HomeMy WebLinkAbout1981-0665.Union.82-02-16Between:
; : .’ ./ : :-, , l -.
Before: r ..,,.~
Before
F'dr the ~GrieGdr: 'ys;+: Sudge, ,coun'&i ~"‘: " ._' .- :,: .. - Cameron, Brewin b Scqtt I,. ,' ,.:; ?< ,.. .','::
For' the'Emplb$e~j"'J;A.'Bake~, Cciu+.elz"' ~: ,'.
Hicks, Morley ,, 'j.. Hamilton, StewaFt, Storie _ _ 2.. _.. .-.
Heari;n<: 8: “y-2 Fe-&;hary~‘2&.;-19~2 ~:~, -. :: ‘ ':>I,
,: :: _ ',:
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Thisgrievance arises out of the proposed relocation
by the Ministry of Health of Ontario Health Insurance Plan
("OHIP") Head Office~employees from Toronto to Kingston. The
Union grieves the Ministry's proposed interpretation of the Job
Security and Termination Payment provisions in Articles 24 and
52 of the Collective Agreement between the parties and seeks a
declaration that the provisions of Articles 24 and 52 apply to
OHIP employees who are unable or unwilling to relocate to
Kingston.
F.
Two preliminary objections made on behalf of the
Employer were rejected by the majority of this Board.
Re: OPSEU, Union Grievance (February 16, 1982, 665/81). On
February 24th‘ 1982 the board heard the evidence and arguments
of the parties as to the interpretation of the Collective
Agreement.
The parties are not in dispute as to the factual
background of the grievance. In June, 1980, the Premier of
Ontario announced that Head Office OHIP facilities would be
relocated to Kingston over a period of three years. As of
November 13th, 1981 the day after this grievance was filed,
there were 352 bargaining unit employees scheduled for
relocation. By February 23rd, 1982, this number had fallen to
284 as a result of retirements, death, resignations,
inter-ministry transfers and previous relocations to Kingston.
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. 1, / . :. Z’ i ..:.
While some reidca,t$,on$:have, al$e&y, pcc%urred:ed,. most are scheduled 3;__'.. . . _ . -. ,, <-.
to take place in June and September 1982 and' in 1983. Of the
employees originally affected by the proposed relocation, ; * '; something ff& .th+&;.l$B~ Il;;;~nd..:'td:.re:lo'cate to K&;t;n,‘
: 'f),bi\;, ‘ j ~?-. '. CT;-. 7 i t; -. ',, ~., -.->,:. f, .:I ~,f
;. ,_ ,'J... ~_. :. : -.: ,li i . :, .I.
---" li, $I -r~ i- Thtise :OHIP emplpy~es;:wil~~~~g"'~o. relocate to Kingston ', 5 ,F : i :i> z, .'. :Ho;e;F;i :, I,. ': !J .2 .i are guaranteed jobs. , with respect to those unwilling
or unable to relocate for family or other personal reasons, the
T ‘Employer .has expre'ssed' its ~inte~ct‘ioi to ap&'y Section 20 of The -
pub'$;c se&& :&Jt. .." -' I R.S.O. 1988,' c.i'i8 as'% 'the date 'the job +
becomes -availat& inKingston:. Section 28 provides: ). .--_>.
. ,
20 : .~ A pu).l.gk&.Int ;io &:'&b;e& y& ;luty ;&&
offiscial~-:leave ;for a period of:, two weeks.or such longer period as is prescribed in'the regulations may, ,by an instrument in writings be declared by- his deputy ,*. ministei'tc have abandoned his position, and thereupon
his,~ position-be,comes-~,vacpn& and, he ceases to- be a - _ ., public servant.'
. '-.,>,A~;.:! , _ .~. . >.,~-':
,' ' 7; The' central‘issue to be determined by this Board is ,. .,
'whether 'the~relocation' of 6BIP employees from Toronto'& -,.. -,
Kingston constitutes 'a~ lay-off'within ‘the meaning of Article 24
of the Collective'~Agrebment. The reievant ;$rt& of Article
r~.. or,.. 24 read as follows:~ ,. '.:-
24.1 Where a lay-off may occur by reason of shortage of
work or funds or the abolition of a.position or other material. change in organization, the identification of
a. s,urplus employee in an administrative district or unit, -ihstitution or other such-work area and the subsequent assignment,,displacement or. lay-off shall
be iii accordance with seniority subject to'the condition's set out in this Article.
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24.16 For purposes of Article 24, lay-off means the same as release as per Section,22(4) of The Public Service
Act Revised Statutes of Ontario, 1970, Chapter 3%.
