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HomeMy WebLinkAbout2002-0243.Smith.05-03-17 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2002-0243 2002-0244 2002-1243 UNION# 2002-0154-0015 2002-0154-0013 2002-0154-0014 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (SmIth) Union - and - The Crown In RIght of Ontano (Mimstry of North em Development and Mines) Employer BEFORE Loretta Mikus Vice-Chair FOR THE UNION GavIn Leeb BarrIster and SOlICItor FOR THE EMPLOYER Sunee1 Bahal Counsel Management Board Secretanat HEARING November 25 2004 2 DeCISIon There are three gnevances before me one allegIng dISCnmInatIOn and harassment, one allegIng a demal of access to Job competItIOn MNOM-117 and the last allegIng demal of access to fifteen Job competItIOns datIng from 2001 to the present. The partIes were able to reach an agreement on several of the IndIVIdual competItIOns contaIned In thIS gnevance but eIght of them remaIn outstandIng. It IS those Job competItIOns referred to In the gnevance that IS the subject of thIS award. The Employer took the posItIOn that these gnevances should be dIsmIssed because they were filed well outsIde of the tIme lImIts In the collectIve agreement and there are no grounds upon whIch thIS Board should be persuaded to exerCIse ItS dIscretIOn to extend those tIme lImIts The Job competItIOns at Issue are as follows #12/01 - Northern Development Officer - MNR - Posted March 30/01 - IntervIews July/Ol - gnevance dated March 12/02 # 63/01 #64/01 #65/01 #66/01 #67/01 - Northern Development AdvIsor - MNR- Posted May 11/01 - IntervIews June 25-27/01 - gnevance dated March 12/02 #73/01 -Northern Development AdvIsor - Tounsm - Posted June 1/01 - IntervIews July 26-27/01 - gnevance dated March 12/02 #94/01 - Northern Development AdvIsor - TransportatIOn - posted August 10/01 - IntervIews November 16/01 - gnevance dated March 12/02 Ms Lynn MartIn has been employed In the OPS for 20 years and IS currently a Human Resource AssIstant. Her major role IS In the field of recruItment and Includes the coordInatIOn of all Job competItIOns She prepares the Job specIficatIOns, obtaIns approval from MBS arranges for the postIng, receIves and reVIews all applIcatIOns She forwards the applIcatIOns and resumes to the area manager for screemng and, when advIsed of the successful candIdate(s) prepares the letter(s) offenng the Job for theIr sIgnature(s) She then closes the file She has been acquaInted wIth the gnevor for some tIme and dunng the 2001-2002 tIme penod recalled reCeIVIng about a dozen calls from hIm about the Job competItIOns at Issue The calls were usually to venfy receIpt of hIS applIcatIOn, and averaged two per postIng. SometImes he called to ask If the posItIOn had been filled. If the offer letters had been sent, she would tell hIm It had been filled. OtherwIse, she would refer hIm to the manager Involved. Whenever he called she would do her best to answer hIS questIOns 3 When she receIved an applIcatIOn her practIce at the tIme was to send out an acknowledgIng letter adVISIng the applIcant that If he/she had not been contacted by a certaIn date, usually 8 weeks In the future, he/she had not been selected for an IntervIew She was very confident that the gnevor had been sent sImIlar letters for all of these competItIOns The gnevor has been wIth the OPS SInce 1980 ImtIally wIth the Mimstry of the EnvIronment and, In 1985 In the Sudbury office of the Mimstry of Northern Development and Mines as an EconomIst 4 In 1993 he was surplus sed and went to the Mimstry of the EnvIronment In the EnvIronmental Assessment Office He remaIned wIth the MOE untIl he was surplus sed In 1999 and worked out hIS notIce untIl March of 2000 He had been wIth the government for over 23 years and he was wIthIn 5 years of retIrement. He wanted to contInue workIng and ImmedIately after he was completed hIS notIce penod he was rehIred on a senes of short contracts wIth the MOE that lasted untIl mId-September of2001 He was unemployed from then untIl October when he was offered and accepted two succeSSIve