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HomeMy WebLinkAbout2005-3698.Samsone.10-08-18 Decision Commission de Crown Employees Grievance règlement des griefs Settlement Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2005-3698, 2005-3699 UNION#2006-0582-0001, 2006-0582-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Samsone) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREVice-Chair Ken Petryshen FOR THE UNION Jorge Hurtado Cavalluzzo Hayes Shilton McIntyre & Cornish LLP Counsel FOR THE EMPLOYERPaul Meier Ministry of Government Services Legal Services Branch Counsel HEARING May 7, July 7, July 22, November 13, 2009, January 12, 2010. WRITTEN SUBMISSIONSJanuary 20, 2010. - 2 - Decision [1]I have two grievances before me that were signed by Mr. R. Samsone and were referred separately to the Grievance Settlement Board (?GSB?) by the Union in March of 2006. One grievance is dated February 1, 2005 (?grievance #1?). Mr. Samsone prepared this grievance in February of 2006 and backdated it. In the statement of grievance section, Mr. Samsone claims that OM16 Tom Angelidis violated certain articles of the Collective Agreement and legislation ?by making a threat of violence (death) against me while in the st workplace on duty during a night shift on Saturday January 1, 2005? and that OM16 Huppmann violated the same articles ?as he was in the Shift Office and witnessed these comments when they were made and did nothing to protect me from this threat nor did he take appropriate actions to inform his Supervisor of the inappropriate comments or actions which Mr. Angelidis displayed thus causing me to be placed in a further poisoned work environment and jeopardizing my Health and Safety.? In the settlement desired section, Mr. Samsone requested, among other things, the removal of Angelidis and Huppmann from the Ministry, a full investigation from an external and impartial party and $100,000.00 as damages. The other grievance is dated February 24, 2006 (?grievance #2?). In the statement of grievance section, Mr. Samsone claims that certain named members of management at the Toronto East Detention Centre (?TEDC?) and certain named members of senior management located at 25 Grosvenor Street violated the Collective Agreement in that they were aware that ?I was threatened with death by OM16 Tom Angelidis while in the workplace and did nothing to protect my health and safety due to the fact that Mr. Angelidis submitted an occurrence report where he denies that any such threat was ever made. Management has not conducted an official investigation and has accepted this falsified document and continues to contribute to an already poisoned workplace and allow this criminal behaviour to exist.? In - 3 - the settlement desired section, Mr. Samsone requests, among other things, that the management who failed to follow the ?Zero Violence in the Workplace Policy? be removed, a letter of apology from each individual who failed to act on the threat, full monetary compensation, $1,000,000.00 in damages due to the conspiracy and cover up by high ranking Ministry officials, a one year leave with pay to recover and a full RCMP investigation. [2] The Employer takes the position that these two grievances are not arbitrable on a number of grounds. It claims that the grievances should be dismissed because of res judicata, estoppel and abuse of process considerations. Counsel made submissions on these issues based on agreed facts, including a number of documents. The Employer also claims that the grievances should be dismissed because they were not filed or processed in accordance with the grievance procedure. More specifically, it claims that the grievances were not filed with the Employer, but instead were simply referred to the GSB, and that they are untimely. Counsel addressed these issues on a separate day of hearing based on agreed facts and the testimony of Mr. Samsone. No one else was called by the Union to testify. [3] In a decision in this proceeding dated July 29, 2009, I described Mr. Samsone?s inappropriate conduct which occurred at the hearing on July 22, 2009, and which led the parties to agree to adjourn the hearing. In another decision in this proceeding dated September 8, 2009, I addressed the Union?s request during a conference call to adjourn this matter sine die because of its view that the inappropriate conduct Mr. Samsone exhibited on July 22, 2009, would likely be repeated on any future hearing date. I agreed to adjourn the hearing date of August 21, 2009, but declined to adjourn the matter sine die.In