Loading...
HomeMy WebLinkAbout1991-2714.Lovering & Kraupa.95-09-14 ONTA RIO £MPLOY~$ DE LA COL/RONNE GRIEVANCE CpMMISSION DE SE~LEMENT . REGLEMENT BOARD DES GRIEFS DUNDAS STRE~ WEST, SUITE 21~, T~O~TO, ONTAR~. M5G ~Z8 TE~HONE~HONE: (4 ~6) 326-1388 RUE DUNDAS OUEST, ~UREAU 2i~, TORONTO (ONTARIO). MSG 1Z8 FACSIMI~E/T~COPlE : (416) 326-139~ GSB ~ 2714/9~, 2715/9[ O~S~U ~ 92~36[~ 92~360 IN THE MATTER OF AN ~RBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Lovering/Kraupa)' Grievor and -. The crown 'in Right of Ontario (Ministry of Transportation) Employer BEFORE: W. Kaplan Vice-Chairperson Mi Lyons Member D. Halpert Member FOR THE J. Monger GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE S. Patterson EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING July 13, 1992 June 5, 1995 Introduction This case concerns two grievances filed by Gerard Kraupa and Mark Lovering, seasonal employees of the Ministry of Transport. Both grievances allege a violation of the Collective Agreement resulting from management's failure "to recall me to work for the winter season...thereby constructively dismissing me from employment." The case initially to proceeded to a hearing in Toronto on July 13, 1992. Additional hearing .days were scheduled and, at the request of the parties, adjourned in 1992 and 1993;. The case continued in July 1995, at which time employer counsel raised a preliminary objection with respect to the timeliness of one of the grievances. Before turning to that objection, it is useful:· to set out some of the background facts. The grievors both worked out of the Ministry's Manchester yard for a number of years prior to not being recalled. Mr. Lovering was not recalled for the 1989-1990 season, while Mr. t(raupa ~vas not recalled for the 1991-1992 season. Bdth grievances were filed on December 9, 1991. Mr. Lovering worked as a snow plow operator/seasonal patrol maintenance worker prior to not being recalled. He had previous experience as a sessional labourer, and snow plow helperl and had accumulated 4,1 92 hours of seniority with the Ministry. For his part, Kraupa had accumulated $,764 hours of seniority. In brief, the union asserted that individuals with less seniority than the grievors had been recalled to employment at adjacent yards, or within the same district, and that these individuals had been recalled to the same positions that had been previously held by the grievors. Moreover, in the case of Mr. Lovering, the union alleged that individuals with less seniority than him were recalled to employment to positions formerly held by him in the Manchester yard. Subsequent to these events, Mr. Lovering worked during the 1990-1991 season as a "anti-recession" worker performing his old job, Mr. Kraupa has had no 'employment with the .Ministry since not being recalled for the 1 991-1992 season. 'The union was of the view that both grievors ' should be compensated for the Ministry's failure to recall them to their positions, and should also be credited with all seniority lost as a result of. this breach. As noted above, before addressing the merits of the matter in dispute, ~ employer counsel raised a timeliness objection. The employer took the position that Mr. Lovering's grievance, filed some two years after the employer "failed" to. recall him was out of time. In addition, while. reserving the right to make a more. detailed opening statement when the matter proceeded on its merits - and it is important to note that there was no dispute about the timeliness of Mr. Kraupa's grievance - employer counsel took the position that the grievors were not recalled because the positions they formerly held were not filled for economic reasons. ,' Moreover, the employer was also of the view that as these jobs involved snow removal, it was essential that employees be able to get to work in a timely way. The demand for snow removal services is the greatest in inclement weather, and to ensure a readily available workforce, the, employer Was entitled to hire ~mployees resident in defined geographical. areas. In the case of seasonal snow removal employees, both seniority and recall were, the employer advised, calculated on a patrol basis, and given this administrative structure, the facts as alleged by the union, even if established, could not, in the employer's view, constitute a Collective Agreement breach. Put another way, it was the employer's submission that Z employees were limited in their recall rights to their former positions in their assigned patrol yards. They had no recall rights to other positions in their formal patrol yards, 'and no recall rights to their former position in yards elsewhere in the district. Before turning to the employer's preliminary objection, and the submissions respecting timeliness, it is useful to' review the evidence adduced in these proceedings. Evidence of Mr. Loverin(~ Mr. Lovering testified on his own behalf. He began work with the Ministry in 1975 and, as noted above, worked on a seasonal basis until the spring of 1989. Mr. Lovering received his snow plow operator's