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HomeMy WebLinkAbout1989-1116.Rolfe.90-02-21 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARiO GRIEVANCE C,OMMISSION DE' SEITLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIOr MSG 1Z8 - SUITE 2100 TELEPHONE/T~'L~'PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z$ - BUREAU2100 (416) 598-0688 1116/89 IN THE NATTER OF AN ARBITRATION Under THE CROWN ENPLOYEES COLLECTIt~E BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (R. Rolfe) Grievor - and - The Ct'own in Right of Ontario (Ministry of Correctional Services) Employer BEFORE= M.V. Wafters Vice-Chairperson M. Gandall Member R. Scott Member FOE THE S. Ballantyne GRiEVOR: Counsel Cavalluazo, Hayes & Lennon Barristers & Solicitors FOR THE P. Young .. EMPLOYER: Counsel Winkler, Filion and Wakely Barristers & Solicitors HEARING: January 22, 1990 DECISION This proceeding arises from the grievance of Mr. R. Rolfe dated July 7, 1989, the material part of which reads as follows: "STATEM'ENT OF GRIEVANCE That the Deputy Minister failed to delegate persons impartial to the grievor's grievances at a Stage-2 he,ring, and in doing so violated the grievors rights to an expedient resolution to his complaints. This has caused the grievor to attend a GSB hearing. Further that the parties delegated failed to discuss the grievances before them, thereby treating the grievor in a bias and unfair manner. The grievor is a Correctional Officer 2 at the Metro West Detention Centre. He has been employed by the Ministry of Correctional Services for approximately fifteen (15) years. In 1989 the grievor was unsuccessful in a job competition for the position of Sergeant. Thereafter. he filed a series of grievances relating to the conduct of the competition. It was .alleged in certain of these grievances that the competition had been unfairly administered. At the Stage 2 meeting, management was represented by Ms. M. Capobianco, Area Personnel Administrator, and Mr. G. Pickering, Senior Assistant- Superintendent. The grievor' objected to their participation in the meeting given their prior involvement in the se~ec[ion process which was the subject of the grievances. The precise nature of their invo3vement was not made clear to us, a3though we were led to believe that they were ~ust two of a number of persons who had taken part in the competition. The grievor's concerns in respect of their presence at the meeting were exoressed at the beginning of' the Stage 2 session. It was the grievor's opinion that the-management rel~resentative should have been either an independent open-minded person or an employee of the Ministry who had not been involved with the issues being contested. While th~ grievor did not have any direct evidence of bias on the part of Ms. Capobianco and Mr. Pickering. he perceived that they could be biased against him in view of their earlier participation in the competition process.. He thought it unlikely that they would be prepared to admit to error if such in fact was established. This apprehension led to the filing of the instant grievance. The Stage 2 meeting for the grievance now before us took pl&ce on Tuesday, August 15, 1989. A written reply was rendered on August 18, 1989 by Mr. R. D. Phillipson, Superintendent. His letter to the grievor stated inter a-lia; At the meeting, it was your position that it was impossible for a Deputy Minister delegate hearing a. second stage grievance, to demonstrate impartiality given that the same person had been a party to the event from which the grievance ori gi nated. Under some circumstances and in some. instances, the aforementioned position may be-correct, However, in this matter, beyond re-stating your complaint and noting the appearance of a lack of impartiality, there was no evidence introduced in support of the grievance. Moreover, as a Deputy Minister designate in this present grievance, I am not aware of any facts that would cause a former Deputy Minister designate's impartiality or integrity to be questioned. Therefore, after a careful review of the grievance, I find there has been no violation of the Collective Agreement and must deny your grievance. mm It was the grievor's evidence that after the conclusion of the Stage 2 meeting, he asked the~Chief Steward to forward the matter to the Regional Office of the Union so that his complaint could proceed to arbitration. The grievance was ultimately referred for arbitration on Octobe~.12, 1989, At the commencement of the hearing, counsel for ~he Employer raised ~ preliminary objection as to the timeliness of the referral to arbitration. By agreement of both counsel, this objection was argued together with the merits of the case. It. was the position of the Employer that the request for arbitration of the dispute was not made within the specific time period set out in article 27.4 of the collective agreement. That article reads: If the grievor is not satisfied with the dec/sion of the Deputy Minister or his designee or if he does not receive the decision wit, hin the specified lime thegrievormay apply to the Grievance Settlement 8oard for a Hearing of the grievance within fifteen (15) days of the date he received the decision or within fifteen (15) days of the specified time limit for receiving the decision. (emphasis ours) As noted above, the decision at Stage 2 was dated August 18, 1989. The referral to arbitration did not occur until October 12, 1989. As the' intervening period substantially exceeded the fifteen (15) days provided for in article 27.4, it was submitted that the grievance should be "deemed to have been withdrawn" pursuant to article 27.13 of the collective agreement." That provision states: Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn. Lastly, it was argued bythe Employer that this Board was without the jurisdiction to extend the time, limits contained within the collective agreement. It was noted that the agreement before us -lacked a provision similar to section 44 (6) of the labour Relations Act. R.S.O. 1980, Chapter 228, as amended. Counsel submitted that to extend time limits in the absence, of such right would contravene article 27.16 which precludes us from amending or enlarging upon the contract negotiated between these parties. The awards in Anderson, 1483/84 (Brent) and Mahendra, 2027/87 (Mitchnick) were. relied upon- in support of the assertion that the time limits within the collective agreement are mandatory. For all of these reasons, it was the position of the Employer that we ~acked the necessary jurisdiction to entertain the grievance. Counsel for the Union did not strenuously contest the timeliness objection. Rather, it was her submission that it was unfortunate the