Loading...
HomeMy WebLinkAbout1994-1419TIEL97_07_21 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 1419/94 OPSEU # 94E436 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Tiel) Grievor - and - the Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFORE R L. Verity Vice-Chair FOR THE R Blair UNION Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE A Gulbinski EMPLOYER Grievance Administration Officer Minsitry of the Solicitor General & Correctional Services HEARING July 8, 1997 2 INTERIM DECISION In a gnevance dated January 11, 1994 Nelly Tiel, a full-tIme Nurse 1 (unclassified) at the Sarnia J ail, alleges that she was discriminated against on the basis of age dunng the process of a Job competition. The competition, held at the Jail in September of 1993, was for the posted position of Nurse 2. The gnevance alleges that managementvlOlated the "no discnmination" provision (Article A.ll) of the collective agreement then m force. The remedy sought mcluded a request that the competition be rerun or that the grievor be awarded the classified position. From the outset the employer raised and continues to rely upon the prelIminary objection that the matter is marbitrable because the grievance had not been filed WIthin the mandatory time limits specified in Article 27 of the collective agreement. The union dIsputes that allegation. The ments of that prelimmary objection will be heard at another tIme. On the first hearing day, the sole issue before me was described by the employer as a further prelImmary objection that the Board has no JunsdIctIon to deal wIth the merits of the gnevance because of the late referral of the gnevance to arbItration which vIolated the mandatory tIme lImIts specIfied m ArtIcle 27 4 of the collectIve agreement. The partIes are in agreement that thIs second tImelIness objectIon was raIsed by the employer for the first tIme less than a week before the scheduled heanng on July 8, 1997 3 While It is saId that thIS prelimmary objection relates to ArtIcle 27 4 of the collectIve agreement, it is helpful, however, to set out other provisIons of that Article ARTICLE27-GIDEVANCEPROCEDURE 271 It is the mtent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, admimstratIon or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable. 27.2.1 An employee who believes he has a complamt or a dIfference shall first discuss the complaint or difference with his supervisor within twenty (20) days of first becoming aware of the complaint or difference. 27.2.2 If any complamt or difference is not satisfactorily settled by the supervisor withIn seven (7) days of the discussion, it may be processed withIn an additional ten (10) days in. the following manner- STAGE ONE 27.3.1 The employee may file a gnevance m writmg with IDS supelVlsor The supervisor shall gIve the grievor his deCIsion in writing WIthin seven (7) days of the submission of the grievance. STAGE TWO 27.3.2 If the grievance is not resolved under Stage One, the employee may submit the gnevance to the Deputy Minister or IDS designee withIn seven (7) days of the date that he received the decision under Stage One. In the event that no deCISIon in writing is received in accordance with the specified tIme limits m Stage One, the gnevor may submit the grievance to the Deputy Minister or his designee withm seven (7) days of the date that the supervisor was required to give his decision m writing in accordance with Stage One. 27.3.3 The Deputy Minister or hIS deSIgnee shall hold a meetmg WIth the employee wIthm fifteen (15) days of the receIpt of the grievance and shall gIve the gnevor hIS deCISIOn in wntmg WIthin seven (7) days of the meetmg. 274 If the gnevor is not satIsfied WIth the deciSIon of the Deputy Mimster or IDS deSIgnee or If he does not receIve the deciSIon withm the speCIfied time the gnevor may apply to the Grievance Settlement Board for a hearing of the grievance within fifteen (15) days of the date he receIved the deciSIon or within fifteen (15) days of the specified tune limit for receIvmg the deCIsion. 4 GENERAL 2713 Where a grievance is not processed within the tIme allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn. 2715 The tIme limIts contamed in this Article may be extended by agreement of the parties in writmg. 