license in 1988 at the suggestion of John Foster, his supervisor, 'who advised him of the need for a second operator. In the normal course of events, Mr. Lovering would be informed in. October, November or December whether his services were required for the forthcoming season. Sometime in 1989, he was advised by Mr. Foster that his services would not be required. On November 8, 1989, Mr. Lovering wrote a letter, the text of which is as follows: After 15 years of seasonal employment with the MTO at Manchester yard as snowplow helper & operator, I regret hearing that these jobs are not available this winter of 89/90. With experience at these reoccurring jobs since 1975 it leaves me without winter employment in these classifications due to my title of casual worker I have tittle hope of returning this winter. If something changes and these jobs are available in the future I hope you wi[I keep me in mind. On behalf of a casual worker in your employment please understand it grieves me to find jOb eliminated after so many years. Upon learning that he would not be recalled, Mr. Lovering gave a copy of this letter to Mr. Fo§ter who advised him that it would be sent "to Toronto." In the aftermath of writing this letter, Mr. Lovering did not receive any offer of seasonal employment and, in fact, learned that the letter was not sent but simply put i~ his file. According to Mr. Lovedng, he did not file a grievance taking issue with the employer's failure to recall him, and he explained that he did not do so because he was not aware that that failure could be grieved. Mr. Lovering testified that all he. knew was that his former position had been eliminated. As noted above, the grievor worked for the Ministry on an "anti-recession" .job in the winter of 1991. In the late fall of 1 993, he learned that he would again not be recalled to his job for the' forthcoming season, 'and was also informed that it was management's view that' he had lost all of his seniority. Mr. Lovering discussed the matter with Mr. Kraupa, and also conducted a preliminary investigation. He then filed a grievance, and as a result of initiating that process, discovered that less senior individuals 'had, after he was not recalled to employment for the 1 989-1990 season, performed jobs he had previously performed. It was also around this time that Mr, Lovering learned, for the first time, that he might have had recall rights .to his position elsewhere in the district. Cross-Examination of Mr. Lovering in cross-examination, Mr. Lovering rejected the suggestion that some time in the fall of 1989 Mr. Foster offered him a'job whiCh was declined. When Mr. Foster told Mr. Lovering that his job was no longer' available, Mr. Lovering believed him, and testified that the basis of this belief was the fact that the two men had worked together for fifteen or sixteen years. He formed the view, at the time of these events, that the elimination of hi.,; job was a Ministry decision. He was very unhappy with this decision, and that is why he wrote the letter extracted above. Mr. Lovering was asked a number of question about a gravel hauling business he used to operate. He had no. recollection, however, of a discussion in which he purportedly advised Mr. Foster that his .bUsiness was going we,Il and that he no longer wished to be considered for seasonal employment. Once, Mr. Lovering testified, Mr. Foster asked him if he wished a full-time job; he responded ttiat he was satisfied with seasonal work. Re-examination of Mr. Lovering' In re-examination, Mr. Lovering testified that while he had filed grievances in the past, and was active generally in union matters, he had no idea that he could do so in this case as he had been told that his job was no longer available, and he believed what he had been told. He also testified that his gravel hauling business stopped around the end of November and he was, therefore, available to perform seasonal employment. Evidence of Gerard l/,raupa Mr. Kraupa told the Board that he was usually recalled to his seasonal position a few days prior to the start of each season. Some time in late November 1991, Mr. Kraupa was advised by Mr. Foster that he would not be recalled, and he was not, in fact, offered any work for the following season. Mr. Kraupa was aware, however, that other people transferred from yard to yard, and took their seniority with them when the did so. Accordingly, and after discussing the matter with Mr. Lovering, he filed a grievance. Evidence of Brenda Robinson Ms. Robinson, a day clerk with the Ministry, testified on behalf of the employer. According to'Ms. Robinson, in November 1989 she.overheard a conversation between Messrs. Foster and Lovering. Ms. Robinson testified that Mr. Foster informed. Mr. Lovering that his position would be eliminated, and then offered him another job on night Patrol. The grievor replied that he was not interested in a shift job because his gravel business was doing well. Cross-Examination of Ms. Robinson In cross-examination, Ms. Robinson testified that this conversation took