contracts WIth the MOE In Sault Ste Mane that lasted untIl March of 2002 He had, dunng thIS tIme, kept In touch wIth the Mimstry of Northern Development and Mines He had loved hIS work there and was always desIrous of returmng He applIed for every Job In the Mimstry that he felt he was capable of performIng. At the same tIme he was also applYIng for posItIOns at the Mimstry of the EnvIronment and the Mimstry of TransportatIOn. In all he applIed for between 30 and 40 Jobs In the penod from 2000 to 2001 He was granted IntervIews for several of the MOE posItIOns but was not as successful wIth the MNDM applIcatIOns He confirmed Ms MartIn's eVIdence that he made several follow- up calls to her about hIS applIcatIOns and testIfied that at some pOInt he advIsed her he would have to file a gnevance over hIS lack of success In obtaInIng an IntervIew He had been a Umon actIvIst dunng hIS years of employment and had been a Umon Steward for numerous years He was aware that the collectIve agreement reqUIred gnevances be filed wIthIn thIrty days of the event gIVIng nse to the gnevance He had filed gnevances In the past. He decIded however not to file a gnevance ImtIally because he had hopes that an area manager would help hIm secure a posItIOn. He was also reCeIVIng IntervIews for several of the MOE posItIOns and decIded to concentrate hIS efforts on those Job applIcatIOns When he dId not succeed on any of those applIcatIOns he revIewed the applIcatIOns for the MNDM posItIOns, realIzed he had not been granted any IntervIews for the numerous applIcatIOns he had submItted and filed the Instant gnevance 4 SUBMISSIONS OF THE PARTIES Mr Bahal, counsel for the Mimstry took the posItIOn that the gnevor knew there was a thIrty day tIme lImIt to file any gnevance concermng these Job competItIOns He had both the subJ ectIve and obJ ectIve knowledge of the cloSIng dates and dISposItIOn of these J ob competItIOns through the ImtIalletter acknowledgIng receIpt of hIS applIcatIOn and adVISIng hIm that Ifhe had not been contacted by a certaIn date he was not gOIng to be IntervIewed. AddItIOnally he had conversatIOns wIth Ms MartIn In whIch he was told that the Job had been offered to someone else And yet he waited from 811z to 4 months to challenge them. The gnevor has offered no reason for the delay It was submItted. In support of ItS posItIOn It relIed on the folloWIng cases Wilson and Metropolitan Toronto Housing Authority (1995), GSB # 1386/94 (Mikus) Gambie and Liquor Control Board of Ontario (1998) GSB # 1635/96 (Gray) St. Jean et al and Ministry of Community Safety and Correctional Services (2004), GSB # 201-1122 (LeIghton)Szabo and Ontario Realty Corporation (2001), GSB # 1811/98 (HerlIch) and Aleong and Liquor Control Board of Ontario (1997) GSB # 1318/96 (Gray) Mr Leeb counsel for the Umon, took the posItIOn that the Board should exerCIse ItS dIscretIOn and extend the tIme lImIts under the collectIve agreement, or In the alternatIve, assess each gnevance on ItS own ments Some of the competItIOns referred to In the gnevance Involve lesser delays than others AddItIOnally the Employer has not shown any prejUdICe by the delay and, In the absence of any proof of preJudIce, the Board should allow the gnevances to proceed. The Employer had not suggested that It couldn't proceed. It has not claimed to have lost or destroyed files or that It cannot produce wItnesses to support ItS posItIOn It was submItted that the gnevor was not kept Informed of the progress of these Job competItIOns and he was unable to know the status of hIS applIcatIOn wIthout numerous Inqumes He dIsplayed tremendous Interest In these competItIOns by the number of applIcatIOns he submItted and by the numerous phone calls to Ms MartIn. The Employer knew that he was Intent on obtaInIng a posItIOn and It cannot be said It was unaware of hIS contInuIng Interest. It made no effort to assIst hIm. 5 It was submItted that the nature of the gnevance reqUIres that It proceed. The future employment of the gnevor affects hIS pensIOn nghts and IS of sIgmficant Importance