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HomeMy WebLinkAbout1994-1386GANGASINGH95_09_07 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE CpMMISSION DE / SETTLEMENT REGLEMENT C / BOARD DES GRIEFS 'fS f' .:l~ 't' ().' \ ,<" 180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO M5G IZ8 ""j' TELEPHONE ITrtEPHONE (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE ITELECOPIE (416) 326-1396 '_~'~__",'___.__'A~_' .___ __ ._~ - -i GSB # 1386/94 . l. J OPSEU # 94G188 ~... I...:. 'I -. ..l ~EP 1 8 1995 IN THE MATTER OF AN ARBITRATION " ...... I \-'(j....;U.....;' vel-I" I....,,!:: Under I APPEAL BOARDS I THE CROWN EMPLO~EES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Gangasingh) Grievor - and - The Crown in Right of Ontario (Metropolitan Toronto Housing Authority) Employer BEFORE L Mikus Vice-Chairperson FOR THE C Flood GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE G Anand EMPLOYER Counsel Miller Thomson Barristers & Solicitors HEARING May 23, 1995 The griever, Ken Gangasmgh, is a Telecommunications Co-ordmator with the Metro Toronto Housing Authority (hereinafter referred to as the "MTHA") He asks that letters of discipline dated March 16, June 2, and July 7,1994, be removed from his personnel file During the grievance procedure, the letter of March 16, 1994, was withdrawn leaving two letters outstanding As a preliminary matter, the MTHA objected to the grievance on the grounds of timeliness. It asked the Board to decide the preliminary matter before hearing the merits. The Union took the position that the evidence concerning the preliminary matter would be the same evidence as that on the merits and asked the Board to hear to proceed on both. It was the decision of the Board that the parties proceed on the preliminary matter alone The grievor has been President of Local 592 since 1991 He testified that during his period in office he has been a vocal critic of the management at MTHA. In 1991, OPSEU and CUPE were involved in a joint presentation to the then Minister of Housing, Evelyn Gigantes, concerning allegations of mismanagement at the MTHA, including allegations of human rights violations and sexual harassment. Ms. Gigantes directed the MTHA to respond to those allegations and a Senior Management Forum was ultimately established which eventually resulted in as report to the Board of Directors. As a result of those findings, the grievor stated that the General Manger of the MTHA publicly admitted that the allegations were valid. Soon after that admission, the General Manger and Director of Race Relations were replaced. Ms Pat O'Connell was the new General Manager and, in early 1994, she invited the grievor to address the Board of Directors about the past and 1 2 present conditions at the MTHA. While not specifically critical of the new General Manger, he did comment on the fact that the human rights violations had increased and that the only difference between the new and old management was that they were now able to communicate on a limited level. Following that presentation, Ms. O'Connell advised the grievor that she wanted to discuss some labour relations issues with him. At the meeting she told the grievor that she had received some disturbing information from an employee who alleged that he had harassed another employee. She agreed to speak to another employee who witnessed the incident and, a few days later, called the grievor to further discuss the incident. A few days after that discussion, the grievor received the June 2, 1994 letter That letter concerned an incident in the Copy Centre on May 12, 1994 which, in the opinion of the Employer, resulted from the unacceptable behaviour of the grievor The letter was marked Personal and Confidential and was copied to Pat O'Niell, who was Chair of the Board of Directors at the time and Bob Ballantyne, Manager of Human Resources. On the top of the letter was written lice personnel file. The grievor's copy, however, contained no such notation. In the letter it was stated: ..As I explained in this meeting and in others, you are the President of OPSEU, and by virtue of that position your actions and words have weight beyond that of other employees. As I noted, your actions in this instance are totally unacceptable and must never recur... The grievor testified that when he received the letter he was shocked. He was of the opinion that someone he trusted was working with the MTHA to conjure up "thingsll against him. He responded in a letter dated June 16, 1994, denying the allegations of /' 3 harassment and stating, in part, the folloWlng' .It strikes me that, by virtue of your position as General Manager, your involvement would naturally instill fear and trepidation in any employees without seniority who was (sic) hoping to gain permanent status. This in (sic) appropriate involvement of the General Manager is most unusual and leads me to believe that there must be an underlying reason for it. This I will, as you suggest, take most seriously I sincerely hope that we can put the matter to rest through this correspondence. I thank you for your advise and counsel on the proper manner of conduct for the President of a local union. Pat, taking ones position, or ones self, too seriously does not provide a healthy balance in ones life. It's okay to have the odd light moment, even while at work. You have suggested that 1 attend at the Copy Centre only when 1 have business there. 