essence, I instead - 4 - directed that the hearing would continue on November 13, 2009. For completeness, I note that the hearing did continue on November 13, 2009, and on a subsequent date, without incident. [4] The factual context for the Employer?s objections on arbitrability is as follows. Mr. Samsone commenced his employment as a Correctional Officer in November of 1998, at the Whitby Jail. He eventually moved to the Toronto East Detention Centre (?TEDC?), where he became active in the Local Union. He was a steward for a time and then became the President of the Local. Mr. Samsone was the President of the Local Union at the TEDC when the events relevant to this proceeding took place. As a steward and as President, Mr. Samsone was aware of the requirements in the Collective Agreement for the filing and processing of grievances. He had filed his own grievances and would have had some familiarity with the grievances filed by members of the Local. [5] Mr. Samsone described in his testimony what I will refer to as the threat incident. Since this decision is not dealing with the merits of grievance #1, it is unnecessary to refer to this aspect of his testimony in detail. I simply note that Mr. Samsone testified that an incident occurred on a shift which started on January 1 and ended at 7:00 a.m. on January 2, 2005. In his role of Local Union President, Mr. Samsone had permission to prepare and print a newsletter to his members during his shift. The newsletter contained information relating to a possible strike and named every manager at the TEDC. Mr. Samsone indicated that he went to the shift office where Mr. Angelidis and Mr. Huppmann were present. When Mr. Angelidis asked him what he was printing, Mr. Samsone showed him a copy of the newsletter. Mr. Samsone testified that Mr. Angelidis read the newsletter and then said ?If you are thinking of picketing my house, remember the word murder.? Mr. - 5 - Samsone stated that he asked Mr. Angelidis what he said and Mr. Angelidis responded by saying ?You heard what I said ? remember the word murder.? Mr. Samsone indicated that Mr. Huppmann did not say or do anything in response to the comments made by Mr. Angelidis. Mr. Samsone said he was angry and walked away from the shift office. Mr. Samsone testified that Mr. Huppmann first approached him after the incident and then later Mr. Angelidis approached him later in the shift to apologize for the incident and Mr. Samsone told Mr. Angelidis that he did not want to talk to him. Before leaving for home at the end of his shift, Mr. Samsone did not complete and submit an Occurrence Report about the threat incident. Mr. Samsone has never completed an Occurrence Report relating to the threat incident. A Correctional Officer is obliged to prepare an Occurrence Report before the completion of the shift to record any unusual event that takes place during a shift. Mr. Samsone also did not file a grievance over the incident before he left for home at the end of his shift. As he was driving home, Mr. Samsone was involved in a car accident when he was cut-off by a vehicle. Mr. Samsone was taken to hospital with a whiplash injury and he did not return to work until January 25, 2005. [6] On February 1, 2005, there was an incident between Mr. Samsone and Mr. Mitchell, Deputy Superintendent, about the facial hair policy. Again, it is unnecessary to refer in detail to Mr. Samsone?s testimony about this incident. Mr. Samsone testified that Mr. Mitchell sent him home to shave and he believed that he was being suspended. The Employer has a different perspective on this event. Mr. Samsone testified that he had had enough at that point and that he went to the Union?s head office where he met with two Union representatives. He indicated that they met for a couple of hours and that he explained what had been happening recently at work. Mr. Samsone testified that a decision was made - 6 - at the meeting to file an unfair labour practice application with the Ontario Labour Relations Board (?OLRB?) and two grievances, one about the facial hair incident and one about the threat incident. He indicated that he left the paper work relating to these matters with the Union. [7] A series of documents were filed at the hearing relating to the facial hair incident. The first one is entitled ?INFORMAL COMPLAINT REPORT - STAGE 1?. This form is prepared by a manager and reflects that Mr. Samsone complained verbally to him that Mr. Mitchell?s direction to him to shave was a reprisal. The form indicates that the complaint was made at a meeting in the IC?s office on