Section 22(4) of The Public Service Act reads:
A deputy minister may release from employment in
accordance with the regulations any public servant where he considers it necessary by reason of shortage of work or funds or the abolition of a position or other material change in organization. .-
Counsel for the Union argued that the transfer of ORIP
Head Office facilities is a lay-off wi,thin Article 24 of the
Collective.Agreement by reason of the 'abolition" of the
bargaining unit positions scheduled to,relocate or .
alternatively, by reason of a material change in the
organization as exemplified by the abolition of the positions.
Mr. Goudge argued that whiles the Employer has'offered the
employees concerned equivalent employment opportunities in
Kingston, in fact, they will no longer be required in Toronto.
Mr. Goudge advanced the proposition that OHIP Head Office
positions have a geographical limitation or element so that
relocation will result not in a transfer of positions but in
their abolition and in the creation of new positions in
Kingston, albeit that the job content will remain the same.
In support of the view that-the OHIP jobs have a
geographical constraint, counsel for the Union made reference
I- ;. .
to the : , - "Position Specification and Class Allocation Pam", / ,p- 3 ) , 5 7 :, ,-1y .' a job :, ;i::: .> % i. y- .: .; .> .,'.,' ;i : :
.~ ! -vJ< description form used by the Employer,+ the classification . / '. .:3 ! .' r;:* '. : :i ./ '-s
:,, ,:, 2 : Process. ,That Form specifies a geographic location for the job -.c :.,<,.'aL. .: '2 "- ~. j 1 ,-I 'I . 'c: L. :
.both,by name a,~~!:_al,_numeric,-~esignation. Ms. Ellen Steyens. an .._. _ $3 ,T.,.-<.! ), -( I, : 5,“ i : ..-. n c ' ~:
OPSEU employee, : .' r: s:: - : : _ testified thatshe was familar.with the ri::. .?~: .,..'C.ir y.>. .>l i .s..:-
documents issued in the government classification process and '. :c 1 yp?.i, I f; _, 0, .a-:n' .; _. ,,- :'_, .q;:i:r;: :_ + ,-
.' identified the Position Specification and Class Allocation Form . ;,: -,i~. 2 .>.~ .^.._.. ~._ .' _' )f‘l,' ;I .;i i ;- >
as an employer-prepared document used for all jobs. ,The form :,; ~5~.. : : / ,;:, c . s ", p, ': ; ._ .- _ :: :i '.
sets out, among other things, the position title, the
department,,. Ms. Stevens *', :-. .‘; the position co$e.and locttipn. -: .'": .- .; !_ :. -i .:i:,
testified that the position code would ,ch,~~~e if,~the.position .L!.:r. : 6.: -:.~ location were varied fromToronto to Kingston. : 9' ;,-. -:;yf __,_ )'. _ :<,; .. ;:" ~'L.~ ~5,:. ::,.:;
; :.,.. . .1 'F '. .,'A .["
In further support of the a;g,ument ,that.each OHIP '-f '~' .;. .. - :,1+Ll. : .~'
positionhas,a geographica1~d.imension,3 =::~, i,,,.. 3 , : -': n , Mr Coudge referred the i' :> :
board ,d_. . to the geographic& ;ontra;$nts adopted.by the parties in i .?_ . : ': :. .- -, '...>,<.',::..' .L
the assignment provisions in Artic,le 24.2.1, 24.2.2 and 24.2.3 .:~ -1 _'. _' - t
of,the Collective Agreement. Y',: T.. These'prov)sions stipulate that in <- ~,' :. : . i i
the event of a lay-off, a surplus~. ,yy.p,:ory i5 to,, .t.f ,assGmd on ..".I : _I . . _:_y ~'~'.1'.
the basis of sen.iority to ,a;v,acancy in his ministry, or in -.. i? ., % ,. -,.,A ;,
s.- - another ministry.within a 40-kilometre radius of his ,,_ - .!,l -. . ,..-
headquarters. .: -*.c It is only with mutual.,~onsen~.,t.~at .a surplus :: 5 r
employee shall be assigned to a vacancy in his own,.m.+,nfstry
r beyond a 40-kilometre radius. Mr. . . -I __, l; Goud,ge. argued that if the . _ ‘ -'part,Sces.to;'the*Co~le~:tive Agreement'had,,$o~t.,recognised that ., ;. _. +-.. - ,. _..A , 'Ii,;.: _
.
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positions have some geographical constraint, there would have
been no need to limit the geographical area in which a surplus
employee can be compelled to accept a vacancy. Counsel for the
Union also referred to the..Ontario Publ'ic Service Job
Application Form as another indication that each job has a
geographical component. The Application Form inquires of
Mr. Goudge cited the decision of the Grievance
Settlement Board in Travers 79/79, 213/78 (Supp. Award) in
may be differentiated further support of the view that positions
applicants whether they would be willing to relocate in Ontario
and asks applicants to state their preferred location.
by their geographical dimensions. In Travers, the Board, in
exercising its remedial authority under Section 113(3a) of The -
Crown Employees Collective Bargaining.Act had ordered the
grievor reinstated to a "substantially equivalent position".