place in the spring, She insisted that it pertained to a job for the forthcoming season, and she .was certain that'the conversation was not . about an unrelated furl-time position. Evidence of John Foster rvlr. Foster tesl~ified on behalf of the employer. He has been the Patrol~. Supervisor at the~ Manchester- yard since 1978. He testified that.in November 1989 he advised Mr. Lovering that he would nOt be recalled to employment, and he' offered him a night patrol position, and possibly some other position. Mr. Lovering declined that job offer expressin9 the view that he did not wish to work shifts, Mr. Foster then told Mr. Lovering that, in these circumstances, he could not 9uarantee any ,further seasonal employment, and Mr. Lovering replied that he did not need the aggravation and wished to take the winter off. Mr. Foster then asked Mr. Lovering for a letter confirming their discussion, ' and Mr. Lover. ing provided him with the letter extracted above. Mr. Foster is aware that Mr', Lovedng's letter does not describe the discussion he relayed in these proceedings, and testified that he made several attempts to follow-up with Mr. Lovering. He ultimately abandoned those attempts when they proved unsuccessful. Foster did, 'however, make an undated notation in his diary that "Mark Lovering was asked to come back this winter. He said he had other commitments. Gave a letter to that effect." Cross:Examination of Mr. Foster In cross-examination, Mr. Foster insisted that he wa's not confusing a discussion about a full-time job with a discussion about possible recall for the 1989-1990 season. He agreed that Mr. Lovering had never worked on the night patrol job, but testified that he was certain that he had offered it 'to him. That job was eventually given to someone else who had transferred from another yard. Mr. Foster did not offer Mr. Love'ring any other jobs in the Manchester yard because employees who had previously held these jobs had indicated their desire to return to them. According to Mr. Foster, after reading the Mr. Lovering's November 8~ 1989 letter, he asked him to submit a new one more accurately reflecting their discussion. Mr. Lovering did not do so, and Mr. Foster did not make any contrary notations on the Lov. ering letter, nor did he write' I~r. Lovering setting Out his own version of events;. Mr. Fosl~er agreed that Mr. Lovering was not very happy when he was told that he was not going to be recalled. In 1989-1990, Mr. Foster did not explore the possibility of the' Ministry recalling Mr. Lovering to employment in an adjacent yard or elsewhere in the district. The evidence having been completed, the matter turned to argument.. Employer Argument EmPloyer counsel raised three preliminary 'objections:- First, the employer took the position that Mr. Lovering's grievance was out of time. Counsel reviewed a number of well-known cases including Mirasol 1389/90 (Knoph) and Gembora 930/89 (D!ssanayake), and he applied the principles in those awards to the instant case. Counsel noted that Mr. Lovering last worked on April 14, 1989. He was not recalled in the fall of 1989, but' did not file a g~ievance until DeCember 1991. There were few things, Counsel noted as fundamental as losing one's job, and he took the position ~hat Mr. Lovering must have known at that time that he had a dispute or difference with the employer and, therefore, a right to grieve, a right, counsel pointed out, that this individual had previously exercised. Given the mandatory time provisions in the Collective Agreement, as set out in Article 27, the employer took the position that Mr. Lovering's grievance should be dismissed. In his second ~submission, employer counsel argued that the grievor had lost his seniority by virtue of Article 3.20.2(a)(v) which provided that a seasonal employee will lose his or her seniority when he or she "ceases to be in the employ of the minist~ for a period'of more than twelve (1 Z) months." Counsel pointed out that there was no dispute in the evidence that the grievor had not been employed by the Ministry'for more than twelve .~ months, and that being the case, he was not an employee and had no right to exercise his seniority as it had, by virtue of this provision, lapsed. Therefore, in the employer's submission, Mr. Lovering had no rights to exercise and no right to grieve. Finally, the employer took the Position that Mr. Lovering was actually offered employment in the fall of 1989 for the f°rthcoming season and turned it down. That'being the case, and given Article 3.20.2(a)(iv), the employer asserted that Mr. Lovering was hardly in a position to subsequently allege that the employer had failed to recall him to employment. Union Argument In the union's submission, the Board should take jurisdiction with respect to Mr. Lovering's case, and counsel submitted, given the 8oard's decision in Pierre 0492/86 (upheld on review by the Divisi&nal Court, The Oueen in riqht of Ontario v. OPSEU 74 O.R. (?