1 will be pleased to continue to do just that. 1 consider this to be only instruction that 1 have received in the issue. I, too, value our working relationship. I must, therefore, request that you retract the June 2, 1994 letter and ensure that it is not part of my personnel file, or any other record or file. The letter was signed be the grievor as President of OPSEU, Local #692. He testified that he believed the incident referred to in the June 2, 1994, letter was not related to his position as an employee but rather to his activities as Local President. For the same reason he did not file a grievance at the time. By letter dated July 7, 1994, the grievor was advised by Ms. O'Connell that: The details of the incident were brought directly to my attention and the concern, as expressed to me, was very real. For that reason, the letter must remain a matter of record on your personnel file. The grievor testified that he did not file a grievance immediately because he wanted to have a look at his file and verify that the letter was, in fact, in it. He had learned through the Union that, if it was on his file, it should be grieved and that, if he was unaware it was on his file, it could not be used against him. He testified he made several requests to see his file but was told that the clerks or 4 advisors he spoke to would have to get back to him. He did fInally see the file in September of 1994 and immediately filed the instant grievance. He was asked in cross-examination why, given the clear language of the July letter, he needed to verify the presence of the letter on his file. He replied that, at the MTHA, he did not believe anything nntil he saw it with his own eyes. Mr Ballantyne testifIed that he only became aware of the grievance two or three days after it was signed. He never personally received a request from the grievor to review his file. He testified that there were three advisors in his department and the grievor would have approached them first, although, in the past the grievor had approached him directly In fact, he stated that the grievor had filed several grievances in the past and that, depending on the issue, would approach various levels of management to deal with them. It was his evidence that he or the advisors try to accommodate all similar requests as expeditiously as possible, within a few days. At no time after the filing of the grievance, including the grievance meeting of December, did the grievor advise him that he had been unable to review his file in the interval, even after the MTHA denied the grievance on the basis of timeliness. ARGUMENT Ms Anand, counsel for the MTHA, referred to the grievance procedure in the collective 5 agreement, specifically article 20 which states that grievances are to be adjusted as quickly as possible and that a compliant must be discussed with the immediate supervisor within 20 days of the grievor fIrst becoming aware of the complaint. If the complaint is not settled within 7 days, the grievor has a further 10 days to file a written grievance and, failing settlement, a further 10 days to refer the grievance to stage two The jurisprudence is clear Those time limits are mandatory Failure to comply with those time limits means that the grievances are deemed to have been withdrawn. In the instant grievance, the evidence has shown that the grievor was aware of the provisions of the collective agreement. He has filed grievances in the past and knows that if there was a letter of discipline on a file, it should be grieved. The evidence has also shown that the grievor was aware, at least by July 7, 1994, that the letter of June 2, 1994, was going to be placed on his file. The time limits began at that point. Ms. Anand argued that the explanation offered by the grievor was simply not credible The grievor was familiar with the personnel in the Human Resource department and with the procedures for reviewing employee files. If he had an objection with the way his request was handled, he should have raised it at the time, not eight weeks later Ms Anand allowed that the Board has discretion to extend the time limits under a collective agreement but argued that this not an appropriate case to do so No reasonable grounds were given for the delay and therefore there are no grounds upon 6 which this Board can rely to exercise its discretion. Mr Flood, counsel for the Union, referred the Board to the case of Re Ontario (Minister of Correctional Services) v O.P.S.E.U (1990), 74 O.R (2d) 700 (Divisional Court) That decision was an appeal of a Board of Arbitration decision (Pierre, 0492/86) wherein it was determined that time limits in the grievance procedure of the collective agreement begin once the grievor is aware of or knows that there has been a violation of the collective agreement and not when the incident giving rise to the grievance occurs. The Divisional Court unanimously approved that decision and dismissed the appeal. That decision was followed in the cases of Re Ministry of Environment and OPSEU (Vandenheuvel et at (1992),0286/91 (W.Low) and Re Liquor Control Board of Ontario and OPSEU (Gordon) (1991), 0048/89 (Dissanayake) In the Vandenheuvel case (supra), the Board determined that, since it was the employer's motion to dismiss the multiple grievances, the onus was on it to prove that the grievor had the requisite subjective belief that they had a grievance, which, in the case before it, was that the grievors had a belief that they had cause to complain. The Union took the position that those cases were binding on this Board eRe Toronto Area Transit Operating Authority and .Amalgamated Transit Union (Blake et al) (1988), 1276/87 (Shime) It argued that, in the instant case, the employer has failed to demonstrate that the grievor knew he had a valid grievance. Mr Flood took the position that the letters of June 2 and July 7, 1994, are not models of clarity The jurisprudence indicates that the differentiation - - 7 between a disciplinary and non-disciplinary letter is complex. The grievor was unsure of the nature of the letter and waited until he was sure he had a grievance. Once he was satisfied he did, he acted promptly On that basis the MTHA's preliminary objection must be dismissed. In addition, the Union took the position that the Board should exercise its discretion under the Labour Relations Act RS.O 1990, c. L.2 and the Crown Employees Collective Bargaining Act 1993 and extend the time limits under the collective agreement. It referred to the cases of Re Becker Milk Company Ltd and Teamstem Union, Local 647 (1978), 19 LAC (2d) 217 (Burkett) and Re Toronto General Hospital and Ontario