When the parties failed to agree on the components of a
substantially equivalent position, the Board was called upon to
determine the question. Three positions had been proposed: one
in Hamilton-Wentworth, one in Mimico, and the other in Niagara.
The employee lived in Ridgeway, approximately one hundred miles
from Toronto. The Board noted at page 10 of the Supplementary
Award:
In the search for factors of equivalence between jobs, several arise as possibilities: pay level, job content, geographic location and level of skill and
responsibility. In this particular case, the Union
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stressed 'the 'import&$ of preservi'ng 'pay'leSe1
and ..geqgraphic location.,., In the particular,., -0. ‘ci'rcumstan&'s; thi's is undbrstandable. ;.. In fh.is
particular case* .we.would agreethat geo,graphic . .:lo&ti&.i;'s a rele+ant'factor i'n ev'aluating the jobs.
The job offered in Mimico.is not substantially 7. .: -" equiv%lent'to those .in Tho~~:6‘i‘d"and“H~imil.ton; Even though the Ministry ,offered' to pay for the ,re.location I'.'. ., .,- >expens&.,' " t~~l'fin;;;~i~i"cost:".o~ 'mov,i;b Yfrbm Ridgeway
to Toronto would be onerous as would.the.alternative of dom~mu.<ing'-103'.miies 'eacb"way daii'y." Furthermore,
the G_rievor,had family obligations .in ,Rid+geway which ,.. ~. : 2i would' prevent' him from'%v~n'g; Therefore~i'iri this case., a positipn :,within commuting distance .from -. Ri.dger;'ay'is-necessary to-meet the-require&&s of
;s,.;s(Ja). .; y,.:: ,,.. :, ,;I,:: ':~ ; -;:- - ,?.
. 1.' _. :. I.., ;.'*“ ,~' -', _.,^ -.‘; ,-iri<,‘ ..L. ,;, _I. ~.
,The Board d.,+d go on to sa,y,.that.,!h;!!i,s, conclusion shpuld;.not be ,: :.I i.. :--'~ .1 '.
regarded as holding that a job must always be found.in the s&e .~: : ., ;. _ .:“I, -. ::~a:' 4 .
geographic+ location_ . . MS. ,r ...i .~Baker argued:zFhat:the.Travers case _I :- ^. : .
could be of little help in determining the issue,!facing this
Board, i.e. the interpretation of the OPSEU Collective
~Agr,eement. Ms. Baker stated that in Travers, the Board was . !
concer,n$lon.l,y with~the~exercisq of a remedial j.urisdiction. .'. :> _~ ~1 ~, I _ . . -. L .~
While we agree with Ms..Baker that-the-circumstances :of the case i- ., _ i.
before us are differ,ent from those in Travers, we are of the : , :_ : ,, f-'2 -. ,j 2, : -' .< i ,
view that th,e cT?e of,f+~.sorne,~;~~rt :?r the proposition that I . -3.'
one element of a Fsition may be jts ,geographic component. ., , . 2 ,.~3. :' ,c; -- _.
,. ~_. 'Ji.. ; (. ;.r,
Counsel for the Bmployerti,argued that, no lay-off has A.:.. .,.., _" '. : .'~ . .
occurred nor will a lay-off occur' within the meaning of Article _ 1.' i?. :': .::.
.24 of~.the,Collective AgreemeTt,.asa~result.,of: the relocation of -.,L-!... ,, :f.
OHIP employees because lay-off is defined in Article 24.16 to
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mean the same as "release" in Section 22(4) of The Public
Service Act, and there is no evidence that the Employer
contemplates the "release" of OHIP employees whose positions are
scheduled to relocate. In fact, Ms. Baker argued, those
employees con'cerned have been guaranteed their jobs in Kingston.
It is only upon the .failure of~the em,ployee to report to
Kingston that he or she',Uill be deemed to have abandoned the
position within Section 20 of The Public Senrice Act. Ms. Baker
advanced the view that *release' and "abandonment" are entirely
different concepts, and that barring a finding of bad faith on
the part of the &pldyer, the Board is not entitied to' look
behind the Employer's characterization of the events and to
characterize as a release or lay-off what is merely a'-potential
abandonment.
