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HomeMy WebLinkAbout1980-0107.Williamson.81-02-25 .. ONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD 190 DUNDAS STREET WEST, TORONTO, ONTARIO. USG IZ8-SUITE 270D TELEPHONE! 416/598-0688 107/80 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mr. Robert Williamson Grievo,- - And - The Crown in Right of Ontario Employer Liquor Control Board of Ontario Before: D. D. Carter Vice Chairman 0. Middleton Member M. Perrin Member For the Grievor: Ms. A. Goldberg Toronto, Ontario For the Employer: Ms. C. F. Murray Hicks, Morley, Hamilton Toronto, Ontario Hearin 2: December 30th, 1980 - 2 - The grievor, Robert Williamson personally applied to this Board for a hearing of his grievance alleging unjust dis- missal . At the outset of the hearing counsel for the employer raised two preliminary objections - that the grievance was not arbitrable because it had not been processed under the grievance procedure set out in the collective agreement between the employer and the Ontario Liquor Boards Employees ' Union; and that it should not be heard because the grievor's delay in bringing the grievance had prejudiced the employer's position. It was agreed that we should deal with the first objection initially as the latter matter could be heard later if we decided that we had the jurisdiction to proceed further. It was agreed that the grievor was first employed by the employer on December 4, 1978, and terminated shortly thereafter on January 4, 1979 while still having probationary status. After this termination no grievance was filed, and the employer's first notice of the grievor's complaint was through a letter dated March 24, 1980 from this Board advising that the grievor had personally applied to the Board for a hearing of his grievance alleging unjust dismissal . Counsel for the employer submitted that the failure to file a grievance at all was totally inconsistent with the grievance procedure set out-in Articles 21 and 22 of the collective agreement. Those articles provide: ARTICLE XXI GRIEVANCE PROCEDURE 21.1 Definitions: (a) 'Union' means the Ontario Liquor Baards Emp Zoyees ' Union l - 3 - (b) 'employee representative ' means a person who is the nominee of a person who has a grievance, nominated to act on his/her behalf in respect of the grievance, and the nominee may be a representative of the Union. (c) 'grievance ' means a difference arising from the interpretation, application, adminis- tration, or alleged contravention of the provisions of this Agreement. 21.2 An employee, upon his/her request, maybe accompanied by a member of the Union's Grievance Committee when attending an investigative hearing involving more than one (1) member of management. The employee shaLZ be made aware of the reason for the interview in advance. 21.3 (a) A grievor may present his/her grievance personaZZy 'or may be represented or assisted by a representative of the Union. (b) The grievor sha.ZZ be entitled to examine documents pertinent to his/her personal grievance. 21.4 A grievor shalZ sign and present his/her grievance in writing within fourteen (14) days of the circumstances giving rise to his/her grievance to a person designated by the Chairman of the L.C.B.O. or the Chairman of the L.L.B.O. The grievance shaZZ specify the clause or cZauses in this Agreement alleged to have been violated. The designee shall give a • written reply to the grievance to the grievor within seven (7) days of its receipt. 21.5 '(a) If the grievor is not satisfied with the reply received..pursuant to the provisions of Article 21.4 or if he/she does not receive the decision within the seven (7) day time limit, he/she may present his/her grievance in writing within seven (7) days of (i) the date helshe received the decision, or (ii) the date on which the time limit expired as the case may be, to the Chairman of the L.C.B.O. or the Chairman of the L.L.B.O. 4 - (b) If the grievor fails to act within the time Limit set out in the second step the grievance wiZZ be considered abandoned. (c) The Chairman of the L.C.B.D, or the Chair?wn of the L.L.B.O, shall complete an investiga- tion into the grievance within fourteen (14) days of the date of its. receipt by him and shall give the grievor his decision in 4riit- ing within seven (7) days of the completion of the investigation. (d) Where the grievor has not had an opportunity to be heard by the designee of the Chairman of the L.C.B.O. or the designee of the Chair- man of the L.L.B.O. under Article 21.4, the Chairman of the L.C.B.O. or the Chairman of the L.L.B.O. sha_ZZ h.oZd a hearing and shall give the grievor an opportunity to be heard in an investigation pursuant to the provisions of Article 21.5(a) (ii). (e) Failing settlement of Lhe empZoyee 's grievance the grievance may be submitted to the Cronin Employees Grievance Settlement Board within seven (7) working days following receipt of the finaZ decision under this provision. 21.6 The Union shall have the right to Zodge a grievance based on a difference arising directZy with the Boards. However, such a grievance shaZZ not include any matter upon which an empZoyee is personally entitled to grieve. Such grievance shalt first be pre- sented, in writing, to the Boards, within fourteen (14) days of the circumstances giving rise to the grievance and a meeting will be held within (5) harking days between representatives of the Union and the Boards and the grievance shalt be answered, in writing, by the Boards within five (5) work- ing days of such meeting, following which or failing" settlement-of� the grievance, the Union may submit the grievance to the Crown Employees Grievance Settlement Board within a further period of ten (10) working days. 21. 7 The Boards shall have the right to lodge a grievance as defined above or relating to the conduct of the Union or any officer or representative of the Union or the conduct of the employee. Such grievance shaLL first be presented, in writing, to the Union within h fourteen (14) days of the circumstances giving rise to the grievance, and a' meeting will be held within five (5) working days between representatives of the Union and the Boards and the grievance shall be answered in writing, by the Union within five (5) working days of such meeting, following which or failing settlement of the grievance, the Boards may submit the grievance to the Crown Employees Grievance settlement Board within a further period of ten (10) Working days. 21.8 (a) No grievance may be submitted to the Crown EMZoyees Grievance Settlement Board which has not been properly carried through the Grievance Procedure. (b) The Crown Employees Grievance Settlement Board shall not be authorized to after, modify, or amend any part of this Agree- ment nor shaZZ the Crown Employees Griev- ance settlement Board give any decision inconsistent with the provisions of this Agreement. (c) The determination of a grievance by the Crown ErTZoyees Grievance ,Settlement Board pursuant to the terms of this Agreement is final and binding upon the parties and employees covered by this Agreement. 