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HomeMy WebLinkAbout1992-2473.Ellis.93-11-26 .- ~- -- ! "- ./ l-:' ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DEL 'ONTARIO 1111 GRIEVANCE COMMISSION DE , , SETTLEMENT REGLEMENT BO.ARD D~S GR,EFS ~_.c,""'_'''''-_ ___ __ .- 180 DUNDAS STREET WEST SUITE 2.100, TORONTO, ONTARio, M5G lZ8 TELEPHON[E1r~Lf!PHONE: (415) 326- '388 180, RUE DUNDAS OUEST BUREAU 2700, TORONTO (ONTARIO)M5G lZ8 FACSIMILE ITE.U:COPIE (416) 326- 7396 ") 2473/92 . !l'O~q3 IN THB MATTER 'OF AN ARBITRATION Under THE CROWNBMPLQ~EESCOLLECTIVE BAR~AINING ACT Before .;: T~E GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Ellis) e, , Grievor \ - and - I The Crown in Right of Ontario (Ministry of ..:.-' - . . - - . r' Services) ~~ Employer - BEFORE W. Low I Vice-Chairpers~n J. Carruthers . Member ' . M. O'Toole Member \ FOR THE D. Wright GRIEVOR Counsel ,_ J Ryder, Whftaker, Wright & Chapman Barristers & Solicitors FOR THE S. Mason EMPLOYER Counsel Legal Serv~ces Branch MinistrY' of Community & Social Services j ~ . OJ i October 14:~1993 HEARING h . - -_.- .~ '. ( ( " / D~I5ION The Grievor Katherine Ellis is employed in the Ministry of Correctional Services as a Correctional Officer 2. In 1992, she entered competition TA038/91,. a competition for a position as Income Maintenance Officer with the Ministry of Community and Social Services. Ms. Ellis did not receive one of the 39 positions available and she grieves the competition, The employer has made a preliminary motion seeking a qismissal of the grievance ) on the grounds that Ms. Ellis failed to grieve within 20 days from her receipt of the employer's letter dated July 28, 1992 notifying her that she was not selected for a position. Ms. Ellis' grievance was dated September 22, -1992 , It is argued on behalf of the. employer that the 20 days provided for in the Collective Agreement for the employee to grieve starts to run upon her receipt of the letter notifying her that she was unsuccessful in the competition. It is the position of the employer that once Ms. Ellis ~ived the letter, she knew or ougl)t to have known that ShtS had a complaint \ '1 or difference with the employer The employer relies on the decision of Vice-Chairman McCamus in Bleach and'the Ministry of CO!fOCtioll~ Services 0020/88 where the comment was - made: f "Where the matter is one which the employee ought reasonably to understand to be a matter of contract administration, the test is an objective one and the time will begin running under Article 27.2.1 at the time when the employee becomes aware of the decision or act of the employer which) adversely or prejudicially affects the employee. Where, on the other hand, the decision or act is one with respect to which' the employee can reasonably maintain that he or she did not understand that a matter of contract administration was involved, a subjective . !'*'Nr!'W, .1 ; ( ( j 2 I approach to the operation of ~rticle 27.2.1 ~y, in our View, be utilized II I I The decision in Bleach was issued February 27, 1989, which was subsequent to the decision in Pierre v. Ministty of Correctional Services {0492/86)-but before the decision of I I the Divisional Court issued on September 5, 1990 on judicial review of the ~ decision. I ~ established that what starts the time running for (purposes of the mandatory 20 day time I I limit is the Grievor's knowledge or awareness that there has beeh a violation or possible I r violation of a provision of the Collective Agreement. It established that Article 272.1 contemplates a subjective knowledge on the part of the employee. In ~" the grievor was unaware that the circumstances leading to hefhea1th problem could be the -subject matter of a I grievance until she spoke with her union representative. Thatwas long! after receipt of the result l ...- - '. . . .{". of a tuberculosis test when she first learned that her health could have been compromised. The fk.r.m decision does not distinguish between complaints arising from circumstances where the f. J<' matter is one which the employee ought reasonably to understand -to be a matter of contract " administration as opposed to complaints arising from circumstances which the employee can ~ ..., reasonably maintain that he or she cUd- not uilderstaltd to involve a matter of contract ~ administration, the distinction drawn in the Bleach decision: Onjudicial review the Divisional ~ ~ .