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HomeMy WebLinkAbout1990-0051.Di Paola.91-07-24 , .J. '.'. ¡ \ \ , \ I /~, , . ~ ~ ~ . . \. ,,' '," , > > ,'. . ,;. r, . '. " ONTAAIO EMPlQYÉS DE LA ëOLJRONNE ;- !:',:' ":';-/. .""'!. CROWN EMPLOYEES DE L 'ONTA RIO \. -." '. , II'·,,·, II'·' GRIEVANCE. CPMMISSIQNDE SETTLEMENT REGLEMENT . BOARD . DES GRIEFS ISO DUNOAS STREET WEST', sUITI: 2100, TOI'lONTO, ONTARIO MSQ· rZS TELEPHONE/TELEPHONE: I~ /6) 326-1]88 " 180, RuE OUNDAS'OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G lZB . FACSIMILE/TELÉCOPIE: . (~161 ]26- 1391$ 51/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD .BETWEEN . OPSEU (Di Paola) Grievor - anð - The Crown in Right of Ont~rio (Ministry of the Attorney General) Employer BEFORE: J. Samuels Vice-Chairperson I. Thomson Member I. Cowan Member FOR THB M. Doyle GRIEVOR Counsel Ryder, Whitaker, Wright, Chapman Barrister & Solicitors FOB THB M. Miqus EM~LOYER Staff Relations Consultants , Ministry of the Attorney General HEARING May 22, 1991 I '5 . -..- ~ , tlll.: 2 The grievor had been. employed by the Ministry since Ìuly 1982 pursuant to fifteen limited-term contracts. She began as á 00- Temp., In 1983, she commenced working in a Warrants Clerk position, and ret'aÎned this after being away to have her first child. In early 1989, there was a break in her continuing contracts while she had her second child. She had no contract covering the period February 1 to May 14. She returned on , May 15, 1989, and was assigned to a Fiat Clerk position. She had three contracts while in this position. Her last contract expired on December 23, 1989, and her last day worked was December 22. She grieved on January 26, 1990, that she was dismissed without just cause. At Step 2 of the grievance procedure, the Ministry argued that, whatever the grievor's rights in substance (and the Ministry took the position that the grievor did not have any rights in substance, given that she was simply an unclassified employee whose contract was not renewed), if it could be said that the grievor was "dismis~ed", then the grievance was out , of time. And this was raised as a preliminary objection at our hearing. We were asked to determine this preliminary objection before going on to consider the case on its merits, and we agreed to do so. The Union suggested that the ,Ministry must be taken to have waived this objection by implication because. the objection was hot mentioned in two letters to the grievor, infonning her that her grievance was dismissed after two stages in the grievance procedure. But, in our view, the failure to mention the objection about timeliness does not imply that the objection is withdrawn. In the letters to the grievor, the writers confined themselves to sayi~g that" in the writers' v~ew, the Ministry had not violated the , collective agreement. That was a direct answer to the grievance, and it was legitimate for the writers to give this answer, even though the Ministry also " was concerned about the timeliness of the grievance. I - . . --- , ~ 3 Article 27.8.2 of the collective agreement provides that an employee who is dismissed is entitled to file ,a grievance at the second stage of the grievance procedure "provided he does so within twenty (20) days of the date of the dismissal". And Article 27.14 says that "In this Article, days shall include all days exclusive of Saturdays, Sundays and designat'ed holidays" . The grievance here was filed 22 "days" (as defined in Article 27.14) after the date on which her contract was not renewed. In Wainwright et al, 717/88 (McCamus),.this Board has said that the time ,limits in the collective agreement are mandatory. We agree. The parties put their minds to the question of relaxation of the time limits when they negotiated their collective agreement. In Article 27.15, they provided , , that the time limits in Article 27 could be extended "by agreement of the parties in writing". By clear implication from Article 27.15, and given the wording of the time limit in Article 27.8.2, it seems to us that the time limit in Article 27.8.2 is fixed unless the parties choose to extend it pursuant to the procedure set out in Article 27.15. This reasoning is reinforced by Article 27.13, which reads: Where a grievance is not processeçl 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. Thus, it is clear that, if these provisions in the collective agreement apply here, the grievance is' untimely and must be deemed to have been withdraWn. But these provisions in the collective agreement do not apply to this, case, because the Crown Employees Collective Bargaining Act says they do , not. Article 18(2)(c) of the Act says that \ !~ ._._~- ( I ' " , . 4 In addition to any other rig.hts of grievance under a coll~ctive agreement,- an employee claiming, , (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 detennination under such PIocedure. the matter may be processed in accordance with the procedure for final determination applicable under section 19. (emphasis added) The legislation gives a right to grieve which is' additional to the rights under the collective agreement. And if the grievance is not finally determined according to the grievance, procedure under the collective agreement, then it can be detennined according to the process established in section '19 of the Act. And section 19 contains no time limits; In Keeling, 45/78 (Prichard), this Board considered the relationship of this legislative provision to the grievance procedure time limits, and concluded that the time limits were not applicable tò grievances filed under the legislative provision. An employee has a "statutory right.....to reject the outcome of the grievance process and to turn to the procedure for arbitration pursuant to section 18", and "this right cannot...be limited or , , denied by the'teITIls of the collective agreement" (at page 20 1/2), On judiciaJ review, the Board's decision was upheld and approved of by the Divisional Court (at 30 OR(2d) 662). And the decision was followed without question by the Board in Kingston, 2487/87 (Dissanayake). The Board in Keeling pointed out that any undue delay in filing a , grievance could be taken into account during a consideration of the merits of the matter" in particular if the delay resulted in prejudice to the > ¡ . I ~ -.- > .' 5 Employer (pages' 21-22). In our case, there was no undue ,delay' which caused prejudice. For these reasons, the preliminary objection relating to timeliness is denied and we will ,instruct the Board to schedule a hearing into the merits of this case. Done at London, Ontario, this 24th day of July , 1991. ____. _< k - , <l I, '\ ~ ' ( ~ d' ~uels, Vie Chairperson ~ , -*/ . , I - ' 4-t~7' '-~ L Thomson, Member ~..' . '\ I.cf;Ç~