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HomeMy WebLinkAbout1988-0960.Connelly.89-12-01 · ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ON TARIO GRIEVANCE C,OMMISSION DE S I'rLEMENT REGLEMENT 180 DUNDAS STREET WEST, TORONTO. ONTARtO. VSG tZ8- SUITE 2100 TELEPNONE/TE!.~PHONE fSO. RUE DUNDAS OUEST. TORONTO. {ONTARIO; M5G 1,7.8- BUREAU2100 ~4~6) 598-0685 960/88 IN THE MATTER OF AN ARBITRATION Under THE CROWI~ EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (A. Connetiy) . Grievor - and - The Crown in Right'of Ontario (Ministry of Health) Employer Before: N.V. Dissanayake Vice-Chairperson i. Thomson Member i. Cowan Member For the Grievor: K. Whitaker Counsel Ryder, Whitaker, Wright and Chauman Barristers & Solicitors For the Employer: 7I. Failes Counsel winkler, Fi!ion and Wakely ~arristers & Solicitors Hearing: October 25, 1989 2 DECISION This is a classification grievance filed on December 1, 1982. At the outset counsel for the Employer raised two ma~ters. The first was a preliminary objection to the Board's jurisdiction to hear the grievance on the basis that the grievance had not been processed through the grievance procedure in the collective agreement. The second was an argument based on undue delay or laches. Counsel agreed'that these issues should be determined before dealing with the merits of the grievance. As already noted, this grievance was filed on December 1, 1982. On December !3, 1982, Ms. Brenda Snider, the Regional Personnel Administrator, wrote the following letter to the grievor. .This will acknowledge receipt of your first s~age grievance dated t December 1982. After discussions with your Union Representative, Peggy Douglas it has been agreed tha~ there will be a waiver of time limits in respect, to your grievance. The next contact was some 4 i/2 years later when Mr. Pat Rooney, a staff representative of the Union, wrote to Ms. Snider a letter dated June 3, 1987. Further to our telephone conversation of today please find a~ached a list of eight (8) classification grievances submitted on DecemDer 1, 1982 from the O.H.I.P. office in Os~awa. 3 I understand a waiver of time limits was agreed to at Stage One of the Grievance Procedure. Please advise as to the present status of these grievances. Also attached is a list of seventeen (17) classification grievances submitted, some on-April 25, '1986 and some on May 2, 1986 from the same O.H.I.P. office. Again, please advise as to'the status of these grievances. The list of eight grievances at=ached included the grievor's. By letter dated September 2, 1987,' Ms. Snider wrote to Mr. Rooney as follows: Let me first of all apologize for the delay in responding to your letter cf June 3rd, 1987. I have reviewed the status of the 8 classification grievances submitted on December 15, .1982, from the OHIP office in Oshawa and must advise that it is our opinion, that in the old series they are correctly classified. Further, these 8 positions 'have now been reclassified, as of December 31st, 1985, in the office Administration Group series. The other 17 grievances are in the hands of an~ arbitrator. Please advise if any future'action will be taken. The next occasion the Employer heard about this grievance was when sometime early in 1989, it received copies of the union's referral of the grievance to arbitration by the Grievance Settlement Board. On the basis of these facts counsel for the Employer claims that the grievance procedure set out in article 27 of the~co~iective agreement has not been followed. The relevant portion of that article'reads: ARTICLE 27 - GRIEVANCE PROCEDURE 27.1 It is the intent of this Agreement to adjust as quickly as possible any complaints or~ differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable. 27.2.1 An employee who believes he has a complaint or a difference shall first dlscuss the complaint or difference with his supervisor within twenty (20) days of first becoming . aware of the complaint or difference. 37.2.2 .If 'any complaint or difference is not ~satisfact6rily settled by the supervisor within seven (7) days of the discussion, it may be processed within an additional ten (10) days in the following manner. STAGE ONE 27.3.1 The employee may file a grievance in writing with his supervisor. The supervisor shall give the grievor his decision in writing within seven (7) days of the submissioh of the grievance. STAGE TWO 27.3.2 If the grievance is not resolved under Stage One, the employee may submit the grievance to the Deputy Minister or' his designee within seven (7) days of the date that he. received the decision under Stage One. In the event that no decision in writing is received in accordance with the specified time limits in Stage One, the grievor may submit the grievance to the Deputy Minister or his designee within seven (7) days Of 5 the date that the supervisor was required to give~ his decision in w~iting in accordance with Stage one. 27.3.3 The Deputy Minister or his designee shall hold a meeting with the employee within fifteen (15) days of the receipt of the .grievance and shall g~ve the grievor his decision in writing within seven (7) days of the' meeting. 27.4 If the grievor is not satisfied with the decision of the Deputy Minister or his designee or if he does not receive the decision within the specified time the grievor 'may apply to the Grievance Settlement Board for a hearing of the grievance within fifteen (15) days of the date he received the decis'ion or within fifteen (15) days of the specified '.time 'limit for receiving the decision. C~unsel specifically submits that the grievance did not go through' stage two~ i.e. that the grievance, was not submitted to the Deputy Minister or his designee under article 27.3.2; and that the Deputy Minister or his designee did not hold any 'meeting as required by article 27.3.3. It is the Employer's position that in the circumstances, the grievance is not properly before the Board. Counsel for the Union asserts that the grievance procedure in article 27 was followed. The'Union's position is that Mr. Rooney's letter dated June 3, 1987, to Ms. 