In support of this position, counsel for the Employer
cited the decisions of the Grievance Settlement Board in Re:
Tucker 206/78 and Re:'Leslie 80/77. In our'view, the cases
cited by Ms. Baker do not support the proposition that the Board
must respect the Employer's characterization of the events. In
Tucker, the employer took the position that it had released the
grievor from employment in accordance with Section 22(S) of The -
Public Service Act which provides that a deputy minister may
release any public servant during the first year of his
employment for failure to meet the requirements of his position.
:
,. _, -, .,
“,
Section'2'2(5) 'of T& Public Service' Act: In discussing its
jurisdiction to review grievances of this kind, the Board
'.Until'the Suprem$.Court-of' Canada-has said '.
:otherwisel ,th,is.board isof the, opinion,thatthe Employer cannot camouflage either disdipline'or the terminat,ion of an employee for,,a.reason other than
employee's~~failure-to'meet the-requirements of his position, asthat phrases is, explained in the. Square Di Co; Ltd. case, 'by the guise of‘a "re'lease" under Section 22(5).of The Bublic Service Act. This Board, therefore, has-jurisdiction to review a'cont'ested
release- to, ensurq,it is what it purports to.be. _ .~ _,. _ ..- _-_". .'-.~ =
._ “-:. ~. ..‘T ,.
The Board went, on to,,s<ta.t,e:, that in the adjudication o.fisuch a
grievance, it was without jurisdiction to.evaluate and weigh the
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reasons of the employer unless the collective agreement provided
otherwise. The Board need only be satisfied that the employer,
in good faith, released the employee for failure to meet the
requirements of his position. Ms. Baker has argued that this
Board is without power to review,the Employer's characterization
of the events, barring a finding of bad faith. In our view, the .
decision in Leslie does not stand for this proposition, but
rather for the proposition that once a Board hasreviewed the
employer's characterization.of its actions and has determined
that the action is what hit purports~ to.be, then it is without
jurisdiction to review the correctness..or the merits of the
employer's decision, barring a finding of bad faith. That
principle is equally applicable to the issue of whether or not
the failure of an employee to move to Kingston may be
characterized as an abandonment of the position.
Counsel for the Employer submitted that while the
issue of whether a lay-off depends in each case on the
interpretation of the collective agreement, lay-off generally
has been defined to involve the reduction of the work force'by
the employer rather than the loss of a job due to the employee's
action. Re: General Wire h Cable Co. Ltd., (1972) 1 L.A.C.(2d)
155 (Rayner); Re: Sealed Power Corp. of Canada (1971) 22
L.A.C. 371 (Shime) at 376. Ms. Baker argued that there could be
no lay-off where as in the case before us, the employee's
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position continues ,to,.exist a~thpugh.~the.loc,ation!~has been . _ . ,. . ..,
changed.:.Furthennore ,,I,qounse~..,for;.,th~eYEmployer argued that ~__
:,, where,.as In the case .before us, ,ther.e was. a ,pr,ovincial -.
._ employer,,there c,ould..b~,.?o,geographical component, to a position
so.,that a relocat.ion,C~,~ld..be,.r,ega,rd,~d as; a, lay:off ;resulting --. /
~,from.an abo$ition.of. position.. ,: I. -_ "MS Baker submittedthat the _ ~....
:,ocation notation,on;the Position SpecificationI,and:Glass
.All~ocationl,Fo~~should,not be-regarded as;part of the jobs, _:
. . descriptions, but;merely as a,statement that,atla-particular _ .
., point.in.time,~the position..wasJocated in Toronto.,. Ms. Baker ,. .~ _
:;i ~.~. rejected the,,eroposition fhafathe;,reference to..q,IQ-kilometre ” ~. , ~.
limit inArticle 24.2.l., 24;2<2.and 24,2.3 illustrated the \. ~. ,L
recognition of the parties that governments pos~Ltjon.s were .., .
: geographically constrained. Furthermore; the enquiry'on the
' government AppJicationForm relaying. to,wil.lingne.~s to relocate _. - ‘. . " .
would only,.be relevant were the Board,.faced with the., : . . .,.\, ,_ I
interpretation.of~an individual contract of employment. .-~
i .I> : . . ;. ;il: $0
In support of her afgument,.Ms. Baker.ci$ted the deci- .'
sion of the Public Service Grievance ,Board in -Re,: ,De Azevedo I
884/78 in which the grievor complained against the transfer of
. his position from Toronto fo.Sault Ste. Marie. The grievor had
, indicated on his application form an unwillingness to relocate.