~ r "" ,I'io .,;.' ,-~ Court drew no such distinction and indeed it is difficult to comprehend'the rationale for such a '<. "-' ~, distinction in light of the language of the ColleCtive Agreement which deals with- a "complaint or difference" Complaints or differences are comprehensive of matters involving contract i administration and matters not involving contract administration, and' as Pierre establiShed, the test is a subjective one for purposes of determining when'-the clock starts 1to run. In my view, - . --- -_.._._~ .J i .,. (,C' ( ~ 3 ,in 'light of the ~ decision in Ute DivisionaJ, Court, the reasoning in ;Bleach is no longer valid or binding. This leaves, however~ the question of the state of ~s, Ellis' knowledge, belief or understanding during the period of time when the employer contends she must have launched her grievance in 9rder to be permitted to have it h~d by this Board. Ms. Ellis gave evidence on this issue. She acknowledges that she received the notification letter from the Ministry three or four days after the date of the letter, thus putting the date of the receipt of the letter some time in early August 1992. Once she received the letter, she telephoned Don Ford, her union , , steward. She read him the letter and stated to him that she wanted to file a grievance. Mr Ford told' her, I1Qwever, that she had no grievance unless and until she got from the employer "" its reasons for her being 9enied a position. Mr Ford stated to her that unless she had the ( employer's reason$ for denying her the job, she could not grieve; she had no grievance. His :.. advice to her was to get. feedback from the employer and then determine whether she had a .,... grievance. Ms. Ellis followed Mr Ford's advice and was diligent and persistent in attempting , > to elicit from Dennis. Shaw, a member of the sel~~on panel, feedback as to why she was not " 1 i.. chosen. She made several atteJ1lpts to reach -and get feedback from Mr Shaw On each ,. occasion, the response g~ven he~ was to ~e effect thilt someone would get back to her to set up " ~ f , a time for her to go into receive the feed~k! She was told that the employer was setting up '- ,- ) appointments for people to come in over a period of a number of weeks. Finally, after a number of phone calls, Ms. Ellis spoke to Mr Shaw on September 16th. She stated that she wanted the infonnation as to why she was not chosen and indicated that she would be prepared . <,' ~ c' ( " ( 4 to receive it by telephone. Mr Shaw acceded to this and advised Ms. Ellis over the telephone why she had not been awarded a position. Ms. Ellis immediately thereafter telephoned her \ union steward Mr Ford, and upon being ~ld by Mr Ford that she had a grievance, she instructed him to fill in and sign the grievance and me it on her behalf It is urged upon us on behalf of the union that: (a) A competition grievance is a continuing violation and that therefore the 20 day limitation period is inapplicable; (b) Ms. Ellis did not have the subjective knowledge of a complaint or difference with, the employer until she received the information from the employer as to why she was not awarded a 'position, and (c) No complaint or difference - no triggering event - in fact aro~ until Ms. I Ellis received feedback from the employer advising why she was not- awarded a position. With respect to the fIrst contention, namely that this was continuing grievance, \. the union relies on the decision in Cottrell v Ministry of Government Services (2188/87), a decision of Vice-Chairman Wilson. In my view, the instant grievance is entirely distinguishable from that in Cottrell which was a grievance arising out of a failure to post. A competition ends when the candidates are chosen. There is discrete transaction which has an end point, and in our view it cannot be said that if there is a violation it is a continuing one. Either the competition was held properly or it WUllOt. --r - . __.._u__, I t , ( ( " ) 5 The union has very forcefully urged upon us that it would be sound from a policy perspective to hold that no grievance, that is no complaint or difference, actually arises in this type of situation until the grievor has sought and has received \the employer's feedback or reasons for not awarding the Grievor a position. It is urged .upon us that we should be encouraging and fostering 200a ~ attempts on the part of grieving employees to make enquiries and investigations into possible violations of the agreement before rather than after \ launching grievances, and that it would be more desirable to encourage potential grievors to examine their complaints or possible complaints at an early stage rather than to launch grievances without knowing whether or not they have a case. In our view, this argument cannot, in the circumstances of this grievance, be clearly segregated from the question of the state of the Grievor's mind .or her subjective knowledge. I This is an unusual case in that the Grievor's first instinct was that she was not happy with the decision and she wanted to grieve. Her state of mind was completely reversed, ,,{ however, by Mr. Ford who told her that she had no grievance and could not grieve absent having taken the prerequisite step of obtaining the employer's reasons for denying her a position. Ms. Ellis turned to Mr Ford because he was the union steward and presumably 'Was a person more sophisticated in such matters than she. He told her she had no grievance and she believed him. It was not unreasonable for her to have spoken to Mr Ford and it was not unreasonable ( for her to have accepted his word on the subject with the result that she believed that she could not grieve, that is, that she did not have a complaint or difference within the meaning of the Collective Agreement until she received reasons and feedback from the employer Ms. Ellis' I . ",.1 , ,'w.