2716 The Gnevance Settlement board shall have no JunsdictIon to alter, change, amend or enlarge any provision of the Collective Agreement. The prellllunary objectIon before me proceeded with the introduction of ten exhibits followed by bnef submIssions by the partIes. No oral eVIdence was adduced. The factual baSIS for this objectIon to jurisdiction IS not in dispute. Ms. Tiel has worked for the MinIstry In the unclassified position of Nurse 1 at the Sarnia Jail since August of 1992. She was one of two applIcants Interviewed on September 9, 1993 for the posted positIon of Nurse 2, a classified pOSItion at the jail. The positIon was awarded to NIcole Seager and the gnevor was informed of that result WIthin two weeks of the date of the competItion. Ms. Tiel filed a grievance on January 11, 1994, alleging discrimination based on age. The MinIstry delivered a written reply, WIthIn the time lImits specified in ArtIcle 27.3 1, In whIch the grievance was denied and the gnevor was adVIsed that the gnevance had been filed beyond the tIme lImIts set out In the collectIve agreement. The UnIon InItIated proceedings for a Stage Two meetIng pursuant to ArtIcle 27.3.2. Subsequently under ArtIcle 27.3.3, Regional Personnel AdmInIstrator W B. Thomas was 5 desIgnated by the Deputy Mimster to convene a meetIng with the employee within the f specIfied tIme limIts. The Stage Two meeting between the parties took place on February 23, 1994 On March 10, 1994 the MInistry delivered the Stage Two written response in which the grievance was demed on the finding that the competition "was run fairly and equitably to all candIdates." The written response reIterated that the grievance had not been filed in a tImely fashIOn. There the matter rested for over seven months. On October 27, 1994 the union referred the matter to arbitration for a heanng before the Gnevance Settlement Board. Article 27 4 specifies that an employee who is not satisfied with the Stage Two response may apply to the Gnevance Settlement Board for a hearing of the grievance "WIthIn fifteen (15) days of the date he received the decIsion or within fifteen (15) days of the specified time lImIt for receIving the decisIOn." At that tIme the employer did not object to the late referral of the grievance to arbitratIOn, nor dId it object on that ground at a pre-hearing between the parties on February 1, 1995 As indicated preVIously, the employer first raIsed the objectIon of the late referral to arbItration In a letter, dated July 2, 1997, from Staff RelatIons Officer Anna GulbInski to the umon counsel, Richard Blair The letter was not brought to the union's attention until some SIX days prior to the first scheduled heanng date, although a telephone voice message may have preceded the letter by several days. The partIes submIssIons may be bnefly summanzed. The employer relIes upon the mandatory time-hmits contaIned In the collectIve agreement and, In partlcular, the language 6 of Article 27 13 whIch specifies that a grievance which is not processed wIthm the tIme prescribed shall be deemed to have been withdrawn The employer contends that the penod from the referral to arbitratIon to the tIme of the scheduled hearing is one step and that any objection to JurisdIction may be brought withm that penod, WIth the possible exception of the first day of the scheduled heanng. Ms. GulbmskI contends that the pre- hearing on February 1, 1995 IS merely an admmIstrative process of the Grievance Settlement Board which is not referred to in the collective agreement and should not be consIdered a fresh step In the alternative, the employer argues that the timeliness issue was raised on the filIng of the gnevance and that there was no detrimental relIance by the union on the timelIness Issue of the referral to arbitratIon. Finally, the employer mamtams that this was not a case for the applIcation of the legal concept of "waIver" Reference was made to the following authonties. OPSEU (Simmons) and Ministry of Correctional Services, 598/90 (Goldenberg), Re Canada Post Corp. and Canadian Union of Postal Workers (Gibson) (1992), 29 L.A.C (4th) 7 (Burkett), OPSEU (Fung/Anand) and Ministry of Revenue 1798/89, 104/90 (Stewart), and Service Emplovees International Union. Local 204 and Leisureworld Nursing Homes Limited et. al. (VonKalben), unreported, March 27, 1997, (Ont. DIY Ct.) The union acknowledges that the refernil to arbitration was defectIve in that It exceeded the mandatory time lImits con tamed m ArtIcle 27 4 The union alleges that the employer IS now attemptmg to rely upon thIS defect when no objectIon was made at the tIme of referral to arbItration, or subsequently during the pre-hearing process, until some SIX days pnor to the first day of heanng Mr Blau relIes upon the concept of "waIver" m 7 that the employer's conduct in failing to object to a defectIve procedure SIgnals ItS mtent not to rely upon strict adherence to the mandatory terms of the collectIve agreement. Waiver IS said to be a separate concept from estoppel and a separate matter entirely from the exerCIse of an arbitrator's dIscretIon to relieve against time Imllts. The union adopts