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Home My WebLink About1988-0236.Agnew et al.88-11-08 ON TARIO E~PL 0 Y~$ DE LA C~ URONNE ~' ~" CF~OWN EMPLOYEES DEL'ONTARIO GRIEYANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST. TORONTO. ONTAR;Q M5G ?ZS- SUITE 2100 TELERHONE/TE£1~PHONE 150, RUE DUNDAS OUEST. TORONTO, (ONTARIO) M5G 1Z8 · BUREAU 2?00 ~4 ~6) 598-0688 0236/88 IN THE MATTER OP AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before T~E GRIEVANCE SETTLEMENT BOARD (.~ee appendix attached) Gr]evors - and - The Crow~ in ~ght of Ontar~ !Ministry of Oorr~ctlonal Cer~ices~ Employer Before: N.Y. DJssanayak~ Vice-Chairperson F. TayloF Member W,A, Lob~a~co Member For the Srfevors:. C.V, Horley Counsel GowllnG and Henderson Barristers and Solic~to?s For the Employer: J.F. Benedict ManaGer Staff Relations & Compensation ~JnJstry of Correctional ~ervices Hearing: ~-ptamber 6, 198a ?b~.~~ .~ a number of s~m~lar gr-:evances fi]ed by General D%:.ty Off3. cer$ employed at members of the bargaining un~ The grievances claim a v5 ..... of the overtime pay provisions_, o~ ~=,.:~e co}]ectlve agreement, At the commencement of the hearing, Mr. Beoedict for tbe ?}'..'.,!:,}ol;ey raised a preliminary objection that the grl. evances herein are J. narb3, trable, Whi/~ a number of ~n ,~rde~ to un.de~stamd th* part. j,~' respectlv'e pos.~.tJ, or..rs o:.' t~>{s prelf, minary issue, it is necessary to review ~he c~rcums~ances which preceded ~he filing of these grievar, ces, Sometime in Febv~zary of 1983, tNe Emp]oyeP ~ss~.~ed a me~orandur:~ as a ~esult of whlch the Ministry policy rega~"¢ing 'over%ime pay. was a!ter~d. The change adversely affecte~ ali of ba~ga~nln~ unit employees employed as General Duty Officer~ In April ~983, ~Jevances were launched by 15 of the a~fected employees, which iD. ,~t;e course proceede~ to arbitration before this Board. The pPesemt gF]evors were not among tho~e 15, By ~ ,¢ec~sJo=~ d. ated September 18, 1984, fN~r~Jnefter "tNe 7oi. 3f. ffe award"} the ~o~::-c% ~.~pheld the 3 grJev.~nce$. Subsequently, a fi~_¥ther d~n~s.~on dated the q~.~an~.~ of compensation. A~ a result of the f~rsl awar~, the Employer reverted to its fo~mer practice applied for ji;dJcia] review of the Board's This app.lication was dismissed by the court. Although they did not g~-;eve at the. t~,me, the premenr, grievors w~re equally affected by the Employe~'s informally d.iscus~ed thel. r complsint wi~h managemen~ short]v afte~ the change was Jm?]emented ~n February ~G~)~ ~ ~n"~-' ..... n~'~ Dot pu.r~]e it further by filing ~- wr!tten -- ~ ~ ...... .... _ ~s~-~ e%rance~ ware March 23 asd April ~, 1988. The imp~igned conduct of the Emp]oyer commence,~ Jn Febr~ar~, 1983 and ceased after the Joliiffe award issued in September 1984, It is ~he Employer's posi~on ~hat ~hese grievances f~led in March -April, 1988 are untimely and therefore not properly before the Board, Two of the grievors testifled as to why they did not file grievances when informal discussions with management d~d not resolve 'their dispute. Their evidence indicates thst they wished to proceed with grievances, bl~t wer~ advised by the un,on e×ecutjve that it was not necessary fo~ them to la,inch sep6u~te grievances because the ]ssu~ is being ~e~3t wJtb Jn the qu.i~e ur~der~tandab~y, ~elied ou that advice. Ope w~tness testified that s~nce the grievances of the "et al" covered al ] e~r~] n~,~ N**en the ~econd award came down in March 1988, the grJ. evors expected be compensated by the Employer Jn accordance w~tb thai award, However~ to their sub-prise the Employer took the pos~on ~hat the award only applied to ~be 55 n~med gvJ.~vors, and only they were compensated. It was et th~e po~n~, when ~he grJevors realized that the wofftd not apply the .l~,ll~f~ aw~=-~ to them t'nat f~led the grjevsnce¢ presently be~nre ~he Board. The .Jo" ......... ~' J.~.~.e awar6 dee.~,t $oIe]¥ with I.% gr. ievance$ D~-o~3~m~ mb.,.,~,.