The Board ruled iin favourof the employqr, holding that there
'. : was no contraiztual guarantee of ,the permanent-location of the
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grievor and consequently, no breach of contract. We are of the
view that the De Azevedo decision is of little relevance in
determining whether OHIP positions may be viewed as having a
geographical component, having regard to the terms of the OPSEU
Collective Agreement.and the particular circumstances of the
case before us. That decision does not consider the issue of the
grievor's status if he did not report to the new location, but
was presented by the parties on the basis of whether the
employer's action constituted a repudiation of the grievor's
individual contract of employment. The relief sought by the
grievor fnc1uded.a direction that his'job remain at its original
location. In the case before usno one challenges the right of
the Employer to take the~steps towards relocation that have been
taken. The issue is as to what contractual rights arise from
those steps and whether the circumstances constitute a lay-off
within the Collective Agreement language before us. We would
also note that in the De Azevedo decision very general
propositions are expressed in an area that ordinarily would
require individual consideration of particular contractual
language and employment practices.
The issue to be resolved on this arbitration relates
directly to Article 24.1 of the Collective Agreement and whether
in the circumstances the employees, who are unable or unwilling
to relocate to Kingston, are entitled to the contractual rights
r
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of employees who have been ‘ki;L-‘c. p, ‘I A-,,*: “. iaid-off.- The issue may be even more
'1 L “'X, ;I,.-> '~narrdwly'stated~Las' the de'terminbtion of a r.7 : ,..z < i .,. whether or not the
_. '; : _ i I :, ~ ::;'L, :.':y:‘ i. '0. .,I -.',.i 1.F.. y G '1 '-3 ;',
positions occupied by incumbent employees in Toronto have a
'T.5 . geographic component. ic- S.. r, .k:'T~.lL-e, ; r : I 'It i: d&view that the s"ituation has
been characterized correctly by the Union as a situation of * .: . . ,, .'; 1. I .' &dff al;d ~.io;'.' t~edfeasons ;;.&;.;J;;;dn 'S;;! ',,, "nion. The
(i- -' ., ., c :. > -I.:,:. i " --'. I$...
technical arguments submitted by the Union-have-been summarized
:. . .
in-this a;ard. ',::I. .* IS? ~1 f' In ad'dition' k-those, Mr..&udge a'rgued that on r : $. -5, -; pi .> .~ I-\ :;...$. ~-, -. 1. the basis'of'reality'and. geasoL;bleness a ~job in Kingston could~ .I.. ',>, _.~.._ :' 5; c-"' ; . I - -; ;: : ii;s, <. ,.
not reallstically'be viewed'& then same'job that previously .._. :. ,'I .: , ~_. ,:..-I ,: _
_' eiTit& inToronto.
$:"' -< 7. ; '2 '; ..
If the'wh~le~zprocess"~~re as simple and .I _., : i direct
r. .>,,,,; ,:‘ 7~'
as asserted~by the~'E&oy&; one
?; ,sL;'.' .'~y
has' to wonder at all of
::I"'- 8, __-. -ii, . _, I~' : .
the fuss and' furore-that“accomp~~ied the~a~~ounkement of the
,.... I: : ~. ,.. 1.. ,~ I
move and/the repeate;i.asslrance~'Z.ontained~in~'Empioyer-generate ,.: _. 1 . .: .-~. ,... I
‘documents of'fair treatmentr'and' &nsideration'to-the employees
r? ;:>.: ;..~-f. ,'C ,,,,? :.-, .!.
involved. For example, in the documentation p'rovided on the
,:&z. .~, _ ., - w ,., 7 :; i TII Hear~ng.an~ ir; pa';ficuiar in"~Cs~atementooof Dennis R. Timbrel,
.'.I--, - ,.Z.~. ; 3 .. * r the kinister of Heaith," filed as kxhi%8t.j on &e.kearing , the
:i -r.; ,: a?
statement was made:'. :,c: i i .z:.
_ .'.., _ L ., : , When a job i,-&o,eJ'.aiaJ y&; 'ieg;it .;c;upies
that job, the civilservant will be offered the job in
the new location.
,-. ,-
This is hardly consistantwith the Employer's position now that
:-. -' _._ ~. - * ? I -7 -, c, +,~?Z _‘ . . -: L ,
fhe'job in the new location is stili'the employei's=;ob and that
5 . I ,,. ; ; '. .,
if-he doesn't .&hoi up he &ill be‘considered to have abandoned
it. It seems.quite inappropriate for an Employer to be
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"offering" an employee a job in Kingston, or to be
"guaranteeing" an employee a job in Kingston, if that very job .
is in fact already the Employee's job subject to the job . .
security provisions of the Collective Agreement.
ident
admin
,i
i
fication of a surplus employee is related to "an I
strative district or unit, institution or other such work
It may further be noted that in Article 24,1, the .:. ._
area.” The Employer's position is, in substance, that where the
job content remains the same the employee can be transferred
anywhere within the Province of Ontario to perform that work.
