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HomeMy WebLinkAbout1990-0637.Rigglesworth.91-04-19 , I , \ \ I >' ; \ '. ~ .- . {- ONTARIO EMPLOYÉS DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO -. . 1111 GRIEVANCE COMMISSION DE SETTLEMENT . REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET wEST, SUITE 2100, TORONTO, ONTARIO. M5G IZ8 TELEPHONEiITELSPHONE: (4 rõ) J<õ- fJ88 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO/. MSG rZ8 ¡:ACSIMILEITÈLÉCOP/E .- i4Jõ) 325-/396 ~ 637/90 IN THE MATTER OP AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BE'l'WEEN OPSEU (Rigglesworth) Grievor - - and - The Crown in Right of ontario (Ministry of Transportation) Employer BEFORE: B. Fisher vice-Chairperson p. Klym Member F. Collict Member FOR THE R. Blair GRIEVOR - - Counsel - .Cavalluzzo, Hayes & Lennon - .,-.- -Barristers & Solicitors FOR THE B. Smeenk EMPLOYER Counsel . winkler, Filion & Wakely Barristers & Solicitors HEARING March 8¡ 1991 I I I I -' ., , ¡ --" - INTERIM DECISION: This is a grievance involving a health and safety complaint. There were a number of preliminary objections raised by the Employer at the opening of the case, however, it was agreed that we would deal first with the issue of timeliness. The events that gave rise to this grievance occurred in 1984, however, the grievance wasn't filed until i990. There are two issues to determine; 1) When did the grievor become aware of the fact that he had the right to file a grievance over this matter? 2) Did the Employer waive its right to object to the issue of timeliness by failing to raise this objection until after it was sent to the GSB for arbitration? 1) The Grievor's Knowledge Insofar as we conclude later in these reasons that even if the grievance is untimely, the employer has waived its right to object, it is not necessary for us to decide whether or not the grievor - first became aware of his right to file a grievance about this matter in 1990. 2) Waiver As both parties indicated that the events which took place in the second stage grievance meeting were relevant to the preliminary objection, the Board heard oral evidence otwhat took place in the second step hearing. This evidence was presented by the grievor and two management witnesses who attended the meeting. The relevant facts are not really in dispute and can be conveniently listed as follows: . - . . -. . - 2- 1) The grievance, dated May 3, 1990, reads as follows: "Statement of Grievance I grieve that I have been subjected to unwarranted mental and physical stress and injury due to the inability, unwillingness and negligence of my employer to provide me with a safe working environment that has resulted in a permanent respirato~ disabih~. Due to reclassification at a lower salary I was subjected to p ysical injury and mental torment. As a result future prospects for promotion have been seriously affected. Settlement Desired I claim financial compensation for past and future losses hi wages, togehter with financiâl compensation for the mental stress and physical hardship I have had to endure." 2) Management knew that part of this grievance clearly related to an incident in 1984 when the grievor was transferred out of his former position as an Instrument Repairman Foreman to a lower paying position. This transfer was related to work related health problems experienced by the grievor. This matter had been previously pursued by the grievor in a number of fashions, including complaints to the Health and Safety Committee and an extensive investigation by the Ombudsman's office. 3) Prior to the second step grievance hearing one member of management had concerns about the timeliness issue and spoke to a Senior Human Resources Advisor. The advice of that Senior Human Resources Advisor was to see what happened in the second stage hearing and then to deal with the issue once it had been hopefully clarified. ~ 4) The second stage hearing took place on May 29, 1990. At no time during this meeting was the grievor specifically asked if the grievance related to anything other than the 1984 incident nor did the grievor state in the meeting that the grievance only related to the 1984 incident and nothing else. After that meeting, the Employer was still confused as to whether or not the grievance only involved the 1984 incident or whether it involved both the 1984 incident and something else which took place in the 20 day period prior to the filing of the grievance. S) The Union sent this matter to the Board for arbitration on June 18, 1990. 6) On January 21 1991, counsel for the Employer a┼íked the Union for particulars of the grievance, including the relevant dates of the incidents. -- -.....- ---..- -- -- .. _L. ~ -3- 7) On January 23, 1991, the Union provided the requested particulars which made it clear that the grievance involved solely the 1984 incident. . 8) On January 30, 1991, the Employer's counsel advised the Union that they would be making an objection.as to the timeliness of the grievance. The Employer's contention is that it didn't know for sure until January 23, 1991, that the grievance only involved the 1984 incident, therefore, it was only then that it could properly make the preliminary objection. The grievance itself certainly gives the impression that the grievance involves a recent incident within the twenty days prior to the filing of the grievance, as evidenced by the following excerpt from the grievance form: "Due to reclassification at a lower salary I was further subjected to physical injury and mental torment." We also find that this confusion was not cleared up in the second stage meeting, partly due to the fact that the proper question was not put to the grievor and partly because the grievor cut ~ the meeting short himself in an act of frustration. We therefore accept the Employer's contention that when they came out of the second stage meeting they were still confused as to whether or not the grievance involved only the 1984 incident or whether it involved both the 1984 incident and a 1990 incident. We further accept that this confusion was only clarified in January of 1990 when the Employer's counsel asked for particulars. Bowever, we note that the Employer made absolutely no attempt to further clarify this aspect of the case from the second stage meeting of May 29,1990 until January 21, 1991, when their counsel asked for particulars. However, it is quite clear that the Employer knew from the day upon which they first received this grievance that at least part of the subject matter arose in 1984 and was, on its face, quite untimely. However, they decided not to make a preliminary objection until they were satisfied that all of the grievance was untimely. . - . .