had changed in the job. ,. The grievor testified that she had no reason after losing he competition for the consultant's position to disbelieve Ms. Owen's statement that the position was new. However, by January of 1998 she said it was not true that only remnants of the old job were left. She did not see any difference in the new job. The grievor commented that YO% of what Ms. Owen had said was not truc. She was of the .view that the whole reorganization of work was a farce. Ms. Nxine-Singh stated that she was unaware ..".. that Mr. Zuschlag had grieved his surplus notice. In examination-inxhief the grievor denied giving Ms. Owen he]-resume before going on holiday, but acknowledged in cross-examination that she had given her the resume a$ part of a "package." Ms, PageSof 13 Narine-Sinph was further questioned about why she gave her resume and employee information to Ms. Owen before she wcnt on holiday. The grievor stated thar Ms. Owen had asked her for it. Counsel asked the grievor why she hadnut asked Ms. Owcn why she had asked for the package. She said she didn't know. Thc grievor said that she thought it was about the downsizing. She commented further that she didn't ask and that anything Ms. Owen does is Strange. Ms. Narine-Singh acknowledged that she had read Uie job posting for the Contract Management Consultant positions. Ms. Owen had told her that she would get an interview for the position. She was interviewed two to thee days after returning from her hhliday. Counsel said to the grievor that she must have seen in the job posting that it was an AMAPCEO position and a higher classification with a different name. The grievor said "she still thought it was the same job." The grievor states that she thinks now that the entire purpose of the new job was "to get around the OPSEU people," A,fter she received her surplus notice, and after the dehriefing with Ms. Owen on March 20, 1997, she did try to find out where the successful candidates had come from. She wanted tu kind out whether or not they were more senior than her. When questioned about corning in during her sick leave the grievor stated that she didn't reinember when she came in, but that she may have come in during the week to use the computer. She.. .. acknowledged that she had applied for some jobs during the sick leave. She was interviewed for some positions after she came back to work. When questioned about the old projects listed on the whiteboard, Ms.Narine-Singh acknowledged that she would have seen these when she came in during her sick leave period. When cross-examined about reading the requisitions from one of the Consultants desks, Ms. Narine-Singh said ..,. that she didn't pick them up, but she did read them. She had used her conmion sense, what she had observed and experienced, to conclude that :he work had not changed. In January she concluded that thcrc were no significant changes and so she filed the grievance. Page G of 13 THEEMPLOYER'S SUBMISSION Counsel for the employer, Ms.Siraco, argued that the grievance had not heen filed within the thirty day time requirement of Article 22.2.1 of tile collective agreement dated January I, 1994 to Septcmber 31, 1998 (the Red Book). Article 22.2.1 providcs as follows: It is the mutual dcsirc OF the parties that complaints of employment be adjusted as quickly as possible and it is understood that if an employee has B complaint, the employee shall discuss it with the employee's immediate supervisor within thirty (30) days after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee in order to give the immediate supervisor an oppornrnicy of adjusting he Complaint. Counsel argued that while the time limit provisions of the 1992-1993 collective agreement had been interpreted as requiring arbitrators to apply a subjective test as to when a grievor becomes aware of a grievance. that Articlc 22.2.1 of the Red Book had been interpreted as requiring an objective standard to be applied. Ms. Siraco relied on Joly and Ministry of lhe Solicitor Genzral and Correctional Services, 1009/97 (Brown) and Upshaw and Ministry of Health, 2163197 (Abramsky). In summary, it was the employer's submission that the time limits of the 1994-1998 collective agreement are mandatory and require an objective standard to be applied in the determination of whether or not 3 grievance is timely. If the grievance is not timely, it is not arbitrable unless the hoard exercises ..,.. ., , its discretion to extend the time limits pursuant to Sub-section 48(lh) of the Labour Relations Act, S.O. 1995, c.1 Sch. A. Counsel argued that when bls.Narine-Singh received her surplus notice on March 20, 1997 she either was aware or ought to have been aware of her grievance rights. Counsel submitted Page 7 of 13 that there was no reason for the board to exercise its discretion to extend thc time limits, that the employer is prejudiced by the delay, particularly since it's been two years since the surplus notice, and the workplace has changed radically. Counsel argued that where there are inconsistencies between thc grievor's evidence and the employer's evidence, that I should prefer the employer's evidence. She argued that the grievor was vague ahout dates, that initially she denied giving a resume to Ms. Owen before she went un vacation, but then admitted in cross-examination that she had. Counsel argued that this