February 1, 2005. During his examination-in- chief, Mr. Samsone acknowledged that he did not speak to anyone in management about the threat incident before February 1, 2005. The next document is the grievance Mr. Samsone prepared and filed over the facial hair incident. The grievance is dated February 18, 2005, and is signed by Mr. Samsone and D. Minns, a steward. The next document is a form entitled ?WAIVER OF TIME LIMITS ? SECOND STAGE HEARING?. It is signed by Mr. Samsone and Mr. Heffering for management, is dated March 10, 2005, and records the agreement to waive the second stage hearing until March 29, 2005. The final document is entitled ?WITHDRAWAL OF GRIEVANCE?. This form is signed by Mr. Samsone on March 29, 2005, confirming the withdrawal of his grievance dated February 18, 2005. [8] The Union, through counsel, filed an unfair labour practice application with the OLRB dated April 6, 2005, which essentially alleges that members of management at the TEDC engaged in reprisals against Mr. Samsone and Mr. Peck, the Union Co-Chair of the Health & Safety Committee, to penalize them for their union activity. Many of the - 7 - allegations made on behalf of Mr. Samsone relate to what can be described as WDHP issues. The Union also referred to and relied upon the threat and facial hair incidents as part of its complaint. Paragraph 20 in Schedule A reads as follows: ?On December 26, 2004, Mr. Samsone was in the Shift Office and managers Angelidis and Huppmann were present. The subject of picketing in a potential future strike came up and Mr. Angelidis said ?Just remember the word murder?.? It is alleged in paragraph 29 of Schedule A that Mr. Samsone was suspended for the day and sent home without pay over the facial hair incident. Included in its request for relief, the Union requested, among other things, that the OLRB order that Mr. Samsone be made whole for any losses and ?An order that in light of the corrosive and threatening comment made by Mr. Angelidis and condoned by Mr. Huppmann, both individuals be ordered removed from the TEDC immediately.? It was through the receipt of the Union?s unfair labour practice application that the Employer first became aware of Mr. Samsone?s allegations about the threat incident. [9] The Employer made a full and detailed response to the Union?s application on April 21, 2005. It requested that the OLRB decline to inquire into the facial hair incident because the matter was addressed in the grievance procedure with the withdrawal of the grievance by Mr. Samsone. It took the position that Mr. Mitchell told Mr. Samsone to go home and shave and return to work, which is what the Staff Facial Hair Policy provides for in the case of a breach, and that Mr. Mitchell did not suspend Mr. Samsone. The Employer responded to the threat allegation as follows: ?The Ministry denies that Mr. Angelidis stated such a comment as alleged. Further, both Mr. Huppmann and Mr. Angelidis were not even working on December 26, 2004. The Ministry submits that such an experienced Correctional - 8 - Officer as Mr. Samsone should have followed Ministry protocol and filed an Occurrence Report, as would be required in the circumstances.? [10] As President of the Local Union, Mr. Samsone was provided with a copy of the Union?s unfair labour practice application and the Employer?s response to the application. Mr. Samsone indicated that he believed that the grievance he had prepared about the threat incident had been referred to the GSB. There is no indication that such a grievance was referred to the GSB or that Mr. Samsone, as President of the Local, was copied with a letter referring such a grievance to the GSB, consistent with the usual practice. [11] Mr. Samsone continued to work at the TEDC until around July or August of 2005 when he went off on short term sickness and then on LTIP for a period of time. He was diagnosed with a medically verified post traumatic stress disorder which restricted him from working as a Correctional Officer in a correctional setting. Mr. Samsone has not returned to work at the TEDC. [12] The hearing for the Union?s unfair labour practice application before the OLRB was scheduled for February 23, 2006. The parties appeared at the OLRB on that day and settled the application by entering into a settlement document dated February 23, 2006. Mr. Samsone signed the document on behalf of the Union. The relevant provisions of the settlement are as follows: ? And whereas the parties wish to settle the Application on a full and final and on a without precedent basis on the following terms: ? 