- --. . - 4 - The legal issue to be decided is whether an Employer who knows ~hat at least part of a grievance is untimely is obligated to object at the earliest opportunity, and therefore whether its failure to do so will constitute a waiver of the objection. The general rule regarding waiver is quite nicely set out by Arbitrator Carter in the often quoted case of Re: Municipality of Metropolitan Toronto & CUPE Local 79, 5 L.A.C. (2d) 311 at pages 318 and 319: The union's second argument was that the failure of the emploJer to raise the issue of arbitrabi1i~ during the period when the boar was bein~ constituted amounted to a waIver of the mandato~ time limits. The octrine of waiver if now well established bÆ arbitra jurisprudence. The numerous arbitration awards invokin£ this octrine are cited in the recent case of Re: Regen~ Towers Hotel td. and Hotel and Club Emglobees Union~ LoCal 99 (1973), 4 L.A.C. (2d) 440 (Schiff). The award of t e oard in that case treats these decisions as falling into two categories: (1) those situations where the failure to object b) one party has caused a detrimental reliance by the other party; and (2 those situations where the failure to object does not create a detrimental reliance but, rather, constitutes a waiver, having the effect of amending the procedural provisions of the collective agreement in respect of a -' partIcular grievance. . The union agreed that the facts of this case did not contain an element of detrimental reliance, but ar~ed that they did support an application of the second aspect of the doctrine of waiver. This board acceQts the proposition that the doctrine of waiver can apply in the absence of detrimental reliance, but it also considers that it must be confined to those situations where the facts clearly indicate that a party did not intend to invoke the procedural provisions of the collective agreement. To apply the doctrine of waiver wtthout evidence of such intention would amount to an amendment of the collective ~reement by the board rather than by the parties. Thus, in appmng the octrine of waiver, a hoard must be certam that the facts do III icate that one of the parties intended to relinquish its rights under the collective agreement." . In this case there was no evidence of detrimental reliance by the Union, so the issue is whether or not the actions of the Employer constituted a waiver. . - 1 ~ n. _ - 5 - This Board was unable to find any case where this particular set of facts had arose, however, in Re: Municipality of District of Abbotsford and General Truck Drivers and Helpers Union, Local 31, 4 LAC (4th) 296 (Ladner) a somewhat similar situation arose. In that case the grievance itself and the subsequent correspondence between the parties made it unclear as to whether or not the grievance involved one or two competitions. In dealing with the issue of waiver, the arbitrator said at page 306: "With the benefit of hindsight, it is quite clear from this that the Union was intending to ~rocess the grievance Wlth respect to the second position, but the re ere nee is so vague that I cannot infer from this and the employer's subsequent silent progress to arbitration as constituting a waiver." In the case before us, if the confusion was whether or not the 1984 incident was referred to in the grievance, then it would be reasonable for the employer to hold off on any objections regarding timeliness until it was sure the 1984 incident was part of the grievance, and its failure to do so until that fact became clear would not constitute a waiver. But in our case the confusion was -' whether or not some part of the grievance was in fact timely as there was never a dispute that part of it was clearly untimely. There was no logical reason to hold off on making a preliminary objection at the first available time, and certainly by the time of the second stage response. If the grievor had "clarified" the grievance at the second stage meeting and so indicated that part of his grievance did relate to current incidents within the twenty day limit under Article 27.2.1., the Employer still would have had to notify the Union as to its objection as to timeliness for that portion of the grievance which, on the face of the grievance, occurred prior to that time limit. The policy reasons behind the doctrine of waiver where there is no detrimental reliance apply just as much to a situation where part of the grievance is untimely as it does to where all of the grievance is untimely. Even though a successful preliminary objection to only part of the case would not eliminate the grievance altogether, it may well have had the effect of substantially shortening the case or limiting the issues. As such the Union is entitled to !mow in a timely fashion whether or not it - will face a timeliness objection at the hearing. l ;. . " " .u - 6 - In summary, the Employer knew at the time of filing the grievance, based on a simple reading of the grievance and its knowledge of the surrounding circumstances, that at least part of the grievance was untimely. Notwithstanding this knowledge, the Employer failed to make known its preliminary objection until well after the matter had been referred to in the Registrar for a hearing. As such, the Employer has waived its right to rely on the issue of timeliness. This preliminary objection is therefore dismissed. This panel shall remain seized unless and until the parties agree otherwise. Upon the written request of either party, the Registrar shall set further dates for hearing the balance of the case, including the further preliminary objection. D at Toronto this 19 day of Apri 1 , 1991. B. Fisher Vice-Chairperson P07~ P,~yrn Member / 1 ~/ t - -/ -,>,.( ¡.., .~ ' --/ '- ~. '- '- "- ( F. Colliet Member . - I