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HomeMy WebLinkAbout1988-0320.Ronkai.88-10-28 ONTARIO EMPLOYES DE LA COURONNE .,,.~ .-, CROWN EMPLOYEES DE L'ON TARtO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MsG 1Z8- SUITE 2100 TELEPHONE/T£L~PHONE 180, RUE DUNDAS OUEST, TORONTO, ~ONTAR~O) MSG 1Z8 - BUREAU 2"100 (#16) 5,98-0688 0320/88 IN THE MATTER OF AN ARBITRATION Under THE CROWII EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Zoltan Ronkai) Grievor and The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: P. Knopf Vice-Chairperson I. Freedman Member H. Roberts Member For the Grievor: L, Trachuk Counsel Cornish & Associates Barristers and Solicitors For the Employer: L. Oudyk Staff Relations Officer Staff Relations Branch 14inistry of Correctional Services, Hearing: September 20, 19g$ DEC~SION '~"hls is a grievance brought on behalf o~ uhe grievor, Zoltan RonKai, alleging a violation o~ Article 27.l o~ the collective agreement. Arti'cle 27.1 provides. It is the intent of this Agr=_ement to adjust as quickly as poss~Ole any complaints or differences b~tween the pa~ties arising ~om the interpretation, application, administration or alle~ad contra~,~ntion of ~his Agreement, including an~, question as to whether a matter is arD[trable. At the outset of th~ proceed~n.Ds, ~he Employer raised a preliminary objection as to t;%e ar'.Ditrability of this ~rlevance. The par~ies a~reed t~at this Board should deal wi%.h nhe jurisdictional mat%ar an,4 rend-~r a ruling upon i~ De,ore any consideration of the merits shoul~ De entertained. ..': After hearln~ submissions from co~ansel, the Board rendered a~ oral ruling on th~ jurisdictional matter to the parties at the hearing. Tala award confirms the o~ai ruling which was re n'de re d · In a nutshell, the grievance involves an allegation by the grievor that the Employer violated Article 27.1 Dy virtue of its conSuct with regard to a previous grievance. The Board was'~'advised that the grievor had filed a job posting grievance which involved a complaint that the 9rievor had not Deen interviewed in a competition for a managerial position. The grievance had proceeded through various sta~es o~ the grievance procedure under the collective agreement until the pre-hearing stages. We were advised that the 9rievor wo~ld testify that'he had been assured in the early d~ys of thc process t~at management Jid not inten~ to qu~sL~on the arOitrabiiity of the ~o3-co~petit~on grievance. However, at ~]e pre-hearing sta~e, managemant did assert a challenge to the arDitraoility over a competi tion for a managerial position, fhe grievor would allege that at that stage he realized that his grievance could not succeed. However, he would also allege that he was prejudiced by management's failure to ad¥~se him earlier that they would take such a position regarding juris.Jiction. The prejudice which the 9rievor would claim was that he was lulled into a belief that his grievance would De able to'proceed to arbitration and that this belief prevented him from pursuinG any other remedies that may have .seen available to him during that period. Thus, the Grievor claims that ~he Employer violated Article 27.1 by failing to resolve the grievance ~ a manner which could De Jescribe.J as "as quickly as possible". The remedy the grievor was s~ekinG in [n.~s case was $100,000 in damages. The Employer objected to the arbitrability of this grievance ass_~rting that Article 27.1 was merely a statement of intention that does not c~eate any substantive rights. It was submitted that this Boa£~J only has jurisdiction under the Crown Em~lo_yees Collectiv.= Barg_~inin9 Act and the collective agreement. But nowhere in ei thsr of these empowering documents is found any requirement that a party advise the other party of any position regarding jurisdiction of a Grievance. Thus it was said that this Board of Arbitration has no powers, to adjudicate on a matter which was not within t~e Crown E..m_~lo~ees_Collec~ti~e Bargai_ni.n_(.[ Act or the j collective agreement. In essence, the Employer argued that there was no oasis for the Grievance and that it ought to be dismissed as a preliminary ma~ter. We were referred to the folio.wing cases re~ardinq jurisdiction: Halada~ v. Mi_nistr__~ of Indust~.][ and Tourism, GSB File No. 94/78 (Swan); Retell, Wholesale anJ .De_~oa~rtmen._t_$tore Union, Local 414 and Retail, Wholesale an.J De~a_[?j_eD~ Store Union R~pr~sentatives Association of Ontario (1980), 28 L.A.C. (2d) 164 (MacDowell); and C.N. Telecommunications and C.N. Telecommunications Union - United Te.l_egra__~h Workers,_ Local 43_ (1976), 11 L.A.C. (2d) 152 (Rayner). On behalf of the grievor, counsel took the position that it is reasonable to assume that management would consider a matter to be arbitrable until ii notifies the Union otherwise. While the parties do not have to take a position as to whether or not a matter is arbitrable at any stage, it was stressed that ~he Ministry could nave objected to a£bitraDility at any time. Its failure to raise the arbitraDility issue at the earliest stages lulled the grievor into a Deiief that the job posting grievance could proceed to a hearing on its merits. It was further argued that any delays caused by the Employer's failure to state its position as early as possible should not be allowed to prejudice rights of the grievor. We were told that the grievor was led to believe tha~ he could not seek redress through another tribunal until the grievance i?roce.Jure had been exhausted on th.=' job posting grievance. We were also told that the 9~ievor believes that the Ministry's failure to promptly advise of i~s position has detrimentally affected the 9rievor,'s relationship with management because he feels he was "misled". It was stated that the grievor now feels he would De afraid to take a management position because he would not feel that his job would De secure. The Decision It is the conclusion of the Board that Article 27.1 does not create any substantive obligations upon the parties. Specifically, it does not create ~ny obligation of the parties to state any posit~ons at any stages o,f the grievance proceJure. This was properly conccde] by counsel for the Union and is properly supported Dy t. be jurisprudence iss'ued by Lhis Board. the positions ~aken by part[es in the various sta~es of the grievance process may well affect the positions that they can take at the arbitration hearing. The positions taken by the parties often do influgnce the employer/employee relations for better or for worse. But the position taken by a party at any stage in th~ grievance 'process is not per se a matter which falls within the scope of ar~itrability. Therefore, the Board agrees with the Ministry that the grievance does not 'Jisclose any ma~ter which falls within the interpretation, application, administration or alleged contravention of the agreement. Therefore, the preliminary o~jection is upheld ,and the grievance is dismissed. Further, we feel it is import_aLit to state that although we believe we do not have any jurisdiction to dismiss a case on the grounds that it discloses no facie case, we do feel that some comment should De made. On the basis of the submissions put to us Dy the grievor and his counsel as stated above, we have no hesitation in concluding that even if everythin9 the gri3vor alleged could De proven, he' would not succeed in achieving any rsmedy. We say this because he would not be able to establish that any acts of management objectively prejudiced him in any meaningful way. The only prejudice he claims to have suffered is delay. But there is no suggestion that any passage of time has affected his ability to pursue remedies elsewhere. We feel it only fair to state that opinion at this stage in the proceedings. We would not want the 9rievor to think that he could have embarked upon an arbitration that could only De expected -fail. However, our opinion as to this matter has not influenced our conclusion that the Grievance itself-Does not disclose any matters which ara arbitrable. ~here~ore, for the reasons stated above, the preliminary objection is upheld and the 9rievance is dismissed. DATED at Toronto, Ontario, this 28~h day of October, I988.