the position that the partIes took a fresh step by engagmg m the pre-hearing process and subsequently by allowmg the matter to proceed to a scheduled heanng date. Mr BlaIr cites the followmg authontIes. Re Canada Post Corp. and Canadian Union of Postal Workers (McGrogan) (1991), 22 L.A.C. (4th) 430 (T.A.B. JollIffe), OPSEU (c. Tharakan) and Ministry of Consumer and Commercial Relations, #1978/86 (KIrkwood), and Re Regency Towers Hotel Ltd. and Hotel and Club Employees' Union, Local 299 (1973), 4 L.A.C. (2d) 440 (Schiff) There IS no dIspute that the tIme Imllts in Article 27 are mandatory The language of ArtIcle 27 13 provides that where a grievance IS not processed WIthin the time prescribed "it shall be deemed to have been WIthdrawn." In thIS matter there IS a clear procedural defect whereby the referral to arbItratIon was not processed WIthin the 15 day tIme frame from the date the grievor receIved the Stage Two declSlon on March 10, 1994 As preVIously mdIcated, the union's referral to arbItration was made on October 27, 1994 almost seven months later The Issue IS whether the employer, by failIng to object to thIS procedural defect until SIX days pnor to the scheduled heanng, has waIved non-complIance WIth the mandatory tIme 8 limIts of Article 27 4 WaIver of procedural irregularities IS discussed in Brown & Beatty, Canadian Labour Arbitration, 3rd ed., looseleaf, at para. 2.3130 The paragraph reads in part as follows. The concept of "waiver" connotes not insisting on some right, or giving upon some advantage. It illvolves both knowledge and intention to forego the exercise of such a right. In its application, It IS a doctrine which parallels the one utilized by the civil courts known as "taking a fresh step", and holds that by failing to make a timely objection and "by treating the gnevance on ItS ments ill the presence of a clear procedural defect, the party 'waives' the defect" That is by not objecting to a failure to act within mandatory time-limits until the grievance comes on for hearing, the party then objecting will be held to have waived non-compliance and his objection to arbitrability will not be sustained. Of the authorities placed before me, the Tharakan decIsIOn of Grievance Settlement Board Vice-Chan Kukwood IS partIcularly helpful as the facts are sImilar to those of the mstant gnevance and the collectIve agreement provIsIons are IdentIcal. In that case, Mr Tharakan filed a gnevance on April 23, 1986 allegmg that he had been wrongfully denied the posted position of "Corporation InformatIon Data Clerk." A Stage Two meetmg took place on July 2 and subsequently on July 8, 1986 he was advised that the gnevance had been denied. On October 8, 1986 the union corresponded wIth the RegIstrar of the Gnevance Settlement Board wIth the request that the Tharakan gnevance be consolIdated wIth another gnevance That request was forwarded to the Deputy Mmlster of Consumer and Corporate Relations who subsequently adVIsed the RegIstrar by letter dated January 12, 1987 that the Mmlstry dId not agree wIth the umon's request for consolIdatIOn. The Deputy Minister's letter also stated that the MmIstry was not prepared to waIve the mandatory time lImIts under the collectIve agreement and that m the event the umon proceeded to 9 arbItratIon the employer would raise the issue as a prelIminary objectIon. On February 4, 1987 the Registrar fOlwarded the Mmistry's written response to the union. On March 2, 1987 the umon requested the RegIstrar to arrange for a hearing. Some seven months later the matter proceeded to medIation. At mediatIon the employer raIsed no objection to jurisdiction to the union directly although apparently the matter was brought to the attention of the mediator Umon counsel was formally advised of the preliminary objection the day before the scheduled hearing. At pp 3.4 Vice-Chair Kirkwood stated. The cases of Isaac and McIsaac, Grievance Settlement Board, #742/83 and 24/84 and the Lamb case, Grievance Settlement Board #337/8, clearly support the proposition that the tune limits set out in Article 27.3 are mandatory, and by virtue of Article 27.13 the grievance would thereby be conSIdered to be WIthdrawn if It has not been processed within those mandatory time hmits. The Board does not have the JunsdictIon under Article 27 16 to enlarge the time hnuts. However, contractmg partIes themselves may waive the mandatory time linuts in the collective agreement (Anderson, Grievance Settlement Board, #1483/84 (G Brent)) This can be done eIther by express agreement or as Gail Brent states in that award, at page 5 "By the action of the "innocent" party in failing to object to the procedural irregularity m a tunely fasmon. We believe