3.The Responding Party acknowledges that the employer shall not seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or to refrain from exercising any - 9 - other rights under the Labour Relations Act or from performing any obligations under the Labour Relations Act, as per section 76 of the Labour Relations Act. 4.The parties agree that the applicant and Mr. Robert Samsone will not pursue in any manner, in any forum or proceeding, any claim or demand associated with the Responding Party?s decision not to refer Mr. Samsone?s WDHP Complaint dated July 14, 2004 to an external investigator due to lack of ?particulars?. 5.The parties agree that this settlement is without prejudice to any other proceedings between the parties including but not limited to outstanding Grievance Settlement Board hearings, subject to paragraph 4 noted above. 6.The parties agree that threats of violence including threats of death are not appropriate in the workplace and will not be tolerated. 7.The terms of this settlement are not an admission of liability by the Responding Party ? [13] It was the day after settling the unfair labour practice application that Mr. Samsone prepared grievances #1 and #2. Mr. Samsone testified that management had indicated at the OLRB on the previous day that he had not filed a grievance about the threat incident. He stated that on February 24, 2006, he recreated the grievance that was originally prepared on February 1, 2005, and dated it February 1, 2005. He indicated that grievance #1 therefore relates to the threat incident itself. He testified that he also completed a new grievance on that day. He indicated that grievance #2 deals with management?s failure to investigate the threat incident and to protect him. As noted previously, Mr. Samsone refers in grievance #2 to an occurrence report submitted by Mr. Angelidis in which he denies making the alleged threat. This information would have been disclosed to the Union during the unfair labour practice proceeding. On both grievances, Mr. Samsone signed as grievor and in the space reserved for the Local President. Mr. Robert Gordon signed both grievances as steward. The space on the grievances for indicating who the grievance was submitted to in management is blank. Both grievances were sent by facsimile to the Union?s head office on March 2, 2006, from the Durham East Probation & Parole office. This was Mr. Gordon?s - 10 - work location at the time. The two grievances were then referred separately to the GSB from the Union?s head office, each with a covering letter dated March 2, 2006. The referral letters were received by the GSB on March 6, 2006. [14] During a teleconference call on May 1, 2006 with Vice-Chair Harris, the Union requested that grievances #1 and #2 be consolidated with three other grievances filed by Mr. Samsone that were before the GSB. In a decision dated May 24, 2006, Vice-Chair Harris denied the Union?s request. After this event, it appears that nothing happens with grievances #1 and #2 for some time. [15] In letters to Union counsel dated July 25, 2007, and another dated January 29, 2009, Employer counsel raised a number of issues in connection with grievances #1 and #2 which he suggests need be addressed. I note that this Union counsel is not the same lawyer that appeared before me to deal with the arbitrability issues. In these letters Employer counsel outlined the preliminary issues that the Employer intended to raise. In both letters, counsel maintained that both grievances had not been submitted to an employer representative and asked whether this was disputed and if so, counsel requested the name of the person the grievance was filed with. Counsel did not receive a response to these letters. Following an inquiry from the GSB about the scheduling of these grievances for hearing, Employer counsel indicated on October 29, 2008 by email that the Union had not brought these grievances forward for scheduling and indicated that the Employer reserved the right to object further given the Union?s delay in scheduling these matters for hearing. - 11 - [16] The Correctional Investigation & Security Unit (?CISU?) conducted an investigation into the threat incident based on Mr. Samsone?s allegation. Mr. Samsone was interviewed by the CISU investigator about the threat incident in December of 2007 and again in February of 2008. In a Memorandum dated May 5, 2008, the Superintendent of the TEDC advised Mr. Samsone that ?I have reviewed the investigation report and accepted the findings, which determined that no clear and convincing evidence was