to the gnevor In support of ItS posItIOn, the Umon relIed on the folloWIng cases Re Becker Milk Company Ltd. And Teamsters Union, Local 647 (1978) 19 L.A.C (3d) 217 (Burkett) Kai and Ministry of the Solicitor General and Correctional Services (997) GSB # 3289/92 (Abramsky) J ankovics and Ministry of the Attorney General (1993), GSB # 1102/91 (Kaplan) Hughes and Ministry of Labour (1993) GSB (Barrett) and Wilson and Ministry of the Attorney General (1994), GSB # 279/93 (Roberts) REASONS FOR DECISION The relevant provIsIOns of the collectIve agreement read as follows ArtIcle 22 - Gnevance Procedure 22.2 1 It IS the desIre of the partIes that complamts of employees be adjusted as qmckh as possible and It IS understood that If an employee has a complamt, the employee shall meet, where practIcal, and dISCUSS It WIth the employee s ImmedIate supervIsor wlthm thlln (30) days after the CIrcumstances gIvmg nse to the complamt have occurred or have come or ought reasonabh to have come to the attentIOn of the employee m order to gIve the ImmedIate supervIsor an opportumt, of adjustmg the complamt. 22 14 1 Where a gnevance IS not processed wlthm the tIme allowed or has not been processed b, the employee or the Umon wlthm the tIme prescribed It shall be deemed to have been wIthdrawn. There IS no dIspute that the tIme lImIts In the collectIve agreement are mandatory and that the only JunsdIctIOn to relIeve agaInst those tIme lImIts IS found In the Ontario Labour Relations Act (LRA) whIch states as follows 48 (16) Except where a collectIve agreement states that thIS subsectIOn does not apph an arbItrator or arbItratIOn board ma, extend the tIme for the taking of an, step m the gnevance procedure under a collectIve agreement, despIte the expIratIOn of the tIme where the arbItrator or arbItratIOn board IS satIsfied that there are reasonable grounds for that extensIOn and that the OpposIte pam will not be substantlalh prejudIced b, the extenSIOn. That provIsIOn was consIdered by the Board In the Becker Milk case (supra) and the test It adopted has been umversally accepted by arbItrators and arbItratIOn boards, IncludIng GSB VIce- chairs and boards of arbItratIOn, as the appropnate test to be consIdered In exerCIse of an 6 arbItrator's decIsIOn to exerCIse her dIscretIOn to extend the tIme lImIts under a collectIve agreement. That test IS found at page 220 of the decIsIOn and reads as follows The exerCIse of the eqUItable dIscretIOn vested m an arbItrator under s 37(5a) [now 48(16)] of the Act reqUIres a consIderatIOn of at least three factors The, are (1) the reason for the dela, gIven b, the offendmg parh (11) the length of the dela, (111) the nature of the gnevance If the offendmg part, satIsfies an arbItrator notwIthstandmg the dela, that It acted wIth due dIlIgence then If there has been no prejUdICe the arbItrator should exerCIse hIS dIscretIOn m favour of extendmg the tIme lImIts If, however the offendmg part, has been neglIgent or IS otherwIse to blame for the dela, eIther m whole or m part, the arbItrator must nevertheless consIder the second and thIrd factors referred to above m decIdmg If reasonable grounds eXIst for an eAiensIOn of the tIme-lImIts the purpose of the sectIOn IS to alleviate agamst techmcal bars If the offendmg part, has been neglIgent m ItS processmg of the gnevance but the dela, has been ofa short duratIOn an arbItrator should be permItted to reh on the short penod of dela, as constItutmg reasonable grounds for an extenSIOn. If the gnevance mvolves a termmatIOn ofan employee as dIstmct from some lesser form of dIscIplme that IS also an eqUItable consIderatIOn whIch must be taken mto account m decIdmg Ifthere are reasonable grounds to extend the tIme-lImIts The term reasonable grounds for the extensIOn as found m s 37(5a) of the Act IS not synonymous wIth the reasonableness of the excuse advanced b, the offendmg part, Havmg regard to the purpose of the sectIOn the term cames a broader sIgmficance whIch reqUIres the arbItrator to weIgh a number of factors, mcludmg but not necessanh restncted to