'Snider is in effect a referral to the second stage and that.when Ms. Snider denied, the grievance by letter dated September 2, 1987, she.was responding to the second stage referral on bshaif of 6 the Deputy Minister or his designee. Counsel claims that the fact that the Deputy Minister or his designee did not hold the meeting contemplated by article 27.3.3 is not a significant defect. Alternatively, counsel submits that even if the second stage of the grievance procedure had not been complied with, the grievor has an absolute right under section 18(2) of the Crown Employees Collective Bargaining Act to proceed to arbitration with her classification grievance. Counsel relies on. the Board's decision in Keeling, 45/78 (Prichard) (ADDtication for judicial review dismissed). On the factual issue, we cannot conclude that the grievance was processed through the second stage. The evidence is uncontradicted that the Minister's designee is one .Mr. Rudi Tribe. Ms. Snider has never been appointed designee nor has she ever acted in that capacity. She admitted that ; on occasion referrals to the designee are directed to her. However, she always re-directed the grievances to the designee and in all cases, the response at the second stage was made. by the designee, after a second s~age meeting. The content of the iet~er dated June 3, 1987 from Mr. Rooney does not suggest that it was in~ended as a referral to a n~w stage in the grievance procedure. At the time, the 7 Union had not received a reply at stage one. That letter was merely seeking the Employer's response at stage one. Besides, the evidence is that Mr. Rooney was an experienced Union representative who was very familiar with the manner in which grievances are dealt with by the particular Employer. Ms. Snider testified that Mr. Rooney, through past experience, knew that a second stage referral is to be addressed to the Deputy Minister's designee, and that Mr. Tribe and not Ms. Snider was that designee. Thus there is no reason to believe that Mr. Rooney addressed the second stage referral to Ms. Snider in error. The Union suggested that Mr. Rooney had regarded the first stage as having been completed; that he intended his letter to Ms. Snider as a referral 'to stage.two; and. that he b~lieved Ms. Snider's response as a second stage reply. However, Mr. Rooney was not called to testify to that effect, eventhough the Union had advance notice .of the Employer's preliminary objection. The Employer's assertion that Mr. Rooney was still on the Union's staff was not disputed, and no explanation was offered for his failure to testify. From all of the foregoing circumstances, we conclude tha~ the grievance before us did not go throughrthe second stage. Thus the issue that remains is whether that prevents the grievor from proceeding to arbitration. 8 Section 18(2) of the Crown Employees 'Collective Bargaining Act reads (in part): 15(2) In addition to any other, rights of grievance under a collective agreement, an employee claiming, (a) that his position has been improperly classified; 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 apDlicable under section 19. The Board in Robert wiltiamson, 107/80 (Carter) dealt with the extent ~f the Board's jurisdiction where the grievance procedure had not been complied with. 'In that case, the grievor did not file a grievance with'the employer, but directly submitted the grievance to the Grievance Settlement Board for arbitration. As in this case, the Union there argued that .since the subject matter of the grfevanca was within section 18(2) of the Act - a dismissal -, the grievor had a right t~ proceed to arbitration regardless of any procedural requirements in the collective agreement. At pp. 7-9 the Board states: The issue, as we see it, is whether the complete failure of tke grievor to resort to the grievance, procedure makes this matter inarbitrable at this time.- This is not.D case where it is being argued that probationary status precludes the grievor from having the-maStsr arbitrated, a~ the employer's Objection is directed only to the failure to follow the procedural 'requirements in the collective agreement. While there is some merit in the employer's submission that the mandatory time limits' in the collective agreement should be enforced, this argument has been rejected by the Board previously in Keeling and the in Woods 224/79. In both cases it was held that the pa~ties could not restrict the Board's statutory jurisdiction by. relying upon mandatory procedural barriers in their collective agreement. A reading of the reasons given in Keetin~ can leave no doubt as to'the fact that this Board has already given careful and thorough consideration to this difficult issue, and in these 'circumstances it would be inappropriate for this panel to set sail on a completely different tack. Our starting point, then, is the premise that the parties cannot enforce any provisions in their grievance procedure that would limit the statutory jurisdiction conferred upon the Soard by Section 17~2) of ~he Act. This premise, however, does not 'dictate a conclusion, that an individual grievor can ignore th~ grievance procedure entirely andapply immediately for arbitration of the dispute by this Section 17(2) of the Act reads: (2) .In addition to any other rights of grievance under a collective agreement, an employee claiming, (a) that his position has been improperly classifipd; (b) that ~e 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 procedu're for 'final determination applicable under Section. 18. 