Employer had seen fit to resort to such an objection to defeat a position supported by common sense. From the perspective of the Union, a person perceived as being "part of the problem" should not be put in a position to hear a grievor's request that the same problem be rectified. It was suggested .that this ~osition would better facilitate the resolution of grievance at Stage 2 and would consequently reduce the number of cases going forward to arbitration. This suggestion was premised on the belief' that an interested party would be less likely to provide the objective assessment which is necessary to promote the resolution of disputes. It wae further submitted that evidence of actual bias need not be proved in complaints of this nature. It is sufficient for the grievor to establish an apprehension of bias. We were urged to find that this test had been satisfied in this instance given %he fact that persons'involved in the selection process had been designated to participate in the Stage 2 meeting. The Board was asked to make a recommendation to the Employer in respect of this practice in the event that we were unable to find a violation, of the collective agreement. The primary position of the Employer was that the merits of the grievance need not be addressed as it had not been referred to arbitration in a timely fashion. Alternately, it was submitted that the Union had not demonstrated a contractual breach. Counsel emphasized that article 27.3.2 does not limit who may attend on behalf of the Deputy Minister, He submitted 5 that it would therefore be improper for the Board to create limits or restrictions on the power to designate. To do so, in the absence of contractual language justifying such endeavor, would constitute a violation of article 27.16, that is, we would be amending or enlarging the collective agreement in a manner inconsistent with the intent of the parties. Further, it was suggested that it was important to have a person at the Stage 2 meeting who could discuss the job competition on an informed basis. It was the Employer'sr position that the participation of a person who could speak both to competition process, and the reasons for the grievor's lack of success therein, would better serve to facilitate the resolution of the dispute. Counsel submitted this potential was evidenced by the fact that disputes must first' be directed to the supervisor pursuant to articles 27.2.1 and 27.3.1. Lastly, it:was asserted that there was no · real evidence of bias in this instance. From the perspective of the Employer, the grievor simply assumed its existence. We were urged to conclude that such an assumption is an insufficient. foundation for a successful grievance. It is readily apparent to the Board that the instant grievance was not referred to arbitration in a timely manner as required by article 27.4 of the collective agreement. The actual referral on October 12, 1989 was well outside the fifteen (15) day period contemplated therein. The Board agrees with the submission of the Employer that the time limits set out in the 6 grievance procedure are mandatory in nature and that we do not possess requisite authority to extend' same. In the Anderson award the Board made the following comment with respect to these time limits: We agree t~at the time limits in the collective agreement are mandatory and that the parties have agreed in Article 27.11 (now article 27.13) upon a specific penalty for non-compliance. We further agree that this Board lacks the jurisdiction, such as that given to boards of arbitration governed by the Labour Rel~ion~ A~:, R.S.O, 1980, Chap. 228, to relieve against ~on-compliance with time limits. Moreover', even if there were such statutory authority, the partles have, in Article 27.14 (now article 27.16), denied the Board jurisdiction to enlarge time limits. (pages 4-5) In a similar vein the Board in Mahendra, after citing articles 27.13 to 27.16 inclusive, stated: The above language renders the. time limits mandatory and, unlike the LaJlour ~el~tions Act, there has been nothing added to the ~rown Employees Colle~tiv~'Bar~ainin~ Act to give ~ board of arbitration the ~urisdiction to relieve against even the most minor violations of mandatory time limits. The Union concedes, therefore, that if the time limits called for under the collective agreement were not complied with, the Board has no alternative but to dismiss the grievance. (page 7) The Board concludes that we lack the jurisdiction to hear this grievance and 'that it must therefore be dismissed. Given our conclusion on the preliminary matter, it would be imprudent for the Board to comment extensively on the merits of the grievance. We can understand, however, the grievor's perception that a. designee might not be entirely impartial if they had significant earlier involvement in the events leading to the filing of the grievance. Further, we accept thelUnion's suggestion that in certain cases the designation of a person who was extensively involved in the precipitating events could serve to deter the parties from quickly adjusting their differences, this being the. stated object of the grievance procedur6. The extent of this impediment to settlement may very well depend upon the nature, of the dispute. Conversely, we think there is some benefit ko be obtained in having an informed person present at the Stage 2 meeting who can fully explain the reasons for any decision taken. The decision to designate pursuant to article 27.3.2. is vested in the Deputy Minister. Without deciding the point, it would appear that the Board lacks the jurisdiction to interfere 'with the ultimate selection assuming that the. mechanics of the designation per se were properly effected. The Union in this instance did not contest the designation process; rather, it disputed the propriety of the persons actual'ly designated. In the final analysis, we consider that if restrictions are to be placed on the power to designate, such as those desired by this grievor, they should be negotiated rather than arbitrated. 8 The latter course of action would likely constitute a violation of article 27.16 of the collective agKeement for we would in effect be transforming "the meeting" provided for in article 27.3.3 into something materially more formal. Such a transformation is, more properly, a matter for the parties consideration. For these reasons, had we found the grievance to be arbitrable, we would have been inclined to dismiss same on the merits. As stated above,* the grievance is dismissed for lack of .jurisdiction, Date at Windsor, Ontario this 21st day of February , 1990. M.V. -Watt, ers, Vice-Chai person ~~ .~." (Addendum to follow) I4. Ganda! l, Member R. Scott, Me~ber 9