The specific language of the clause however defines narrower
boundaries outside of which the Employee becomes a surplus
employee rather than one who has abandoned the job. The actual
identification of those boundaries in the abstract is not within
the purview of this arbitration. Each situation has to be
viewed on its own facts and in the light of what is reasonable
in all the circumstances. The contract language in Article 24
indicates, without specific definition, that the parties have
agreed that those limits do exist.
The Employer's argument creates a further serious
problem in logic if extended to its ultimate conclusion. If the
present expressed intentions of employees are followed, some 10%
of them will in fact move to Kingston. On the Employer's
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~.argument:theriremaining;.,9Q%B.~of the~;jobsma.y have .incumbents until
.I .I<. :,:two.cdays after~ the ;date.-.fo,r the ;commencement of;qthe.:3job: in
.- o Kingston;;ncAt.that point the Employercla.imsthat the,rijobs can
.Ts::,be declared <abandoned:. ~:.iThey.:wtil$ .presumabZy, have tolrbe
.q I~..,:s,ubsequen~ly:ifilled;,~by'the. Ministr,y.i : ..The filling 'of ::those
: _pos,itions ..will ,also.haveJotbe in ~.comp&iance+with &he,{ Employer's
> ,-I -' ,posting andselection:obligations:as specified.in~the,Collective
,Ag.reement. It would therefore appear that,-if the Employer's
~position is well founded, the Employer envisages operating the
OHIP facil
portion of the normal complement of permanent staff. :: . '. t. '5 '_ Y.~ .- : It‘is therefore our conclusion that those employees
^ who -are' scheduled to relocate in Kingston and who are unable or
unwilling to' relocate and who do not find positions elsewhere in
the, interim, either pursu‘ant to provisions of the Collective
Agreement or pursuant to the particular arrangements that have
been-introduced by'~the%mployer to locate them in other jobs,
ought not to be considered to have abandoned their jobs; and, if
not placed elsewhere in accordance with the terms of the
.Collect'ive'Agreeme~nt)' must be considered as having been released
- - _~. _l_..-__,~ . ~..” . . ._ within-'the provisions of Section 22(4) of The Public Service
Act. - The situation is correctly characterized as a lay-off
within the provisions of Article 24 and those employees are
entitled to the contractual remedies that flow from that status.
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No challenge is made to the Employer's right to.~make the
fundamental changes in the organization that are proposed but
the Employer cannot escape the contractual consequences of those
changes simply by.categorising them as job transfers. They
constitute in substance'the .abolition of.certain positions under
the Collective;Agreement and the'.creation of other positions.
In consequence the grievance is allowed ,,and we find that the
Union is entitled to the declaration sought in the grievance.
^. .,. ...:,
DATED at Toronto this3lst .day of March, 1982.
.R. L. Kennedy Vice ChaLrman ;_ ,/'
R. -Russell Member
"I dissent" (see-attached)
H. J. Laing Member
DISSENT
;. I regret. that J; a,m qbliged .to..dis,sent from the,ma,jority
award in,thig,;matter. I_.' '.l.. ., I ., , _ :,, <_
'"'J' [; -4 The pacts' and :t?he r~iev:a':n:t ~rovi:i.olij of the"20j'j~ctive
.,~ ., : ',~+ _.
agreement have been set out by my colleagties: The~'brguments of
,-,the>parties: have~,b,eet'~ clearlCy,o);~ined., I therefore see no need ,.
,:. ~~,reP~a~lw~a~, hasJbeen.state$ bY.,the,ma.&rity on 'thesematters.
.) ..3: ' .',~
The majority
,c.j ',i \: -,
havc?corHctly stated that the 'i&&in this
-1,. . , . .
case J '. : - cori$rns the..;&lication'bf Article' 24.lin til'&e circumstances , ~. o;) &ii "d;\owl'y; .whe;& 'the ;;gti on; o;r& ;d.'b$' thi::' i nc"mbent
: :!C ._.. ;,I .; : . '., ,_,, ': !,C pi '.. . T,..
emolbyees' in ~Tororito have's geographic comporient:' The-majority
.;i',,, :. r' : ; s
have concluded that the latter question is.to be answered in the
affirmative and, partly as a consequence, that Article 24.1 applies
in, that the employees have been.laid-off. .With.respect, I disagree \
,_ '_ Ed _
..i'~.; with .b,oth conclusions., . ': .,TTj,. -, TV ,'i ,, 8, .;s;;.. :,
;:i I
'kirst I wil'l' deal' with
.I_ ,, ( : [‘ ., ^ _I.
the.'q&tioh o'fwhe'ther' the positions
have a gebgraphit~comp6nen;. &Athe~ ?&jo;i~~,o~ the ibard and ,
- .~" . ..'~
the 'rep&ntatives of the~'bart~'eS.cdnsist~~tl4 ~&%'the.term "jobs"
_ ~~,
"'in referri&'to'the &i&o%bcc$ied by the releva?'employees.