~.~iy e~C , ocedu~e$ for f~ iin~ of indj~Jdual grievances and un~or~ g~ievances, There Js no question that the 7~ ~ . ' ..u¢'¢iffe award aetermined indivld~.%al grievances add ~o~ a ~in~on grievance, Nevertheless, ~he gri~-n~-¢ relied on the good faith of thei~ EmDlnyer They assumed that Jf the Employer was found to have c.ontravened the co~xx ~ active ~g~em~nt ....... , it ........ wo~lld ~V~' e~lovee who s~.~.~: ~.~ iOS~ of ~,V~t~e pay resuJ, t of that contravention. As it turned out, that was r]ot to be ~ ~ ~. EmDl~,v~ wa~ not oreo~red tn ,.~e .~o~lJffe award, e~.,entho~.~gh Jt recognized that the i ..5 grJevors suffered the exact sam~ loss from the Employer's conduct as d.':.d the 15 o_vlginal grievors. Counsel for the union concedes that the time ]Jm.~ts for filing of grievances ~re mandato?y, This has been established 'by a long and consistent line of Board decislonm, See general]y, Parr 317/82 (Swan) , Goheen, 322.,'8? (Verity), Keeling 45/78 (Pr~tchard), There su,~ti~n ~nd c~tainl~ n~ evidence that the Employer ma~e any repres~D~'atJon tn the un,on oP the gr~evors that the Jolllffe award will be applied to them, The un~on's pos~t~on in th~s p]-oceed~ng s~mp]y is that these grievances are timely ~inder article 27, 2, 1, T~.at ~rtJc]e establishes a 20 day time limit for the of ir, d ~ v~.~ .... ~ - - - .......... ~,,_~ .... gr ~. evances by an employee whn be ] ieves ~hat be ham a "complaint or a d~fference". The time llm~ t js 20 days of "first becoming aware of the comn]a]n%" Counsel f~,~- the union poJr~ts o~% that these grievors first became aware that they wo~.~Id not be 1988 ~ - - ~ .......... .... o,.l~:se~ ~ubmits thmr~, that time began to r~n only a~ tha~ in Voron~ca Pierre 402.,'86 (Verity) the Board had this to say about article 27,2.1.: What is req%lired on ~he part of the employee to comply with the mandatory 20 day t~me l~m~t, ~$ kn_w~edge or awareness that there has been a violati~n or a posslble v~o]ation of tb~ provisions of the Co]]ect~ve Agreement, AFticle 27.2,1, contemplates the knowledge on the part o~ the employee - subject_ire conceot . Vice-C, ha~rman makes tha% po~n~ in 0FSEU - (P. Mi~che] Union Grievance) and.~j_9j, stry of Governmen~ Services, 3614/85 and ]6]5/85 at p. "Article =~ .2.1, establishe~ ~ time limi~ which does no~ be~tn to run untl] the employee first becomes aware of the complaint or dJffe~eDce, And the words complaint c,~ difference' refer 'commla~nts or d~'ferences between the part~es arising from the inte~fpretation, appllca~Jon~ adm-~nis~at~on or alleged contravent{on of th~s agreement' , (Article 27.3) . In o~h~F words, ~he time doe~ not begin to r~.~n until the emp] nyse js aw~re that there J~ a oomp.i~Int or d.~ florence ~.~nder ~o!:pse: fo:f the Union relied on Voronica Pier,_? and _ , ..~n.q?.._ 2~66./87 (B, Fisher) ar-. supporting his However, both cases a~-e cl~'a:.-iy distinguishable. In her right to f~]e a grievance on]¥ w?~en she spoke with chief Stewa.~-d 5 ~, ' ~u n~ Wabruary 25 19o6" I~, contrast, jn the p~g~% case it ]s c]esr that the gr~evors were aware of their ~-ight to f~le a grievance back ~n ]989. In fact, they Jnltlated the informal stage of the grievance procedure. They simply assumed, wrongly as it ~urned out, that the Employer woujd extend the outcome of the Jolliffe awaF~ to them without need on their part to f~]e their own grievances, In Sin~!, 6t page 5 the Board ~nund that up ,.intel January 5 ~ J 988, t~e grJ evor beJ J eyed that tb~ EmpJ ~yer bad m~de ~n error with rega~-d to his p~y which wil.i be corrected. ~t was only ~n January ]988~ ~h~: be became aware that the Employer was taking the position that he was not -~,t'*'ed~.. ~,.¢ to the claim, amd he _~]]ed a grievance soon thereafter, In contrast, here the grlevors discovered as early as 1983, following their ~nforma] dJ.