suggested that the Grievor was, in, fact, told about the job competition before she went away on her vacation. She was of the view that it was more likely that Ms. Owen's evidence retlected what had happened rather than the grievor's view. She submitted that a ten month delay is simply too long and the employer is entitled to the protection of die collective agreement. THE' UNION'S SUBMISSION Mr. Richards argued for the union that whilc the time limits under Article 22.2.1 are mandatory., , , the board has the discretion because nf Sub-section 48(16)of the Labour Relations Act to extend thc time. He cited Bccker Milk Co. and Teamsters Union (1978) 19 LAC!. (2d) 217 for a full discussion on the factors to be considered in extending time limits. MI. Richards agreed that Article 22.2.1 introduced an objective standard for assessing whether a grievance is timely. Mr. Richards argued that it had not been shown in the evidence that Ms. Narine-Singh had failed ._" to file her grievance within the thirty days. He argued that it was not the IaynfFnotice which triggered the grievance in this casc. It was the fact that the job had not changed whicn led to the grievance. He argued that initially Ms. Narine-Singh believed that the surplus was valid arid had no reasun to challenge Page 8 of 13 the layoff notice. It was only with the passage of time that she came tn disbclicve the notice. A collection of impressions findly led her to the conclusion that the layoff could not be justified. In the union's submission the question is whcther or dot the grievor took too long to come to the decision that there had heen no change within the job. Mr. Richards pointed out that the grievor was OII sick leave for six moriths and when she returned to work she was working only half-time. Thus he stated she was only approximately one month late in filing her grievance. Mr. Richards aim argued that the grirvor relied on the representation made to her that significant changes were being made to the work and to the job. These representatlons made to her in March of 1997 were relied upon hy the grievor to her detriment. the detriment being that the employer could now argue that she is out of time to file the grievance. Therefore, in die union's submission, the employer can not rely upon the strict legal rights of the collective agreement as to the timeliness of filing the grievance. Mr. Richards argued that the board has the discretion to extend the time limits and that there were good reasons for Ms. Narine-Singh's delay. First was the belief that there would be chafiges in he job and that time was needed fnr the change. The second reason was the shock of being laid off. This led to Ms. Narine-Singb's illness and sick leave. Because of the shock there was an inability to function and recognize her legal rights. He argued dxit there had been no eviderlce of lack of due diligence. ~.,. , Further, the nature of the grievance involving a surplus notice and loss of a job was cornpelliiig reason m exercise the discretion to extend the time. He also noted the union's concern about the abolition of a union povitlon. Finally, Mr. Richards argued lhat there had been no evidence of prejudice to the employer. He argued that while it is easier to leave things alone after two years, the only significant time period to be considered was between March 1997 and January 1998, arid that the delay after that >\,.. <_ should not be factored into the decision to extend the time limits. He pointed out that Mr. Zuschlag had filed a timely grievmce with regard to his surplus as a Purchasing Offrcer so the employer was on notice Page 9 of 13 that there was a legal challenge to the surplus of the Purchasing Officers. In summary, the union argued that the motion to dismiss the grievance should be denied. DECISION The first issue to decide is whether Ms. Narine-Singh's grievance is timely. In order for it to be timely under the provisions of Article 22.2.1 she must have discussed die complaint with her immediate supervisor within 30 days of the events which give rise to the grievance or within 30 days of when the complaint has come "or ought reasonably to have come to the attention of the employee." The events which give rise to Ms. Narine-Singh's grievatice occurred when she was unsuccessful in winning a competition for the new position of Contract Management Consultant arid was consequently declared surplus on March 20, 1997. She did not file her grievance until Januari 21, lYY8,nine months beyond the limit. The next question to consider IS when the complaint came to her atlention or when it ought reasonably to have come to her attention. It should havc come to her attention when she was given her surplus letter, and the evidence is that it did. The evidence of Ms. Owqi that rhc grievor felt "wronged;: by the employer's decision not to promote her and to declarc her surplus was uncontradicted. Ms. Owen testified that Ms. Narine-Singli told her when she gave her the surplus notice that she should have gotten the position. Ms. Owen's evidence is that the grievor considered herself the superior candidate because of her experience and education. Ms. Narine-Singh repeated this opinion to Ms. Owen on several occasions, including visits to the office while she was on sick leave. Ms. Owen's evidence was clear and +,. concise on this point. While