1- . . .
A' job, ih every da;"langua$ahd in' arbltral la$uage,' ' is the
,I
collection or group of duties.tb 'be p'erfotied in"theHorma1 course
,, ,~.;~ of. a day!s work by a? employe$.I~ A ",posi.tion", in contrast, can be
:-used in,two ways; eithe,r as a more_elegan,t. synonym for job or a .
,desi,gnation or ti,tle,:for a,job. ,_ In either eve@, neither term
.:has a geographic element.;,,. : ,/. ~:.lc'.s, I:., : . .'
‘b As an example let$'*&sider the‘.job of &retary. The
:.;.. ,'
'. fact that'a person'~cc;pi~;"such a job for a partictilar employer -
or has such a position - says nothing about where the job is
to be performed. It is the tasks to be performed by the
employee that define the job, not the office or location where
the employee is assigned.
In this case the jobs of the employees in the bargaining
unit will be relocated or transferred from Toronto to Kingston.
The jobs are unchanged in that the work to be performed is to be
the same. It is important to recall that since the bargaining
unit is not restricted geographically and is therefore province-wide
in its application, it follows that the transfer of the jobs, as
well as the transfer of the employees, will be within the bargain-
ing unit.
The majority have found that the OHIP jobs have a geographic
constraint. In the first place there is no support for this view
in the collective agreement or the.relevant statutes. In the second
place I would question where these geographical boundaries fall. If
the jobs had been transferred to a branch office in Mississauga, would
the majority conclude the positions had been abolished? What if the
transfer was to Brampton? Would Hamilton be far enough away to
breach the geographical wall?
It seems to me that the answer to these rhetorical questions
is no, for the simple reason that no geographical line exists. The
facts are straight forward. A management decision was made to per-
form the same work in the same way in a different location. The
site chosen happened to be Kingston but it could as easily have been
North York. Along with transferring the jobs the employer guaranteed
- 3 -
tha.t all emp~loyees who occupied the transferred'jobswould be
offered the opportunity to work in'the same jobs;>albeit in
I
Kingston rather than Toronto. 'For those employees who chose to . . I , ;, ?'I'...: ',/ c-;:;
relocate to Kingston, the on?y employment difference is the place .,; ..;> -, 7, ,. . ,, f~, ..:I'.';\!'. - '-,, ,.
'- where they were~to work: Both the employee and the job of such :' ^[: I%. ,:., , ,:, : I-'
employee would be transferred.
i,, 1':' '_ : .'i;,: ;,:,i.:
.With great respect, I simply fail
v:i:.dz..
understand
.' ~+.e,~~l- : :: :- ‘;r .1:‘ I,,(:
to how i't'can be&id 'that-~the job in Toronto was
. '. ~; y“+'(; .., "
transferred and was reborn asa new entity-in Kitig!ton..‘-
. ."'. :' ' ~:. ,. -: :, >,j :; .'_ : .
.The;real. difficulty with.this,case concerns the employees ,T, I
who for whatever reasons, choose not to.relocate. But in a sense,.
>, _. ';:?;r w
this appears to answer the question. :What in fact has transpired
is that the employees have: elected-not to transfer and, thus, have
abandoned'their.jobs or positions. ..The election is solely that of
,- '_
the employee and can only,&characterized as a personal abandon-
.'
ment of the job or'aSrejection of a transfer.
I.: /
r: '. i
'-In the result.1 would find that these jobs had no geographical
boundaries. in-fact or.‘in logic.
_, ~I . . .
I would.further find that what ocur- .
red was'a transfer of'a job From one location to another'coupled with
1 .',
an offer to each,indiv,idua:l:to,be transferred with his or her own
jobtfrom Toronto to' Kingston.
::
Those employees who rejected the
1 * ~"(
~transfer opportunity must be deemed to have abandoned the OHIP jobs
they occupied ,and their employment rights and opportunities would
have to be determin,ed by other provisions*of the collective agreement.
The second basis of my dissent concerns the application of the
term "lay-off" to these circumstances. .Whether one applies the general
arbitral concept of layoff or the more narrow-jnterpretation resulting
from the intwweavina of S24.16 of the collective aareement and S22(4\
-4- .
of the Public Service Act, I would find that these employees cannot
be said to have been laid off.
The term layoff, as used in collective agreements, is
generally understood to be the reduction of the work force by the
employer rather than the loss of a job due to~an employee's actions.