_d) 700 (Div. Ct.)) that it had the jurisdiction to do so. Very simply, in the Union's submission, the principle was established in the Pierre case, and followed' in numerous subsequent cases which union counsel reviewed, that the time limit provisions of the Collective Agreement begin to run when a grievor becomes aware that he or she has a complaint that is based on a violation or possible violation of 'the Collective Agreement. The Divisional Court noted in its review of the Pier~e case "that it is only the subjective awareness of the employee that she has a complaint arising out of a possible violation of the agreement that sets the 20-day time limit running" (at 705). Applying this principle to the instant caSe, counsel argued that it was absolutely clear on the evidencE: that Mr. Lovering did not know until the fall of 1991 that he might have a grievance, and he acted within the time limits set out in the Collective Agreement as soon as he realized that this might be so. In the union's view, if the Board found that Mr. Lovering's grievance was timely, then it could hardly decline jurisdiction on the basis that the 9rievor had, through the operation of Article 3.20.2(a)(v), lost his position. Union counsel pointed out that if Ur. Lovering's grievance was ultimately successful, it would naturally follow that he should have been recalled to his position and shOuld not have lost his seniority. Accordingly, it was the union's submission that' this part of the employer's objection must also be dismissed. The union also took the position that Mr. Lovering's. evidence .- should be preferred, and union counsel argued that there was no basis to find that he had been offered a position, and declined it.. Counsel pointed out that this suggestion was completely at odds with Mr. Lovering's November. 8, 1989 letter, and totally contrary to the evidence he gave in these proceedings. Whatever Ms. Robinson and Mr. Foster recalled - and counsel referred to somme contradictions in their evidence ~ it was not the extension and rejection of an offer of seasonal employment in Mr. Lover!rig's "former position" as provided for in Article 3.21.1 Finally, the union took the' position that' as a result of CECBA reform, the Board had jurisdiction to extend collective agreement time limits where satisfied that there' were reasonable grounds to do so, and where the other party would not be prejudiced in the result.~For alt of these reasons, union counsel asked the Board to take jurisdiction with respect.to Mr.' Lovering's case. Employer Reply .. Employer counsel made a number' of observations in reply. In the employer's submission, it was completely understandable why 'there might be some inconsistencies in the evidence of Ms. Robinson and Mr. Foster. After all, six years had passed since the conversation had taken place. And it mattered little whether it took place in the fall or the spring; what mattered was that two people testified that it occurred, and one of them, Ms. Robinson, was completely disinterested. In these circumstances, counsel suggested that the employer's version of events, corroborated by a note Mr. Foster .wrote, should be' believed. Decision Having carefully considered the evidence and submissions of the parties, we are of the view that the employer's preliminary objection should be dismissed, and that the case should proceed on its merits. In our view, it was not until late 1991 that Mr. Lovering became aware that the factual circumstances with which he was already familiar might also give rise to a difference between the parties with respect to the interpretation and application of the Collective Agreement. Put another way, Mr. Lovedng was aware, and had been for more than two years, that he had not been recalled to his seasonal position. What he did not know was that he might have rights to other positions within his yard and within the district. Once he realized that this might be the case, he filed a grievance. And, after considering and applying all of the post-Pierre decisions to the instant case, we .can only conclude that the time limits, did not begin to run until shortly before the instant grievance was filed. It is noteworthy that Mr. Lovering had filed grievances on previous occasions. On the one hand this indicates a familiarity with the process leading to the conclusion that he would have, had he really cared, filed a grievance once he learned that he was not going to be recalled to his position given the fundamental nature of that decision. On the other hand, this fact also leads to the conclusion that Ivlr, Lovering was truly unaware of his grievance rights, and this is hardly surprising given that the issue raised by this case is an emerging one, and the jurisprudence on point is developing and, in its present state, is far from clear. There is no reason to believe that Mr. Lovering was aware of his rights and then sat on them; all of the evidence, in fact, is to the opposite effect. Moreover, there is no reason, given the facts at issue in this case, to find that the grievor should' have known of his PoSsible rights and to impute that knowledge to him (see King 265Z/91). it is worth