discovered or provided to suggest that Mr. Angelidis made a direct threat to you or that he made any comments which he intended to be threatening. As such, no further action will be taken with respect to this matter.? [17] Mr. Samsone made a claim to the WSIB for Traumatic Mental Stress arising from the threat incident. A Claims Adjudicator wrote to Mr. Samsone on March 13, 2006, advising in his decision that ?A claim was established and an investigation completed as you were claiming your life was threatened at work.? The decision reviews the statements that were provided to the investigator by Mr. Samsone, Mr. Angelidis and Mr. Huppmann. It is unnecessary to review this decision in detail. In reciting what Mr. Samsone told the investigator, it was noted that Mr. Samsone indicated that he had filed a grievance in February of 2005 over a facial hair policy and then filed an unfair labour practice regarding the threat from 2004. There is no indication that Mr. Samsone told the investigator that he filed a grievance in February of 2005 about the threat incident. In their statements to the investigator, Mr. Angelidis and Mr. Huppmann denied that Mr. Angelidis threatened Mr. Samsone. The Claims Adjudicator did not allow the claim after concluding that he was unable to establish any proof of a direct threat to Mr. Samsone and that the criteria for a traumatic mental stress claim had not been met. The WSIB decision was filed in this - 12 - proceeding because the Employer initially intended to make a res judicata argument based on the decision. The Employer elected not to make such a submission when the arbitrability issues were addressed. [18] I will first address the Employer?s contention that grievances #1 and #2 are not arbitrable because of estoppel and abuse of process considerations. The foundation for these positions is the settlement of the unfair labour practice application (?the Settlement?) and Mr. Samsone?s reliance in grievance #2 on a document that was disclosed in the unfair labour practice proceeding. Employer counsel argued that the threat incident was a part of the unfair labour practice application that had been settled by the parties and that the Settlement is a bar to the Union pursuing the grievances. He submitted that the Union was estopped by the Settlement and that pursuing the grievances in light of the Settlement also amounts to an abuse of process. Employer counsel submitted that reliance on documents and information provided to the Union in the unfair labour practice proceeding in grievance #2 constitutes a violation of the deemed undertaking rule which also amounts to an abuse of process. The Union took the position that the Settlement and the reference in grievance #2 to a document provided to the Union in the unfair labour practice proceeding are not a basis for precluding the hearing of grievances #1 and #2 on their merits. [19] Counsel referred to a number of decisions during the course of their submissions. Employer counsel referred me to the definition of ?proceeding? in Black?s Law Dictionary, Eighth Edition, and relied on the following decisions: OPSEU (Dale et al) and Ministry of Health and Long-Term Care, GSB No. #0783/00 et al. (Abramsky); Re Apex Metals Inc. and th C.A.W. ? Canada, Loc. 1524 (1997), 64 L.A.C. (4) 289 (Palmer); Re Cuddy Food Products - 13 - th and U.F.C.W., Locs. 175 & 633 (2003), 121 L.A.C. (4) 56 (Etherington); Re Silgan Plastics Canada Inc. and U.N.I.T.E. H.E.R.E. (2007), 96 C.L.A.S. 124 (Swan); Re Saint-Gobain th Abrasives and C.E.P., Loc. 12 (2003), 120 L.A.C. (4) 72 (Burkett); Re Lof Glass of Canada th Ltd. and C.A.W., Loc. 2225 (1995), 47 L.A.C. (4) 410 (Petryshen); Re Quinsam Coal Corp. th and U.S.W.A., Loc. 9347 (2002), 111 L.A.C. (4) 237 (Larson); Niagara North Condominium Corp. No. 125 v. Waddington, [2007] O.J. No. 936 (C.A.); Antoncic and Ministry of Community Safety and Correctional Services, PSGB No. P-2007-0665 (O?Neil); andAntoncic v. Wylie, [2009] O.J. No. 1277 (S.C.J.). Union counsel relied on the following decisions:Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77; Re Proboard Ltd and th C.E.P., Loc 49-0 (2002), L.A.C. (4) 371 (Kaplan); Rasanen v. Rosemount Instruments Limited (1994), 17 O.R. 267 (C.A.); Danyluk v. Ainsworth Technologies Inc., [2001] 2 th S.C.R. 460; and, Re Legacy Hotels Corp. and C.A.W., Loc. 4270 (2004), 132 L.A.C. (4) 437 (Burkett). [20] It is clear from the facts that Mr. Samsone is alleging that he was threatened in the workplace by a manager in grievance #1, a grievance he prepared on February 24, 2006. The same