NUIBes Association (1983), 9 LAC (3d) 91 (Teplitsky) It argued that the delay has been relatively short while the substance of the grievance is significant. The grievor believes that the letters are the result of discrimination based on union activity That issue must be resolved. In the circumstances it argued that the Board should extend the time limits and hear the grievance on its merits. DECISION There are two issues before this Board. The first is whether the grievance was filed in a timely fashion consistent with the Pierre decision (supra) If the answer to that question is negative, the second issue is whether, in the circumstances of this case, I should exercise my discretion under section 45 of the Labour Relations Act to extend the time 8 limits under the collectIve agreement. Dealing with the first question, I agree with the Union that I am bound by the Pierre and subsequent decisions. I adopt the comments of Arbitrator Shime in the Blake decision (supra) wherein he stated that each decision by a panel is a decision of the Grievance Settlement Board (Hereinafter called the t1GSBtI) and that it would require exceptional circumstances to persuade a Board to depart from the jurisprudence of other GSB tribunals. It becomes then a question of fact as to whether the evidence regarding timeliness in this case assists the Union. In my opinion, it does not. There could have been no doubt in the grievor's mind, after reading the letter of July 7, 1994, that the letter of June 2, 1994 was placed on his file as a disciplinary measure. The June 2, 1994 letter stated clearly that the alleged behaviour was IItotally unacceptable and must never recut' The grievor was told to take the matter seriously and was asked not to attend the Copy Centre unless specifically required to do so. There could have been no uncertainty about the tone of that letter The grievor was being censured about his behaviour and cautioned not to repeat it. When he was advised in clear terms on July 7, 1994, that the letter was to remain on his file, he knew, or ought to have known, that he had a difference or dispute with the employer's actions. Unlike the grievor in the Pierre decision, this grievor is an experienced Union executive member who, in his personal and professional capacity, has had occasion to process many grievances. He knew the grievance procedure and 9 testified that, once a member knows there is a letter on his/her file, he/she should file a grievance to challenge that letter I do not accept his assertion that he was unsure about whether the letter was on his file and whether it was disciplinary in nature Having found that he knew, by July 7, 1994 at the latest, that the letter of June 2, 1994, had been placed on his file, he did not file a grievance about that letter until September 23, 1994. The grievance was therefore filed outside of the time limits set out in the grievance procedure of the collective agreement. Having determined that the grievance was filed outside of the time limits, the next issue is whether this is an appropriate case for me to exercise my discretion to extend the time limits and allow the grievance to proceed on its merits. Section 45 (8.3) of the Labour Relations .Act reads as follows Extension of time. - An arbitrator or board of arbitration may extend the time for any step in the grievance or arbitration procedure under a collective agreement, despite the expiration of the time, if he, she or it is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension. In considering section 37(5a) of the Labour Relations .Act R.S.O 1970, c.232, which is virtually identical to s 45(8.3), the Board in the Becker Milk case (supra) said the following at page 220. The exercise of the equitable discretion vested in an arbitrator under s.37 (Sa) of the Act requires a consideration of at least three factors. These are: (i) the reason for the delay given by the offending party; the length of the delay; (ill) the nature of the grievance. If the offending party satisfies an arbitrator, notwithstanding the delay, that it acted with due diligence, then, if there has been no prejudice the arbitrator should exercise his discretion in favour of extending the time-limits. If, however, the offending party has been negligent or is otherwise to blame for the delay, either in part or in whole, the arbitrator must nevertheless consider the second and third factors referred to above in deciding if reasonable grounds exist for an extension of the time-limits. '" 10 These factors have been accepted by most arbitrators as appropriate considerations in determining whether to exercise discretion to relieve against the strict time limits of a collective agreement. In applying those factors to the instant case, I have rejected the reasons given by the grievor for the delay in the instant case. With respect to the second factor, the grievor knew or ought to have known by July 7, 1994, that the June 2, 1994, letter was being placed on his file as a disciplinary measure. The grievance is dated September 23, 1994, some three months later That is more than three months after the time limits set out in the collective agreement and is, in the circumstances of this case, a significant delay With respect to the third factor, I am dealing with a letter of warning, which, in the scheme of progressive discipline, is not as compelling as a grievance concerning a discharge or lengthy suspension. The Union argued that the underpinnings of the grievance are a claim of discrimination based on Union activity Be that as it may, the actual grievance before me concerns a letter of discipline. Given the nature of the grievance and the absence of any reasonable grounds for the delay, I am not persuaded that I should exercise my discretion in favour of the grievor For the reasons stated above, the grievance is dismissed. The Registrar of the GSB can release the dates set aside for further hearings on this matter. Dated this 7th day of September, 1995 at Toronto. ~ /k~ Loretta Mikus Vice-Chair