that at page 210 of Collective Agreement ArbitratIon in Canada Professor Palmer correctly summarized the situation when he wrote the followmg: Like estoppel, "waiver is a legal barrier to the exerCIse of the nghts m a partIcular case, erected by the conduct of (SIC) words of the partIes" Conduct wmch has been held to amount to a waIver mcludes: allowing a grievance to go through the grievance procedure; failure to object at the first opportumty m the grievance procedure;... and an attempt to settle the gnevance. WaIver can also be by verbal agreement. The nght to object at a later stage can be retamed by a statement to that effect at the first opportunity or by a tunely objectIon, even though it IS not raised agam until the hearing. Generally, waIver anses therefore where It is clearly mdIcated that one of the partIes does not mtend to mvoke the procedural provlSlons of the collective agreement. There is no need for detrimental relIance by the other party The onus of establishing waiver is on the party alleging It" Thereby, the Issue IS whether or not the "mnocent party", the employer, acted m such a manner to lead the umon to belIeve that the objectIon was waIved. . 10 In the case before thIS Board, the defect was apparent and the employer conveyed ItS objection to the Registrar at ItS earliest opportumty, but it did not convey ItS objectIOn to the union directly until the date before the hearing. By not saying or communicating any objection to the union after the employer became aware that the gnevance was bemg processed for a hearing and then by participatmg in the medIation process again wIthout communicating ItS objections to the union, the employer is acting m such a manner as to take the next step in the grievance and lead the union to beheve that there was no objection to the arbitrability of this grievance. If the employer had intended to resolve the ments of this case, without walvmg Its right to raIse Its objection, the objection should have been raised prior to the mediation and an agreement reached between the parties that the medIation was occurring "without prejudice" to the Ministry raising the time hmlt objection at the hearing. Like the Tharakan case, the defect was apparent In the Instant gnevance. Vice-Chair Stewart in the Fung/Anand deCIsion, supra, properly sets forth the principle expressed in both the Anderson and Tharakan cases at pp 11-12. The pnnciple that these cases estabhsh IS than an objection based on non-complIance with time lunits is waived when there has been a failure to raIse the objectIOn in a timely manner and the taking of a fresh step prior to raismg the obJection...Once a tImehness objection has been waived it cannot be revived by notice. The facts of the instant gnevance are similar but not identical to the facts of the Tharakan case. In both cases the clear defect in the late referral to arbItratIOn was readily apparent. A dIfference IS that In the matter before me there was already a tImelIness issue raIsed by the employer as to the alleged late filIng of the gnevance. In my VIew, by failure to raise the junsdictIonal objectIon of late referral to arbItratIon m a timely fashion the impressIon IS reinforced that the employer had no objectIon and the foundatIon on WhICh waIver IS based IS made stronger - . 11 As indIcated prevIOusly, a pre-heanng of the ments of the case was held on February 1, 1995 A pre-heanng is a step which IS initiated by the parties themselves. The pre- heanng process Involves a meeting between the partIes wIth a medIator 111 an attempt to resolve the issue or issues in dispute. The pre-heanng, in my VIew, represents a further processing of the grievance on ItS ments and may be saId to constitute a fresh step The pre- hearing took place 111 the absence of any objectIon from the employer as to mIssed time limits in the referral to arbitration. Articles 27 13 and 27 16 make It clear that the Grievance Settlement Board has no authonty to extend tIme hmIts. The case before me has nothIng to do with the arbItrator's authority to extend trme limIts. Simply stated, thIS is a case where the partIes themselves have waived the mandatory time limIt contained in the collective agreement In the referral to arbItratIon. For these reasons I conclude that the employer's objection to arbItrabihty, based on the late referral to arbitration, must fall. The Registrar of the Grievance Settlement Board is therefore requested to arrange for a further hearing date to detenmne the employer's prelrminary objectIon that the gnevance is inarbitrable on account of late filIng of the gnevance DATED at Brantford, Ontario, this 21st day of July, 1997 \::::::- ~~ --=-~ RICHARD L. VERIlY, Q.C. - VICE-CHAIR