allegation, among others, was included in the unfair labour practice complaint which was resolved by the parties on February 23, 2006. The Settlement even contains a term, although an innocuous one, which arises from the threat allegation.In grievance #2, Mr. Samsone refers to an occurrence report that was provided to the Union during the OLRB proceeding. In my view, these are not the circumstances which would make grievances #1 and #2 inarbitrable. - 14 - [21] The cases relied on by Union counsel deal with situations where a grievance was found to be inarbitrable because the same issue had been raised in an earlier grievance that had been settled by the parties or decided by an arbitrator. In these circumstances, it is appropriate to recognize the sanctity of a settlement by finding that the Union was estopped from proceeding with an identical grievance or concluding that the Union had engaged in an abuse of process. In my view, the circumstances in the instant case are significantly different and therefore not governed by the same principles. The claim advanced by the Union in the unfair labour practice proceeding was that management conduct in relation to Mr. Samsone and Mr. Peck was based on their role in the Union and an effort to penalize them for their union activities. The allegations set out in the unfair labour practice application which claimed a contravention of the Labour Relations Act were resolved by the Settlement. The mere settlement of the unfair practice application, by itself, does not preclude Mr. Samsone from filing a grievance about the threat incident for the purpose of claiming a violation of the Collective Agreement. The nature of the claims in each of these proceedings is different, even though an allegation is common to both. [22] It is always open to the parties when settling issues in one forum to specifically provide that neither party can raise those issues in another forum. A good illustration of this point can be found in paragraph 4 of the Settlement where it was agreed in very broad language that the Union and Mr. Samsone will not pursue ?in any forum or proceeding? the Employer?s decision not to refer Mr. Samsone?s WDHP Complaint dated July 14, 2004 to an external investigator. There is no term of the Settlement, however, which provides that the other allegations or issues set out in the unfair labour practice application, including the threat incident, shall be treated in a similar way. In my view, the terms of the Settlement do - 15 - not restrict the Union from proceeding with grievances #1 or #2. The sentence in the preamble indicating that the parties wish to settle on a full and final basis is specifically limited to the settlement of the Application. Paragraph 5 merely indicates that the Settlement is without prejudice to any other proceedings between the parties. When read in its entirety, the paragraph does not indicate that the Settlement is with prejudice to any future proceedings, other than the one set out in paragraph 4, referred to previously. The terms of the Settlement do not bar the Union from pursuing grievances #1 and #2. [23] I agree with the general principle that the violation of the implied or deemed undertaking rule can constitute an abuse of process. In Antoncic v. Wylie,supra,the Court stayed the plaintiff?s action after finding that it was based solely on documents he obtained through the grievance arbitration process. In grievance #2, Mr. Samsone grieves that management did not investigate the threat incident and did not protect his health and safety. There is no indication from the facts as to how Mr. Samsone formed the conclusion as to what management did or did not do about the threat incident, once management became aware of it. It is likely that he believes management did not do anything to protect his interests simply because he has no knowledge about what was done by management, if anything. The only document he refers to in grievance #2 is Mr. Angelidis?s occurrence report wherein Mr. Angelidis denies making a threat. There is no basis for concluding from the facts that Mr. Samsone is basing this grievance on the one occurrence report or solely on information that the Employer provided during the unfair labour practice proceeding. Although the Union may be precluded from relying on the Angelidis occurrence report, there is no basis for concluding that proceeding with grievance#2 would amount to an abuse of process. - 16 - [24] For the foregoing reasons, the Employer?s motion to have grievances #1 dismissed because of estoppel and abuse of