~c~lss]on$~ that the Employer was denying any .l~abJlity to pay oveptlme as claimed, On ali of the evidence, we are necessarily driven to the conclusion tha~ the grievous became aware of a difference o~ comp]alpt auislng out of the collec~ive agreement back in 1983. Considering tb~ mandatory n~ture of the time limits in article 27.2.1 therefore, the Board Js bo~nd to fJDd that these g:-~e,~r~ne~ are %~.5~imel¥ a~d the~Pe~o~e ina~bitrable, Court,e3 far__ the union urged ~-,.::e Board .~, _find the g?ievances timely because ~o not find so would result a gPea~ ~njus~ce. We agree that th~s case cries for raj. mess and justJ, ce, These grJ. evors h~ve been den~ed over~Jme pay, which accoFdJng to ~he Board's interpretation of the collective agreement in the Benedict conceded that the position of these was ~n6~stlnguJshsb]e from the pos~t~on of the who weFe cnm~peD, s~ted under the Jolliffe award., The Em~lO~' dn~s nnt' r:]~3~ t~t the d~lav ha~ ~n anv way I prejudiced J.~s ability to present its case. On the contrary, Mr. Benedict all b%~l conceded thai 5n light of the Jolliffe award, it has no defence on the merits of these grievances. These grlevors are being penalized partly because they received bad advice from the bargaining agent and partly because they trusted their Employer to be fair, In the res,ilt, some employees received compensation, while others ]n the exact same position did not. The Board agrees that the result is unfair, and also that the Employer's position Jn th~s regar~ is ~/nlikel¥ to promote good labou~ ~elat~on$ in the long run. Despite the temptation Jn these circumstnnces to provide ~elief, we m~st, albeit re3 ....... ~ ~ ~ that ,.~ .... ~nt~%r, agree w~th Mr. Be~ed~ct'~ this Board's role ~ not to dispense j%~stJ, ce apply the de~3 ~truck by the partJe~. The so%~rce of the Board's 3ur~sdlction ~.s the c~own Employees Collect~vfl Dar~ain~q~.~A~. In ~9~, 94/?8 (Swan), the Boar~ stated that the Board's 3urisdiction stems from section ]9(]) of the Ac~, which empowers the Board to hear and determine differences between the parties concerning the interpretation, application, administration or alleged contravention of the collective agreement, and by Section ~8 (2) of the Act under which employee grievances concerning classification, discipline, dismissal or s~]spens~on may be referred to the Board. Concerning its jurisdiction, the Board stated: "We have no other a;lthor~t¥ to ~ntercede between the Dau~ies: we do not have any inherent jurisdiction to do justice - or what wa may concei~.~e to be j~.~stlce - to provid, e remedies, no matteF how desperately _particular case may c?y out for relief", and that any ~ecision rendered beyond the l~mits of the Board's legal authority would be a nullS, ry, ID. view of the foregoing, we hereby uphold the Employer's ob3ect~on to the timeliness of these grievances~ and accordingly the same are hereby dismissed. 10 Dated th~s 8th ~a¥ of November, ;988 in HamJ]ton, Ontario - ~ Nim,.!~7. £,issanayake Vice-Chairperson ......... 'C~.' {Addendum F. Taylor Member W, Lobraico Member APPENDIX Agnew, G.$, Carson, W~l]Jam Henry Doiron, Deborah Doiron, William Daniel Due, Anita j. ~a~_ ~aoher, Terry Gallas, Randall Patrick ~¥ndman, ,lames KJe]y, Allan J. Kondrack~, WladlmJr Lauzon~ Anthony Leach, Lawrence L, Leggott, W]lt~am D, Lesch~ak, Kar~n E]ke Nanta]s~ Larry Nantals, Nancy Maj-, David Ml]]ette, Andre Myers, Michael J. Polya, Zoltan R~ches, Patrick A, Row]ands, 3chh St, Thomas, Murray Vet~e~, Jan Ward, Rona]ee Walls, William John ADDENDUM This case was on alt fours with "Iqellon et al" except that the grievors in this case were misinformed and as a result, failed to submit their grievance in the time frame provided for in the collective agreement between the parties. Regardless of the results of this award I would hope in the interest of good laOour relations, the Ministry of Correctional Services would reconsider its position and apply the "Mellon et al" award to the grievors who worked in the same institution. F. Taylor, Member