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HomeMy WebLinkAbout1981-0272.McNamara.81-10-23180 DUNDAS STREET WEST. TORONTO. ONTARIO. M5G 1Z8 -SUITE 2100 Telephone 416/598- 0688 272/8 1 Between : Before: IN THE MATTER OF AN ARf3ITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD For the Grievor: For the Employer: H ear i ng: OPSEU (Mary E. McNamara) G ri evo r And The Crown in Right of Ontario (Ministry of Consumer and Corn m er cial Relations) Employer Prof. R.J. Roberts Vice Chairma Mr. R. Russell M ember Mr. A.G. Stapleton Member Mr. N. Luczay, Grievance Officer Ontario Public Service Employees Union Mr. J. Zarundny Counsel Ministry of the Attorney General September 2, 1981 -2- INTERIM AWARD At the outset of the hearing in this matter, the Employer gave notice that it was raising three preliminary objections to the jurisdiction of the Board in this case. The balance of the hearing day was devoted to hearing evidence and argument relating to the first two of these three objections. The Board agreed to issue an Interim Award ruling on these two objections prior to the commencement of the next hearing day, which hopefully would be devoted to hearing the final preliminary objection and, with the agreement of counsel, the substance of the grievance to be arbitrated. The first objection to jurisdiction raised by the Employer rested upon the failure of the Union, the Ontario Public Service Employees Union, to apply on behalf of the Grievor "to the Grievance Settlement Board for a hearing of the grievance within fifteen (15) days of the date he (or she) received the decision...". See Article 27.4 of the Collective Agreement. The second preliminary objection also was based upon a failure to comply with requirements of the grievance procedure as set forth in Article 27 of the Collective Agreement. This objection focused upon an alleged failure by the Grievor to comply with the requirement of Article 27.2.1 that before filing a grievance "(ah employee shall first discuss the complaint or difference with his (or her) supervisor within twenty (20) days of first becoming aware of the com plaint or difference ." We resolve both preliminary objections against the Employer. The facts in this case indicate that the Employer must be deemed to have waived -3- the alleged procedural defects. Our reasons for reaching these conclusions will become more apparent from what follows. The First Preliminary Objection: Fifteen Day Time Limit of Article 27.4 of the Collective Agreement: The Alleged Failure to Comply With the The facts which are relevant to this contention are as follows: On March 29, 1981, apparently after receiving an unfavourable Step II reply, the Grievor sent a letter to her Union Representative requesting him to proceed to the next stage of the grievance procedure. The Union did not act upon this request until April 24, 1981, when Mary A. Mohammed, an Administrative Assistant with the Union, wrote to the Registrar of the Grievance Settlement Board, requesting a hearing on behalf of the Grievor. The cover letter from Ms. Mohammed stated "The endosed grievances were not sent to you in time through inadvertence of a clerk in this office. The matter was subsequently brought to our attention by the Ministry through its enquiry as to whether they were submitted to arbitration." It appears from a date stamp of the Grievance Settlement Board upon the letter that it and the documents which were appended to it were not received by the Board until May 5, 1981. Without doubt, the Union had failed to comply with the fifteen day requirement of Article 27.4 of the Collective Agreement. On May 11, 1981, the Registrar of the Grievance Settlement Board notified Mr. D.A. Crosbie, the Deputy Minister of the Ministry of Consumer and Commercial Relations (the Employer) and Mrs. J.E. Service, Director, Personnel Services Branch of the Employer, that the Board had received the application from the Union regarding the grievance of the Grievor. Attached -4- to the correspondence from the Registrar were copies of the documents which had been filed by the Union. As previously indicated, these documents all were dated April 24. The correspondence from the Registrar concluded 'Further notice will be given as to the time and the place of the hearing." The Employer did not notify the Registrar that it was taking the position that the grievances of the Grievor were inarbitrable because of failure to comply with the time limit specified in Article 27.4. Indeed, the evidence was that subsequent to receipt of this notification from the Registrar, the Employer discussed with the Union this matter as an "alive" grievance in the context of a mediation between the parties. This seems consistent with