process considerations and grievance #2 because of the deemed undertaking rule are hereby dismissed. [25] I now turn to the Employer?s claim that grievances #1 and #2 are not arbitrable because a failure to comply with the grievance procedure and because they are untimely. Employer counsel argued that a grievance cannot be arbitrable when there has been a complete failure to follow the grievance procedure. In the alternative, Employer counsel submitted that the delay in the preparation of the grievances is extreme and that there are no reasonable grounds to extend the time limits. Employer counsel also submitted that an extension of the time limits is inappropriate because the Employer has been prejudiced. Counsel also relies on the lengthy delay between the time the grievances were prepared and when the Union took steps to have the grievances heard as a further basis for deciding not to hear the merits of the grievances. The Union took the position with these objections as well that there was no reasons advanced by the Employer that should preclude the grievances from being heard on their merits. In particular, Union counsel argued that there were reasonable grounds for me to exercise my discretion to extend the time limits in this case. [26] In support of his submissions, Employer counsel relied on the following decisions:OPSEU (Faulkner) and Ministry of Community Safety and Correctional Services, GSB No. #2006-2093 (Petryshen); OPSEU (Kavanaugh) and Ministry of Community and Social Services, GSB No. #2007-0136 et al (Harris); OPSEU (Berday) v. Ontario (Ministry of Transportation), [2008] O.G.S.B.A. No. 240 (Devins); OPSEU (Seager) v. Ontario (Ministry of - 17 - Community, Family and Children?s Services), [2004] O.G.S.B.A. No. 35 (Mikus); OPSEU (Johnston) and Ministry of Attorney General, GSB No #2009-1147 (Dissanayake); and, OPSEU (Fox et al) and Ontario Human Rights Commission, GSB No. 2001-0507 (Harris). Union counsel referred to the following decisions during his submissions:Re Becker Milk Company Ltd. and Teamsters Union, Local 647 (1978), L.A.C. (2d) 217 (Burkett); Re Greater Niagara General Hospital and Ontario Nurses? Association (1981), 1 L.A.C. (3d) 1 (Schiff); Re Vale Inco Ltd. and U.S.W.A., Local 6500 (2008), 96 C.L.A.S. 294 (Burkett); OLBEU (Aleong) and Liquor Control Board of Ontario, GSB No. 1318/96 (Gray); Re Moncton (City) and City Hall th Employees Assn. (2004), 134 L.A.C. (4) 404 (Gorman); OPSEU (Sidhu) and Ministry of Community Safety and Correctional Services, GSB No. #1996-0701 et al (Abramsky); Re Toronto (City) and Toronto Civic Employees? Union, Loc. 416 (2007), 91 C.L.A.S. 50 (Starkman); Re Jewish Family and Child Service of Metropolitan Toronto and C.U.P.E., Loc. 265(2006), 84 C.L.A.C. 307 (Levinson); OPSEU (Stone) and Ontario Clean Water Agency, GSB No. #1111/99 (Johnston); Re Ajax Precision Manufacturing and U.S.W.A., Loc. 9042 th (1999), 85 L.A.C. (4) 280 (Shime); and, James Bay General Hospital v. Public Service Alliance of Canada, [2004] O.J. No. 4666 (Div. Ct.). [27] The relevant provisions of the grievance procedure contained in Article 22 of the Collective Agreement are as follows: 22.1It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable. STAGE ONE 22.2.1It is the mutual desire of the parties that complaints of employees be adjusted as quickly as possible and it is understood that if an employee has a complaint, the employee shall meet, where practical, and discuss it with the - 18 - employee?s immediate supervisor within thirty (30) days after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee in order to give the immediate supervisor an opportunity of adjusting the complaint. 22.2.2If any complaint or difference is not satisfactorily settled by the supervisor within seven (7) days of the discussion and/or meeting, it may be processed within an additional ten (10) days in the following manner: STAGE TWO 22.3.1If the complaint or difference is not resolved under Stage One, the employee may file a grievance, in writing, through the Union, with the senior human resources representative in the ministry or his or her designee. 22.3.2The senior human resources representative or his or her designee shall hold a meeting with the employee within fifteen (15) days of the receipt of the grievance and shall give the grievor his or her decision in writing within seven (7) days of the meeting with a copy to the Union steward. 