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HomeMy WebLinkAbout1996-0632GOERTZEN97_05_04 -- ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONrARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1 Z8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACS/MILEITELECOPIE (416) 326-1396 GSB # 632/96 OPSEU # 96B711 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Goertzen) Grievor - and - the Crown in Right of ontario (Ministry of Health) Green's Ambulance Service Employer BEFORE R J Roberts Vice-Chair FOR THE N Roland GRIEVOR Counsel Roland & Jacobs Barristers & Solicitors FOR THE J Batty EMPLOYER Assistant Manager Green's Ambulance service HEARING February 21, 1997 April 30, 1997 1 INTERIM AWARD At the outset ofthe hearmg m thIS matter on February 21,1997, the representatIve for the employer, Mr Batty, objected to jUnSdIctIOn on the ground that the gnevance was referred to arbItratIOn after the tlme lImIt estabhshed m the collectIve agreement had expIred. Counsel for the umon, Mr Roland, responded that he was taken by surpnse by thIS ObjectIOn smce thiS was the first tlme that any ObjectIon based upon tlme lImits had been raised. Mr Batty agreed that the tlme lImit ObjectIOn had not been prevIOusly made nor otherwIse brought to the attentIOn of the umon and the gnevor Mr Roland requested an adjournment to permit him adequate time to prepare to meet thiS ObjectIOn. ThiS request was granted. The matter came on once agam for hearmg on Apnl 30, 1977 At thiS tlme Mr Batty and Mr Roland made their submissIOns upon the prelImmary ObjectIOn. For reasons which follow the ObjectIOn IS dismissed. Mr Batty essentially based the prelImmary ObjectIOn upon several proVISIOns of the collective 2 agreement. These provISIOns are set forth hereInbelow. 705 Iffinal settlement of the gnevance IS not reached at Step 2, then the gnevance may be referred In wntmg by eIther party to the Gnevance Settlement Board for arbItratIOn at any tIme wIthIn ten (10) days after the declSlon IS gIven under Step 2, and If no such wntten request for arbItratIOn IS receIved wIthm the tIme lImIt, then It shall be deemed to have been abandoned. 7 06 By mutual agreement of the Company and the Umon, the tIme lImIts stated m the gnevance procedure may be extended. However, such agreement must be confirmed m wntmg 8 02 The Gnevance Settlement Board shall not have any power to alter or change any of the proVISIOns of thIS agreement, nor to gIve any deCISIOns InCOnSIstent WIth the terms and proVISIOns of thIS agreement. It was submItted by Mr Batty that the gnevance was abandonned because the referral to arbItratIOn took place outSIde the ten-day tIme lImIt established m artIcle 7 05 of the collectIve agreement. From the exhibIts, Mr Batty noted, the response at Step 2 took place on June 11 1996 There was no referral to arbItratIOn by the umon untIl June 26, 1996, whIch was about five days outSIde the ten-day lImIt. As any result, It was submItted, the gnevance must be "deemed to have been abandoned" wIthm the meamng of artIcle 7 05 Mr Batty further submItted that the Board dId not have any jUnSdIctIon to reVIve the gnevance There was no wntten agreement to extend tIme lImIts as set forth III artIcle 7 06 of the collectIve agreement, above Moreover artIcle 8 02 of the collectIve agreement forbade the Board to make any changes to the collectIve agreement or gIve deCISIOns mconsIstent WIth ItS terms In lIght of thIS, It was submItted, the Board had no chOIce but to allow the employer s ObjectIOn to jUnSdIctIOn and dIsmISS the gnevance ,., -' Mr Roland made several submIssIons m response These were as follows (1) The factual foundatIOn for the employer's prehmmary ObjectIOn had not been proven upon a balance of probabIhtIes, (2) Under the provIsIOns of the Labour RelatIOns Act, as mcorporated by reference mto the Crown Employees' Collectlve Bargammg Act, the Board IS granted jUnSdIctIOn to extend tIme hmIts and the collectIve agreement dId not exclude thIS statutory prOVIsIon, (3) The above jUnSdIctIOn should be exercIsed m the present case because there was no eVIdence of any prejUdICe to the employer caused by the bnef 5-day penod that elapsed beyond the tlme hmIt for referral to arbItratIOn, (4) In any event, the tlme hmIt specIfied m artIcle 7 05 of the collectIve agreement was not mandatory but merely duectory; and, (5) The employer waIved any ObjectIOn to jUnSdIctIOn based upon the tlme hmIt specIfied m the collectIve agreement for referral to arbItratIOn by waItmg untIl the first day of hearmg to raise the Issue In connectIOn wIth hIS fifth and final submISSIon, above, Mr Roland referred to Re Falconbridge Nickel Mines Ltd. And Sudbury Mine, Mill & Smelter Workers' Union (1973), 2 L A. C (2d) 195 (Rayner) In that case, a gnevance was not presented at stage 2 of the gnevance procedure wIthIll a mandatory tIme hmIt estabhshed m the collectIve agreement. The employer Waited untIl the arbItratIon hearmg to raise an ObjectIOn to jUnSdIctIOn based upon faIlure to comply WIth thIS tIme lImIt. Referrmg to Re U S. W, Local2251 and AIgoma Steel Ltd. (1963), 14 L A. C 242 (Hanrahan) the Board concluded that because the defect m the gnevance procedure was apparent on the face of It, It was too late tc raise an ObjectIOn based upon thIS defect at the arbItratIOn heanng Bv waItmg so long, the Board Said, the employer "led the umon mto a sense of secunty that the tIme lImIt proVISIOn would not be mvoked " 1d. at 198 4 Mr Roland submItted that, hkewIse, the employer herem led the umon IlltO a sense of securIty that the tlme hmIt provISIOn of artIcle 7 05 of the collectIve agreement would not be mvoked, and as a result, It was now too late to raise an ObjectIOn based upon thIS tlme hmIt. He noted that about eIght months had passed between the tlme of referral to arbItratIOn and the first day of hearIng m thIS matter, and not once had the employer mdIcated that It would rely upon a tnne hmIts obJectIOn. Because of thIS, Mr Roland submItted, It must be concluded that the employer Waived the tlme hmIt. I agree I cannot accept the explanatIOn that Mr Batty gave m response to Mr Roland's submISSIOn upon the Issue of Waiver Mr Batty saId that he Waited untIl the first day ofhearmg to raise hIS ObjectIOn because the tlme hmIt m questIOn governed referral to arbItratIOn and he thought that the first pomt at whIch he could object to the tlmehness ofthe referral was the first day of hearIng But here, the defect was apparent on the face of the referral, a copy of whIch was sent to Mr Batty If he mtended to challenge JUrISdIctIOn based upon thIS defect, Mr Batty should have so notified the Board and the umon wIthm a reasonable time after the referral was made, not eIght months later ThIS mordmate delay could not help but gIve the umon a sense of securIty that the time hmIt prOVISIOn would not be mvoked. It essentIally constltuted a waiver of the tIme hmIt. The employer cannot now 1m oke It. . 5 In lIght of the Board's ruhng upon the Issue of Waiver, It WIll not be necessary to consIder the other legal Issues raised by the partIes The prehmInary objectIon to JUrISdIctIOn IS dIsmIssed. Upon applIcatIOn by eIther party, thIS case wIll be scheduled for a hearmg on the ments Dated at Toronto, OntarIO, thIS 4th day of May, 1997 ! ----...-