the grievor denied or contradicted most of Ms. Owen's evidence, she did not refute feeling wronged. Thus I find Ms.Owen's evidence more reliable, and 1have to conclude that Page 10 of 13 thc events which gave rise to her grievance were brought to hcr attention when she rcccivcd her surplus notice. I am not persuaded by the argumcnt that the grievor's complaint is triggercd by her conclusion, after returning to the workplace for several months, that the new job was no different than the old job and, therefore, her surplus notice was not justified. Ms. Narine-Singh testified that even when she saw the job specifications for the Contract Management Consultant position she considered it to be the same as her job as a Purchasing Officer. She held that view even though it was at a higher classification and in a different union. She was shocked when she did not get the job. Again. as noted above, she thought she ought to have gotten the job. It was also her evidence that when shz returned to the workplace in October of 1997 she saw the "same old projects" on the whiteboard. She acknowledged on cross­ examination that she had seen these projects on the whiteboard when she came into the office during her sick leave. It is not possible to reconcile this evidence with her evidence that she realized in January that it was the same job. Furlhcr, thc gricvor was not candid in her evidence about giving her resume to Ms. Owen and whether she was told about thc changes to the workplace befflore going on holiday. Initially .~ she said she had not given Ms. Owen her resume before going on holiday. Then she acknowledged in cross-examination that she had. She was evasive when asked about why she had given it to Ms. Owen.. , While these issues are not material to this decision, her lack of candour leads me to doabt her evidence that she only realized that the new joh was the same as her old position in January. The evidence supports a conclusion that Ms. Narine-Singh held the view from before her surplus notice that the new job was the same: it is simply not credible that she came to this conclusion in January There was no evidence that the grievor was incapable of filing her grievance in a timely way or .+" that she was unaware of her rights. AlUiougii she went on short-term sick leave in early April, as 11oteQ earlier, she was well enough to come into the workplace to prepare job applications. Even if the time on Page 11of 13 sick-leave was to be discounted, which I donut think should be dnne'in this case, the grievor's complaint is still not timely. Having decided that the grievance is not timely the next issue to address is whether I should exercise my discretion to extend the time. Section 48( 16) of the Labour Relations Act provides arbitrators with the discretion to extend the time limit found in the collective agrcement, if there are reasonable grounds for the extension and the opposite party will not be substantially prejudiced by allowing the grievance to proceed. The factors to be considered in deciding whether there are reasonable grounds for extending the time limits were outlined in Beckcr Milk: ... (i) the reason for the delay given by the offending party; (ii) the length of the delay; (iii) the nature of the grievance. If the offending party satisfies an arbitrator, notwithstanding the delay, that it acted with due diligence, then if thei-e has been no prejudice the arbitrator should exercise his discretion-in favour ,of extending the time­ limits. If, however, the offending party has been negligent or is otherwise to blame for the delay, either in whole or in part, the arbitrator must nevertheless consider the second and third Factors referred to above in deciding if reasonable grounds exist for an extension of the time-limits. Mr. Richards argued that the reason for the dflay in this case was that the grievor did not come to the conclusion that the new job was the same as the old one until January 1998. Further, that the grievnr believed the employer's represcntations that the new job was different, For the reasons noted earlier, I am not persuaded that this is sn. Ms.Narine-Singh formed the view that it was the samc job before she interviewed for it. Hcr cvidcncc of realizing that it was the same job in January contradicts .,. . this. Tius there is no credible rcason For the delay. The length of the delay in this case is nine months ­ significant. given the parties' clear recognition in Article 22.2.1 that grievanccs should be dealt with as quickly as possible. The nature of the grievance is serious. It is not the smie as a dismissal for cause, Page 12 of 13 but it could lead to loss of the grievor's job. Howevcr. thc nature of thz grievance is not enough in this case to justify the exercise of the discretion, given the length of thc delay arid the lack OF reason for it. Although there was no evidence of prejudice to the employer arising frim the delay, I am not satisfied .. that the grievor actcd with due diligence in bringing her grievance forward. Considcrhg all OF Ihe factors I have decided not to exercise my discretion to extend the time for filing the grievance. Thus, having carefilly considered the evidence and the submissions of the parties, I hereby dismiss the grievance as not timely. Dated at Toronto this 29th day of September. 1999. D.J.D.Leighton, Vice-Chair Rage 13 of 13