those whIch have been set out above ApplYIng that test to the Instant case, I find that the gnevor was not dIlIgent In purSIng hIS claims under thIS collectIve agreement. He has, by hIS own admIssIOn, been an actIve Umon member for a number of years and has filed gnevances In the past. He was fully aware of the tIme lImIts In the collectIve agreement but made a conscIOUS decIsIOn to Wait and see whether hIS efforts at the MOE would bear fruIt before he challengIng the MNDMJob competItIOns I understand that he was commutIng from hIS Job to hIS home at the tIme and felt under consIderable pressure such that he felt he had to concentrate on one effort at a tIme, but he dId so at hIS penl HavIng found that he was not dIlIgent In filIng hIS gnevance, I turn to the consIderatIOn of the second and thIrd factors IdentIfied In the Becker Milk case FIrst, the length of delay IS substantIal wIth respect to all of the Job competItIOns The first J ob postIng occurred some 8 1Iz months before the gnevance, the last almost 4 months after the posItIOn was filled. All of them fall well outsIde the tIme lImIts prescnbed In the collectIve agreement, and, In these CIrcumstances must be charactenzed as sIgmficant. That takes me to the final factor to be consIdered, the nature of the gnevance ThIS IS not a termInatIOn of employment but I accept the gnevor's assertIOn that It has a cntIcalImpact on hIS retIrement. Nevertheless, It IS the nature of the gnevance that persuades me not to exerCIse my dIscretIOn to extend the tIme lImIts The successful candIdates have been In the dIsputed posItIOns for many months I was not told 7 whether any of these job offers Involved moves to other cItIes but gIven that the locatIOns of the posItIOns were cIted as beIng Sudbury Thunder Bay Kenora, TimmIns, Sault Ste Mane and HuntsvIlle I thInk It IS safe to assume that some of them reqUIred relocatIOn. Even If they dId not, the successful applIcants have been In the new posItIOns long enough that they are entItled to feel secure For the gnevor to claim theIr posItIOns after so many months IS unfair Ifhe felt he had a claim to theIr posItIOns, he should have made that claim clear wIthIn the tIme lImIts prescnbed under the collectIve agreement whIch would have put the Incumbents on notIce that they were at some nsk that the gnevor mIght succeed. WhIle the Employer dId not claim It could not proceed wIth the gnevance because of the passage of tIme unavaIlabIlIty of wItnesses or loss or destructIOn of documents, there are subtle and less ObVIOUS consequences that, In my VIew have resulted In prejUdICe to the Employer I note that It would be In the posItIOn of reconstructIng 2001 and 2002 In order to respond to the gnevance That would apply not just to one office but to all of the offices referred to above If the gnevance were to succeed, staff relocatIOns would have to be made that would be dIsruptIve not only to the office Involved but, as mentIOned prevIOusly to the Incumbent of the challenged posItIOn. That mIght have been aVOIded If the gnevor had filed the gnevances sooner Even when the OpposIte party cannot or does not demonstrate substantIal prejUdICe, delay that IS due to a lack of dIlIgence on the part of the gnevor can be sIgmficant enough to persuade an arbItrator to declIne to exerCIse her dIscretIOn to relIeve agaInst the stnct tIme lImIts ThIS IS such a case 8 DECISION For the reasons mentIOned above, I find that the decIsIOn to delay the filIng of thIS gnevance was the result of a delIberate decIsIOn of the gnevor to aWait the outcome of other J ob applIcatIOns and therefore was not dIlIgently pursued In accordance wIth the tIme lImIts under the collectIve agreement. I am not persuaded that It IS appropnate for me to exerCIse my dIscretIOn and extend the tIme lImIts In the CIrcumstances The gnevances, Insofar as they challenge the Job postIng referred to above are dIsmIssed. The Umon has preserved ItS nght to rely on these gnevances In the gnevance allegIng harassment and dISCnmInatIOn. Dated at Toronto thIS 1 ih day of March 2005