21.9 At any stage of the Grievance Procedure, the time limits imposed upon either party may be extended, in writing, by mutual agreement. ARTICLE XXII DISCHARGE CASES 22.1 A eZaim by an employee who has completed his/her probationary period that he/she has been unjustly discharged shaLZ be treated as a grievance if a written statement of such grievance is filed by the employee con mencing at the second step of the Griev- ance Procedure (Article 2I.5(a)) with the Chairman of the L.C.B.O. or the Chairman of the L.L.B.G. -within ten (10) days after the employee ceases to work. I • I • 1 - 6 - 22.2 Such special grievance may be settZed under the Grievance Procedure by: (a) confirming the Board's action in dismissing the employee; (b) reinstating the employee with full compensa- tion for time Zoet; or (c) by any other arrangement which may be deemed just in the opinion of the conferring parties of the Crown EmpZoyees Grievance Settlement Board. In particular counsel argued that Articles 21 .5(b) and 21 .8(a) made compliance with the grievance procedure mandatory and that Section 17 of the Crown Emptoyees CoZZective Bar aini Act S.O. 1972, c. 67 as amended should not be read so as to permit an employee to ignore completely these mandatory requirements. Accord- ing to counsel , the effect of that statutory provision was only to prevent the -parties from restricting access to arbitration in respect of certain substantive matters, and not to prevent them from imposing procedural pre-conditions to arbitration such as found in Article 21 of the collective agreement. In making this argument counsel frankly acknowledged that it ran against the grain of this Board's decision In Keelin 45/78, but submitted that the decision should be reconsi- dered in the light of the facts presented by the instant case. Counsel for the grievor, on the other hand, submitted that the collective agreement simply did not provide a discharged probationary employee with access to the grievance procedure. Given this situation, it was argued that the grievor was faced with more than a mere procedural bar, and Section 17(2) of the Act must be read as overriding the terms of the collective agreement, as it was I I I " i 1 in Zoyce 21/76 and Erikeen 12/75. In addition counsel submitted that the Keeting decision had clearly recognized that the indivi- dual employee by operation of the Act had direct access to arbi- tration as an alternative to the route established by the grievance procedure. The issue, as we see it, is whether the complete failure of the grievor to resort to the grievance procedure makes this matter inarbitrable at this time. This is not a case where it is being argued that probationary status precludes the grievor from having the matter arbitrated, as the employer's objection is directed only to the failure to follow the procedural requirements in the collective agreement. While there is some merit in the em- ployer's submission that the mandatory time limits in the collective agreement should be enforced, this argument has been rejected by the Board previously in Keelin9, and then in Moods 224/79. In both cases it was held that the parties could not restrict the Board's statutory jurisdiction by relying upon mandatory procedural barriers 'in their collective agreement. A reading of the reasons given in Kee Ling can leave no doubt as to the fact that this Board has already given careful and thorough consideration to this difficult issue, and in these circumstances it would be inappropriate for this panel to set sail on a completely different tack. Our starting point, then, is the premise that the parties cannot enforce any provisions in their grievance procedure that would limit the statutory jurisdiction conferred upon the Board by Section 17(2) of the Act. This premise, however, does not dictate a conclu- sion that an individual grievor can ignore the grievance procedure a - 8 - entirely, and apply immediately for arbitration of the dispute by this Board. Section 17(2) of the Act reads: (2) In addition to any other rights of grievance under a colZect--ive agreement, an employee c Zaiming, (a) that his position has been improperZry classi- fied; (b) that he has been appraised contrary to the governing principles and standards; or (c) that he has been disciptined or dismissed or .suspended from his employment ?Aithout 'just cause, may process such matter in accordance with the grievance procedure provided in .the collective agreement, and failing final deter- mination under such procedure, the matter may be processed in accordance with the procedure for final determination applicable under Section 18. 1974, c. 135, s. 9 part. We read this provision as evincing a legislative intent that the grievance procedure be invoked prior to any reference being made to this Board under Section 1B. Although this section . uses the permissive verb "may", it is permissive in the sense of allowing the individual access to the grievance procedure and not in the sense of permitting the grievor to avoid the grievance proce- dure completely by moving immediately to arbitration. The language that follows leaves no doubt that this is the intent of the legisla- ture, since it is made clear that a grievance is to be taken to arbitration "failing final determination under such procedure" (the grievance procedure). In other words, an employee asserting a right of grievance under Section 17(2) of the Act must first of all attempt to use the grievance procedure before coming to this Board for arbitration. This conclusion is in our view not inconsistent with the Board's approach in Keeling. That decision interprets Section _ lp _ may well have to justify his delay in carrying this matter through the grievance procedure. Dated at Toronto this 25th day of February 1981 . "D. D. Carter" D, D. Carter Vice Chairman "D. Middleton" D. Middleton Member "M. Perrin" M. Perrin Member lib