\. ~;: ~;.~iit ::- (; ( .:.0.;.. ~~ 6 evidence was uncontradicted and we do not hesitate in accepting her evidence that she did not grieve because she believed that she could not. In the circumstances, whether or not Mr Ford I was correct in his advice to Ms. Ellis is a matter which we do not have to determine. We are I I . of -the opinion that the Grievor's subjective knowledge that there was a complaint or difference within the meaning of the Collective Agreement, that is, in the sense that there was conduct on the part of the employer that was grievable, did not arise until September 16th when she spoke " with Mr Shaw Accordingly, the employer's motion to dismiss the grievance for lack of timeliness will be dismissed and the grievance will proceed on its merits. ( DATED this g 6 day' of November, 1993 ~ W LOW . . Vice-Chairperson . j/f CARRUTHERS Member ~1 "I Dissent" (di~sentattached) M~ O'TOOLE Member ~ .c . ,. . " - '-.J " 2473/92 ~ DISSENT :,) .' I agree with the majority that the disposition of this case is governed by the decision in Pierre. Unlike the majority I see no conflict between the decision in pierre and that in Bleach. In my view Bleach merely establishes that, where a complaint or difference arises from a m~tter of contract administration, a presumption is to be made that an employee understands the matter I.. r to be such and, accordingly, the test is an objective one. ( I,.: However, this presumption is rebuttable by evidence of special '1'- ~ circumstances affecting an employee'S understanding. I accept that communications between an employee and a union steward can affect an employee's understanding as to the nature of a complaint or difference. In the instant case it is clear that . before the grievor spoke to Mr. Ford, she understood her complaint to be a matter of contract administration. She understood that the contract had been violated and she wanted to file a grievance. The issue is whether this understanding was substantially altered as a result of what Mr. Ford told her. In my opinion it was not Before the conversation th~ grievor was certain there had been a violation of the contract. After the conversation she was no longer certain, but she was still very clearly aware of the possibility of a violation of the contract. Accordingly, her understanding of the nature of her complaipt was not substantially . ,., 'f .., ',)"", ~~." I~ . altered with the result that an objective test is appropriate. The same conclusion can be arrived at without the assistance of the distinction drawn in' Bleach and based entirely on the principle enunciated in Pierre at page 14 that the time for filing the grievance only begins to run from the time the lemployeehas "knowledg~ or awareness that there has been a violation or a possible violation (emphasis added) of the provi~ions of the Collective Agreement." Surely Mr. Ford's advice to the grievor did not prevent her from knowing that there was a 'possible violation of the collective Agreement. Otherwise, there would have been no purpose to her subsequent attempt to obtain the reasons for the employer's decision to reject her application. I ) In my view the conclusion is unavoidable that the grievor had subjective knowledge of a possible violation of the Collective Agreement from the time she first became aware of the employer's decision not to award her .a position and that she failed to grieve within 20 days of this event. The cause of this failure was f two-fold: 1) the failure of Mr. Ford to be mindful of time limits in his advice to the grievor; 2) the difficulties the grievor had. in obtaining an explanation from the employer for her rejection in the competition. In the result the grievor was the victim of a set of circumstances for which she wasl not at fault. To that extent I have considerable compassion for the situation in which she now finds herself. But as much as I might be tempted, I cannot overlook the validity of the employer's preliminary objection. . -"----- . - --- -; "' -- c:: -'-~'~ ---- (;!'t" .~.,-~.....~, -~._.. "',,:. ;~ , \ with the greatest respect, it appears to me that the majority have succumbed to that temptation. \ For (all the above reasons I would have declared the grievance to be inarbitrable ( , 7-/1 '1- 0 ~;10&6 ~ M O'Toole, Member , I ( I / . , , ,1' :1. ~:~/, ~