Loading...
HomeMy WebLinkAbout1990-0598.Simmons.92-01-08 ~I·~' '" '-.>' ' ~ ,~ ONTARIO EMPLQYlS DE LA COURONNE CROWN EMPLÜYêES DE L'ONTARrO 1111 GRIEVAIiICE CpMMISSION DE SETTLEMENT REGLEMENT 'BOARD DES GRIEFS - 180, DUNDAS SmEéT WEST, SUITE 2100. TORONTO. ONTARIO. M5G 118 TELEPHONE /TELEPHONE: (415) 325-1388 180. RUE OUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G IZ8 FACSiMILEITËLÉcoprE .' (416) 325- 13.96 598/90 IN TUB MATTER OF AN ARBITRATION Onder TBE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before I TUB· GRIEVANCB SETTLEMENT BOARD BETWEEN OPSEU (Simmons) Grievor - and - i The 'Crown in Right of Ontario (Ministry of Correctiona~ Services) . Emp1 c;lyer BEFORl: s. Goldenberg Vice-Chairperson E. Seymour Member I F. Collict Member I I FOR Tn A. Ryder I GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors I I FOR THB A. Rae J EMPLOYER Counsel . Winkler, Filion & Wakely Barristers & Solicitors HEARING May 31, 1991 " " - ( DECISION 1. The Issue The grievor, Nancy Simmons, worked as a medical secretary at the Hamilton- Wentworth Detention Centre, commencing in 1987. In the fall of 1989 her position was posted (having previously been considered as unclassified). The grievor competed for the classìfied position. She was not successful and filed this grievance concerning the fairness of the competition. This decision concerns the employer's preliminary objection with respect to the timeliness of the -grievance proceedings. Management argues that since the grievance was out, of time, it is deemed to be withdrawn and there is no jurisdiction În this Board to entertain it. The union agrees that the grievance was not timely at Stage Two, but argues that the employer waived I the time limit. ! I 2. The Facjs The facts are not in dispute. On February 13, 1990, the results, of the competition became known and were, communicated orally to the grievor. She ceased work that day. The grievor received formal notice of her failure in the competition by a letter dated February 15, 1990 and filed this grievance on March 6, 1990. The Stage One response, denying the grievance, was set out in a letter dated March 9, 1990 from D. S. Dalgleish, Deputy Superintendent, which was provided to the grievor and to her union steward, Paul laCourse. All proceedings thus fat occurred well within the time limits provided in Article 27 of the Collective Agreement. The Agreement further provides, in Article 27.3.2, that if the grievance is. not resolved at Stage One Ithe 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." This the union did not do until April 26, 1990, which was clearly out of time. > . On May 23,1990, W.B. Thomas, the Minístry's Regional Personnel Administrator, wrote r to the grievorindicating that he had been designated by the Deputy Minister to meet with her to discuss the grievance. Accordingly the Stage Two meeting was scheduled I for May 29, 1990 at 10:00 a.m. in the boardroom at the Hamilton-Wentworth Detention Centre. Mr. Thomas'letter noted that a waiver of time limits had been agreed to by, ~ 2 the' union regardi~gthe scheduling of that meeting, but was silent as to the Ministry's position. ~ , The meeting took place as scheduled and was attended by Mr. LaCourse on behalf of the grievor. The competition file was reviewed and the grievance was discussed; there was no mention or discussion of the problem of timeliness of the grievance by either party; but then Mr. Thomas, in his letter dated May 31, 1990 setting out the Ministry's Stage Two response, clearly stated that since the time limits required by Article 27.3.2 of the Collective Agreement were violated, the grievance was denied. The Ministry has maintained that position t~ date. 3. SvJdence of Waiver Several witnesses testified with respect to the issues of timeliness and waiver. Mr. laCourse, Vice· President and Steward of OPSEU Local 248, represented the employees at the Hamilton,Wentworth Detention Centre. He had been an officer of the union for some six years and filed the grievance on the grievor's behalf. In his evidence, he indicated that he did not receive any reply from the Ministry to the grievance and therefore went to see Mr. :Dalgleish, the Deputy, Superintendent, because he was concerned aboUt the time that had elapsed. He asked Mr. Dalgleish if lIit was okay jf we still went along' with Stage Twoll. He did not recall the data of that meeting, but stated that Mr. Dalgleish indicated that it was okay to go ahead with Stage ~wo. On cross-examination, however, Mr. LaCourse agreed that it was certainly possible that Mr. Dalgleish's response was that the union could go along with Stage Two but management would reserve its rights to raise a timeliness objection. Moreover, when shown a copy of the Stage One response letter of March 9, 1990 bearing his signature, Mr. LaCourse ,acknowledged that he had received a copy of that document on behalf of the grievor on March 11, 1990 at ,6:15 p.m., as indicated in the notation above his signature. . It was therefore apparent that Mr. LaCourse had failed to respond within the seven day period required by ~icle 27.3.2 and sought out Mr. Dalgleish to obtain his agreement that the grievance proceed. In so doing, however, Mr. LaCourse was aware, as he admitted on cross-examination, that Article 27.15 of the Collective Agreement provides that the time limits contained in this Article IImay be exte'nded by agreement of the parties in writing". Mr. laCourse was aware that normally the parties granted extensions of time limits by