22.4 It the grievor is not satisfied with the decision of the senior human resources representative or his or her designee or if he or she does not receive the decision within the specified time, the grievor may apply, through the Union, to the Grievance Settlement Board (GSB) for a hearing of the grievance within fifteen (15) days of the date he or she received the decision or within fifteen (15) days of the specified time limit for receiving the decision. ?. 22.14GENERAL 22.14.1 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. ? 22.14.3 Time limits contained in Article 22 may be extended by agreement of the parties in writing. ? 22.14.6 The GSB shall have no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreements. [28] There is no dispute about how grievances #1 and #2 were processed. In contrast to how the facial hair incident was challenged, Mr. Samsone did not make any effort to discuss the threat incident with a supervisor as required by stage one of the grievance procedure. Once he prepared the grievances, neither he as a grievor or as the Local Union - 19 - President filed them with anyone in management at the TEDC. Of course, in the absence of filing the grievances with management, the stage two meeting mandated by the grievance procedure did not take place. It is the timely decision of management flowing from the stage two meeting which triggers the right of the Union to refer the grievances to the GSB. In this case, the grievances were prepared by Mr. Samsone on February 24, 2006, sent to the Union?s head office by facsimile on March 2, 2006 and then referred by the Union on that day to the GSB. There is no indication that the Employer agreed that the grievances could be processed in this way. Indeed, the Employer has consistently taken the position that Grievances #1 and #2 were not arbitrable because they were not processed in accordance with the grievance procedure contained in the Collective Agreement. [29] I agree with Employer counsel?s characterization that there has been a complete failure in this instance to comply with the grievance procedure. The grievances were not filed with the Employer and the steps set out in the grievance procedure were completely ignored. The obvious purposes for which parties have a grievance procedure have been completely thwarted in this instance. Unless the parties were to agree otherwise, there is an obligation on a grievor or a party to ensure that the steps of the grievance procedure are followed. As article 22.14.6 provides, the GSB has no jurisdiction to alter or amend a provision of the Collective Agreement, including of course the grievance procedure provision. Although the focus of article 22.14.1, the deemed withdrawal provision, is on timeliness, the importance of following the grievance procedure is captured by the article. Arbitrators have consistently found that a failure to comply with the grievance procedure will deprive the arbitrator of jurisdiction to hear a grievance. What has occurred in the instant case goes beyond a mere technical breach of the grievance procedure. It is my conclusion - 20 - that the complete failure to comply with the grievance procedure, particularly the failure to file the grievances with the Employer, deprives the GSB of jurisdiction to hear grievances #1 and #2. As the Employer has consistently maintained, these two grievances are not arbitrable. [30] Counsel devoted considerable time during argument to the issue of whether I should exercise my discretion to extend time limits in this case. Given that the grievances were never filed with Employer, and not simply filed in an untimely manner, there is an issue as to whether the extension of the time limits is at all relevant. In any event, given my determination that the grievances are not arbitrable because of a failure to comply with the grievance procedure, it is unnecessary to address the timeliness issues. [31] At the conclusion of his evidence, Mr. Samsone described the impact the threat incident has had on his life. He also provided me with a written statement that refers to his medical condition and his desire to have his grievances heard so that he can get closure and ?try to repair the damage to the hole in my soul this Ministry has created.? Although one can be sympathetic to Mr. Samsone?s description of his personal circumstances, I cannot take jurisdiction over these grievances by ignoring the failure to process them properly through the grievance procedure. - 21 - [32] For the foregoing reasons, the Employer?s objection to the arbitrability of grievances #1 and #2 is upheld. Accordingly, grievances #1 and #2 are hereby dismissed. th Dated at Toronto this 18 day of August 2010. Ken Petryshen, Vice-Chair