pointing out that Nr. Lovering comp~ained about the employer's decision not to recall him in the November 8, 1989 letter. He also accepted his employer's representation that his job was gone, and that the vacancies were to be filled by.full-time employee§. It was only after the grievance process began that Mr. Lovering learned, for the first time, that seasonal employees with less seniority than him were perfOrming jobs he was qual!fied to perform and had previously performed. We can, therefore, only conclude that Mr. Lovering was truthful when he testified that he was not aware of his grievance rights in this respect, and we can only find, in these circumstances, that once he became aware of his rights he filed his grievance in a timely 'way. Having made this finding, the second prong of the employer's preliminary.objection is also dismissed. Obviously, if Mr. LoVering's grievance'is successful, he would not have lost any seniority by virtue of the operation of Article 3.ZO.Z(a). With respect to the employer's third contention, namely that Mr. Lovering had turned down a job offer, we must, having carefully considered the evidence, conclude that he did not turn down an offer of seasonal employment in his former position. The 'fact of the matter is that Mr. Lovering owned a business that Was active in the summer time. This explains, as he testified, why .he was not interested in a fulFtime job. His 'business did not operate in the winter, and this suggests, again as he testified, that he would be interested in winter employment. The fact that he wrote the employer in November 1989, the very time that seasonal job offers were generally made, expressing his disappointment that he was not offered a job, and asking to be considered for future job opportunities, not to mention the fact that he took the "anti-recession" job, indicates that his interest in employment was real. Moreover, there were a number of contradictions in the evidence of Ms. Robinson and Mr. Foster, about when exactly the conversation between Mr. Foster and Mr. Lovering was supposed to have taken place. '['he only clear documentary evidence we have is'Mr. Lovering's November 8th letter indicating his unhappiness with the employer's decision not to recall him to his position. Mr. Foster's evidence about his response to that note is not reflected in the records of the employer: Certainly, the one undated reference to Mr. Lovering does not, in the overall, corroborate Mr..Foster's account. In addition, and without making any findings on the matter that will have to be ultimately determined in this' case, we have some doubts, even assuming for the sake of argument that ~lr. Lovering was offered a job and turned it down, that the night patrol position, which he had never previously performed, constitutes a "form. er"position" as' provided for in Article 3.Z1.1. It should be noted that this award makes no:'. findings with respect to damages should either or both grievances ultimately prove successful. Certainly, in assessing damages the Board can take into account the fact that t~r. Lovering's grievance, while found to be timely, relates to mattem that had occurred in 1989. This issue, Can be addressed at the'conclusion of the case, and the Board can make an award at that time .which appropriately acknowledges this fact. Certainly, an argument could then be made that the employer should not be liable for any financial consequences arising out of the delay. Finally, the Board was advised that a number of individuals required notice. As agreed at the hearing, all potentially affected individuals will be notified by the parties of the continuation date of this case. DATED at Toronto this 1_4th day of August, 1995. William Kaplan Vice~hairpe r.s.op~ M. Lyons Member , ~~ (addendum al:cached) D. Halpert Member 2714/91, 2715/91 OPSEU (Lovering/Kraupa) and the Crown in Right of Ontario (Ministry of Transportation) Addendum of D. Halpert, Member I concur with the decision of this panel with respect to the preliminary objection raised' by the employer., My hesitancy to reach this decision 'was based on the issue of timeliness and was overcome because of the confusion surrounding this particular issue over the past several years. There have been several GSB cases involving thee issue of layoff and recall of s~asonal workers. The subsequent awards have not clarified the matter. In the midst of this confusion, it:is quite possible that Mr. Lovering would be unaware of his rights. But these are unusual circumstances. Notwithstanding changes to CECBA and the provisions contained in Bill 40 regardin~ timelinebs, the parties clearly have a right to closure on an issue in fair and reasonable time. Two years would ordinarily be well beyond what we would consider fair. and reasonable. Mr. Kaplan has made it clear in his award that this decision on the issue of timeliness is narrow. It applies to the unusual circumstances of this.case and[ should not be a signal that the reqUirements to abide by the time limits negotiated by the parties is any less. onerous.