written agreement, but he testified that he had never written up anything in this regard, that he didn't feel the need to do so because he had a ; , ," 3 good relationship with senior management and felt that he could proceed on the basis of an oral understanding. Mr. Dalgleish testified that when Mr. LaCourse asked him for "advice" as to whether he would be able to submit the grievance at Stage Two, his response was that there was nothing management could do to prevent such a submission. but that did not mean that management would not object to a violation of the time limits. Mr. Dalgleish recalled mentioning to Mr. laCourse that he thought Mr. Thomas, who would conduct the Stage Two meeting, would make such an objection. . Neither Mr. Dalgleish nor Mr. laCourse was able to recall exactly when their conversation took place, but it is reasonably clear that it was some time after the time limit for the Stage Two submission had expired. Otherwise, Mr. laCourse could simply have made this submission without consulting Mr. Dalgleish at all. FinaJJy, the grievor testified briefly and confirmed that she had not attended the Stage Two meeting but had received the Stage One response letter dated March 9, 1990. 4. law and ArQument ) It is clear from the foregoing that the grievance was out of time and that the time limit in Article 27.3.2 was not validly extended, as provided by Article 27.15.' Indeed, the evidence of Messrs. LaCourse and DaJgleish, considered in its entirety, does not even establish an oral agreement to extend the time limit or overlook its viol,ation. Nevertheless, the union argues that management waived the time limit by its conduct, as evidenced by its failure to mention the til:neliness problem and reserve its rights in Mr. Thomas' letter of May 23, 1990 scheduling the Stage Two meeting, and by proceeding with that meeting wherein the grievance was discussed on its merits and there was again no mention of the union's failure to observe the time limit. Counsel for the grievor argued that such conduct evinced an intention to proceed with the grievance on its m~rits and to treat it as a live matter. He argued that it was În effect incumbent upon management, if it wished to take the position that the grievance was out of time. to attend the Stage Two meeting only upon the basis of an express, written I i reservation of its right to raise the timeliness objection; altematively, management had to raise the objection at the meeting and afford the grievor an opportunity to explain the delay and perhaps persuade the Ministry to overlook it. We were referred to two decisions of this Board, which do appear to establish that a party may waive the violation of a time limit by its conduct, even if no extension of time has been agreed upon in writing as provided by the Collective Agreement. ; I -~ ~ 4 The case of, Anderson (GSB File 1483/84) also concerned a late submission by the union of the grievance to Stage Two. A meeting was scheduled and the parties agreed in writing that the employer could have an extension of time to respond to the grievance at Stage Two. After the meeting, the employer wrote to the grievor, noting that the grievance was out of time and therefore deemed withdrawn, but proceeding i to make a settlement offer to the grievor, without taking the position that it was without prejudice to the position that the grievance had been withdrawn. Moreover, the settlement offer was made contingent on the withdrawal of the grievance, which was inconsistent with such a position. The Board was of the view that the letter was in effect an election by the employer not ' to treat the grievance as already having been withdrawn in spite of the employer's awareness that it might "technically" make such objection. On balance, the Anderson decision is not helpful to the grievor. It is clear from the Board's reasoning that if the letter could have been interpreted as objecting to the untimeliness of the grievance, or even reserving the right of management to do so, it would have been sufficient to maintain management's right to pursue such objection, notwithstanding that no' such reservation had been made in advance of or during the Stage Two meeting. Yet that is precisely what Mr. Thomas' letter of May 31, 1990 does in our case. It clearly objects to the untimeliness of the grievance ancj does so ~xpl!citly in the erryployer's written decision with respecttå Stage Two of the grievance. We were further referred to the Board's decision in FunglAnand {GSS File 1798/89, > 104/90) which clearly' states the 'principle that "an objection based on non-compliance with time limits js waived when there has been a failure to raise the objection in a , timely manner and the taking of a fresh step prior to raising the objection". But this ' case is also distinguishable on its facts. In Funa/Anand the grievance was initially filed out of time. It was thereupon discussed at two meetings on its merits, was denied in writing on its merits following the Stage One meeting, and the timeliness objection was not raised until the written reply subsequent to the Stage Two meeting. In these circumstances, the objection should have been raised ,at least in the written response to the Stage One meeting. The employer having attended the meeting, discussed the grievance on its merits and denied the grievanc;e on its merits, in writing following the meeting had both failed to raise the objection in a timely manner and taken a fresh step. It was only after the Stage Two' meeting