the disclosure by Counsel for the Employer at the hearing that he did not become aware of the ground for this objection until he reviewed the file on the day before the hearing. We find that by this time it was too late for the Employer to make this objection. The objection already had been waived. As was stated by H.D. Brown in Re U.S.W. and Construction Products Inc., Canadian Division (1970 22 L.A.C. 125, "Where a defect in the grievance procedure is apparent on the face of it, and the other party makes no objection to it up to the time of an arbitration hearing, it is then too late to raise the objection, and the defect will be deemed to be waived." (Citing Re U.S.W., Local 2251, and Algoma Steel Limited (1963, 14 L.A.C. 242 (Hanrahan)). Here, it was apparent on the face of the documents that were appended to the notice from the Registrar of May 11, 1981, that the Union in its efforts on behalf of the Grievor had failed to comply with the fifteen day requirement of Article 27.4 of the Collective Agreement. Yet from the time it received this -5- notice until the day before the hearing, a period of about four months, the Employer never suggested that it was objecting to the arbitrability of the matter because of failure to comply with the time limit. Indeed, the Employer behaved in just the opposite manner, as indicated by its conduct during the mediation attempt. It is not open to the Employer to claim that its own ignorance of the possibility of successfully raising an objection based on time limits shields it from the consequences of "sleeping" on its rights. The right is that of the Employer, not of Counsel. A similar contention apparently was rejected by Professor Rayner in Re Falconbridge Nickel Mines and Sudbury Mine, Mill and Smelter Workers' Union (1973, 2 L.A.C. (2d) 195, when he said "Nowhere in the grievance procedure is there a suggestion that the company objected to the arbitrability of the matter based on failure to comply with time limits. Indeed, the evidence of Mr. McKay was that he was not even considering the problem of time limits." Id. at p. 198. Finally, we reject any suggestion that because the issue involves a time limit for filing with the Grievance Settlement Board, no earlier occasion existed upon which the Employer might have raised the issue. In this regard, we refer to the facts of Re S.G. Keeling and The Crown/Ontario Ministry of Transportation and Communications, Grievance Settlement Board Case No. 45/78 (Prichard), application for judicial review dismissed, Re Attorney General for Ontario and Keeling (1980), 30 O.R. (2d) 662 (Division Court). In that case, immediately after receiving notice that the Union applied to the Grievance Settlement Board requesting a hearing, the Employer sent a letter to the Board placing on record, both with the Board and with the Employee -6- Representative, that "the Ministry (of Transportation and Communications) does not intend to waive the limits established by the Collective Agreement." The preliminary objection based on failure to comply with the fifteen day time limit of Article 27.4 of the Collective Agreement is dismissed. The Employer is deemed to have waived its right to object to arbitrability on this ground. Second Preliminary Objection: Failure to Comply With the Procedural Requirements of Article 27.2.1 of the Collective Agreement: In the light of our disposition of the first preliminary objection, we need devote little space in this Interim Award to the substance of the second. Article 27.2.1 of the Collective Agreement appears to require although we do not decide the issue that before filing a grievance in writing with his (or her) supervisor, the aggrieved employee must "first discuss the complaint or difference with his (or her) supervisor". In the present case there was considerable testimony sometimes confused and confusing regarding whether this step occurred prior to the filing of the written grievance. On the view that we take of waiver, however, this is a question that the Board need not decide. There is no doubt that the grievance of the Grievor was processed through the various stages of the grievance procedure. In so doing, the Employer never indicated that it would object to arbitrability on the ground that there had not been compliance with Article 27.2.1. This alleged procedural defect was first relied upon by the Employer at the arbitration hearing. In these circumstances, the Employer must be deemed to have waived any right that it might have had to object to arbitrability upon this ground. This preliminary objection is likewise dismissed. -7- DATED at London, Ontario this 23rd day of October, 1981. R.J. Roberts, Vice Chairman R. Russell, Member A.G. Stapleton, Member