1974, c. 135, s. 9 part. We read this provision as evincing a legislative intent that the grievance procedure be invoked prior to any reference being made to this Board under Section-!8. Although this section uses the permissive verb "may", it is permissi=e in the 10 sense of allowing the individual access to the grievance procedure and not in the sense of permitting, the grievor to avoid the grievance procedure completely by moving immediately to arbitration. The language that follows leaves no doubt that this is the intent of the legislature, since it is made clear that a grievance is to be taken to arbitration "failing final determination under such procedure" (the grievance procedure). In other words, an employee asserting a right of grievance under Section 17(2) of the Act must first of all attempt to use the grievance procedure before coming to this Board for arbitration. This conclusion is in our view not inconsistent with the Board's approach in KeelinG. That decision interprets Section 17(2) of the Act as.rendering inoperative any mandatory procedural bars that might be contained in the grievance procedure. It is evident that the Keeling decision only applies once there has been resort to the grievance Procedure and there has been no final determination under that procedure. In these circumstances, where there has been no attempt to use the grievance procedure at all, we do not think that the reasoning in Keeling applies so as to confer upon an individual employee the right of immediate access to arbitration. Section 17(2), in our. view, cannot be read as eliminating any requirement to resort to the grievance procedure prior to taking a difference to arbitration., since such a conclusion is neither supported by the language of the statute nor is it consistent with the general scheme of collective bargaining contemplated by the legislation. Where does this. leave the grievor? In our view his application to this Board is prema=ure, as no attempt has been made to resolve this matter through the grievance procedure. Before we may seize jurisdiction in this case it must be first established that the grievor has been unable to resolve the matter under the grievance procedure in the collective agreement. Since the grievor has not established this pre-condition to our jurisdiction, then this Board has no jurisdiction at this time and the application must be dismissed. (Emphasis added) In Keeiin~ itself, the Board observed at p. 20: Given, therefore the statutory right of the employee to reject the outcome of the grievance process and to turn to the procedure for arbitration pursuant to section 18, this right cannot, for the reasons given in Re-Jovce be limited or denied by the terms of the collective agreement. Keeling does not state that the grievor is entitled to avoid or by-pass the grievance procedure. The statutory right recognized is "to reject the outcome of the grievance process and 'to turn to the procedure for arbitration pursuant to section 18 (now section 19)". And Williamson has held that this right "only applies once there has been resort to the grievance procedure and there has been no final determination under that procedure." This conclusion is supported by the language in section 18(2). The right given to an employee is "to process.such matter in accordance with the. Grievance procedure provided in the collective a~reement, and failin~ final determination under such ~rocedure, the matter may be processed in accordance with the procedure for final determination applicable under section 19." If the legislature intended to permit a grievor to proceed to arbitration by-passing the grievance procedure, it would have had no need to include the emphasized portion of section 18(2). 12 Counsel for the Union attempted to distinguish the Witliamson decision on the basis that~ it dealt with a situation where the grievance, procedure had been completely ignored. Counsel refers to the use of phrases such as "having' resort to" and "invoking" the grievance procedure, and argues that at~ that Wi!liamson required is that the grievance procedure be resorted to in some way. He submits that the decision does not require that all'stages of the grievance procedure be complied with. We disagree. In Wi!liamson0 the Board talked about the need to invoke or resort to the grievance procedure, because that was the fact situation before it. The Board makes it clear that the pre-condition for the application of section 18(2) and. Keeling is the failure to finally resolve the grievance through the-grievance procedure..As already noted section 18(2) itself qualifies the right to proceed to arbitration with the words "failing final determination under such procedure". It cannot be said that there has been a failure to finally determine a grievance, when only part of' · 'the grievance Procedure has been resorted to. If invoking or having some resort to the grievance procedure is all that is required, where do you draw the line? Can a grievor file a grievance at staqe one and .simultaneously file for 'arbitration? There are significant policy reasons which require consideration in determining' this.issue. In our View, the legislature has chosen to make the right to arbitration conditional upon the failure 'to 'finally determine the grievance through the grievance procedure for a very good. policy reason. Presumably, the. parties have structured the grievance procedure in the collective agreement which would provide optimum opportunity for resolution of .the dispute through discussion with the various levels of management. The objective' of the grievance procedure is to encourage resolution of disputes through meaningful discussion between the parties without the need for litigation. The evidence is that at stage one it is rarely that a face to fa'ce discussion takes place. The meaningful discussion occurs a stage when the Parties mee~ pursuant to article 27.3.3. To allow ~he grievor to proceed to arbitration without following these steps 'is to encourage litigation and discourage mutual discussion. This does not make any labour relations sense at all. " Eor all of the following reasons we find that there has been no failure of final determination of this grievance under the grievance procedure. Accordingly, this Board has no jurisdiction to arbitrate the same under section 18(2) and 19 of the Act and the grievance must be dismissed. 14 Given this outcome, the Board does not feel a need to determine the "laches" issue. This dismissal does not preclude the griever from making a subsequent reference to this Board if this dispute is not resolved through th~ grievance procedure. If it does come before the Board, that panel will have to deal with the "laches" issue.. Dated this 1st day of December, 1989 at Hamilton, Ontario Nimal V. Dissanayake Vice-Chairperson / / / I.J Thomson ' i~Cowan Member