that the objection was taken by the employer, but it was then too late, since, as the Board noted, an objection once waived cannot be revived. Again, the facts before us are significantly different. The first opportunity to raise the objection arose' at Stage Two, since the failure to comply with the time limit occurred in filing the submission for Stage Two. And the objection was made in the employer's written decision concerning SÚ;¡ge Two, which document concluded that stage of the process. . , . ~ i 5 Moreover, that Stage Two decision must be viewed against the facts which led up to it. It is evident that 'Mr. laCourse, contrary to his initial testimony, had missed the time limit for the Stage Two submission, realized his mistake, and sought out Mr. Dalgleish on that account. But, as noted above, Mr. Dalgleish did not agree, even orally, to an extension of time. On the contrary, he put the union on notice that an objection as to timeliness might be raised at Stage Two. The jurisprudence of this Board is clear that the time limits in Artícle 27 are mandatory and it is alsO clèar that a grievance which is not processed within those limits shall be deemed to have been withdrawn ,(Article 27.13). Moreover, this Board has no jurisdiction or enlarge or extend those limits, which can only be done by the parties in writing (Articles 27.16 and 27.15). Nevertheless. without such agreement, waiver may be established on proper evidence. But given the clear framework of Article 27 of the Collective Agreement, we find Professor Palmer's view helpful at p. 210 of his Collective Agreement Arbitration in Canad~ (cited in Anderson), that lIgenerally, waiver arises .-. where it is clearly indicated that one of the parties does not intend to invoke the procedural provisions of the Collective Agreemenf' (emphasis added)... liThe onus of establishing waiver is on the party alleging itll. Given Mr. Dalgleish's warning, we do not find such a clear indication of intel1tion by the Ministry, though we would likely have done so if Stage Two had been çomoleted (including _the employer's decision) without any mention of time limits. 5. Result In our view, it has not been shown in the circumstances of this case that the employer failed to make its objection in a timely fashion and took a fresh step lh the process namely, Stage Two, without any such objection. It is our conclusion that the unequivocal- statement of such an objection by the employer at the conclusion of Stage Two was sufficient to preserve its rights in this regard, Accordingly. the-grievance is 0 deemed withdrawn and cannot proceed. . I I . I . . 6 Dated at Toronto, this 8th ' day of January, 1992. ~ - S. Goldenberg, . Itl Dissent" (dissent attached) E. Seymour, Member F. MemDer I i I I .~ t· : . RE: GSB File 598/90 : OPSEU (Simmons) and the Crown in Right of On~ario (Ministry of Corrective Services) DISSENT - EDWARD E. SEYMOUR, Employee Nominee I have read the Majority Award and find that I must dissent.' Mr. LaCourse, the Union Steward, was aware he had a problem ~ith Grievance time 1 imi ts at· Step II. It was this awareness which motivated him to speak to Mr. Dalgleish to determine if he could proceed with the grievance. As stated¡ in the majority de~ision¡ Mr. Dalgleish agreed to the Step II meeting but cautioned Mr. LaCourse that holding the meeting did not mean management would not object to the violation of tíme limits. Mr. Dalgleish in direct examination recalled: "commenting that 1fr. Thomas (The Regional Personnel Administrator Central Region of the 1finistry) would m~ke such an objection". Mr.' Dalgleish· also admitted he had no further involvement with the grievance following that'exchange. Mr. Dalgleish's statement regarding the untimeliness objection was a positive statement and it is understandable Mr. LaCourse would assume the Ministry had waived its rights to object when no reference to that objection was made at the Step II meeting. Mr. LaCourse was the only witness who testified about what. transpired at the step II meeting and his as'sertion . that the timeliness issue was not raised is uncontradicted and must be accepted. The majority in its decision states: "the onus of establ ishing waiver is on the party alleging it. .. Given /'fr. Dalgleish's warning¡ we do not find such a clear indication of intention by the 1finistry¡ though we would 1 ikely have done so if stage two had been completed (including the employer's decision) without any men~ion of time limits." ! . : , I disagree with this conc1 us ion because the Step II reply, following the step II meeting as it did. rendered it impossible for the union. to ~aise any arguments in defending its right to proceed. In neglecting to raise the objection at the meeting and in dealing with it only in the reply. the Ministry in effect "ambushed" the llni on. I do not believe the circumstances of this case are sufficiently, different from the Fung Anand (GSB File 1798/89) or the Anderson lGSB File 1483/84) decisions to warrant a different result. The fact that the Step II process was not totally completed before the Ministry confirmed tha t, it 'would not lift the untimeliness objection does not. in my opinion, constitute "except'Îona 1 circumstances" as envisioned in Blake (GSB File 1276/87) 'to deviate from the earlier rulings of the Panels cited above. '. For these reasons I would have dismissed the Ministry's preliminary ,objections on timeliness and proceeded to hear the merits of this case. " / ~~c~ , E. Seymour, Member I , ,I