For example in Consumers Gldss Company Ltd. and United Glass Workers
of North America and its Local 200 an unreported decision of Profes-
sor Beatty the arbitrator states at page 4:
As Mr. Weatherill has succinctly put it "all
parsons who are laid off are off work, but
not all persons who are off~work have been
laid off". Re Northern Electric Co. Ltd.,
supra, p. 107.
Indeed, it seems to me the union was
forced to concede this point in argument
in the example of a person who is absent
from work on account of a disciplinary
suspension, or because of an illness or
injury which precludes,their being able
to perform any work.
Neither of those
persons would in common or industrial
relations~parlance be understood to on (sic)
a lay-off, notwithstanding that literally
they are temporarily "not actively engaged
in work". And surely this is so because
they are off work for reasons which have
nothing to do with the manning requirements
of the employer which is what distinguishes
lay-offs from these other temporary absences.
Surely it is because that fact is missing,
and no other, that no one understands that
these people could be said to be on a lay-
off. Their example confirms that there is
something more than just being off work when
an employee is on layyoff.
The decisions cited on page 10 of the majority award are to the
same effect.
In applying these principles to the facts in our case I
can only conclude that the loss of the job, in the sense that the
- \ -‘5 -
Isi I?,,. employee remained in Toibiito;.nas duelsol;;'ly'to'the employee's
action. The positioncontinued to.exist o:rput, another way, the ,, I, ,: ;: ;,:; .I' 3,. r !_, /
work force7,va~s n,ot.reduced. :. : ,, ~. , ,, ~'. ;! In prin~ipl.e,l,,~h,e~sJitua,tion is
;.‘ _ \. : ' 3: / '. ; :; r.:, 2 ..<". / 3 " ,~, .I .i c,; : ( ;
However, as the majority ha.ve co,rrectl,y.,noted,~ this ~..'! I& .,
collective agreement gives a particular definition to the word
,. a,,.,.- cI <"', .! ;-' .,;-. ;,,i; c:,, _ r y 5"
.I have already commented on the concept of..abolition of .~'.~‘... 8 I .
the positions. Without being repetitive I wish to emphasize
that what has occurred is a simple transfer of jobs or positions . .
from one office location to another coupled with an offer to each
employee to be transferred along with the positions. LJhat has . 1 .I .-
been abolished? The jobs are unchanged in that the same work is
to be performed in the same manner by the same employees, where
such employees choose. The only thing that is changed is the
location. I cannot agree that the OHIP jobs have been abolished
and then recreated in Kingston. To reach such a conclusion one
must ignore what is the proper characterization of this situation
namely; a transfer of positions rather than their abolition,
t&
c;
- 6 -
In the result I would find as follows:
1. A number of positions were transferred unchanged as to
the job content from one location to another within the
province-wide geographical area of the collective agreement.
2. Those employees who elected to relocate would be performing
the same job in another location. Such,persons could not be
said to have been laid off nor could their jobs be said to
have been abolished.
3. Those employees who elected not to,relocate had every
right to do so but as a consequence designated their own job
status. These employees cannot be said to be on lay-off in
a general sense since there was no.reduction ,in the work
force and they were not performing the job because of their
own action, nor laid off in the more restricted sense of the
agreement since the job they chose not to perform was not
"abolished". The job would merely be performed by another
person in Kingston.
Heather J. Laing
‘5
I
,
,;
Between:
Before:
IN'THE MATTER OF AN AkBITRATION
665/81
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
.OPSETJ (union Grievance)
-And -
Grievor
For the Grievor:
For the Employer:
llearing :
The Crown in Right of Ontario
(Ministry of Health)
Employer
R. L. Kennedy.. R. Russell
H. J. Laing
Vice-Chairman
Member Member
S.T. Goudoe, Counsel Cameron, iirewin & SCOtt
J.A.-Baker, Counsel
Hicks, Her ley , Hamilton, Stewart, storie
January 28, 1982
INTERIM AWARD
This grievance arises out of the planned relocation by
the Ministry of Health of Ontario Health Insurance Plan
(“OHIP”) head office employees ‘from Toronto to Kingston. The
Union grieves the Ministry’s proposed interpretation of the
application of the Job Security Termination Payment provisions
in Articles 24 and 52 of the collective agreement between the
parties and, seeks a declaration that the provisions of Artices
24 and 52 apply to OHIP employees who are unable or unwilling to
relocate to Kingston.
Two preliminary objections to the arbitrability of the
matter were made on behalf of the Employer. It was the joint
request of the parties that we hearthe arguments as to the
.arbitrability.of the grievance and render a decision prior to
hearing any evidence on the merits.
Counsel for the Employer .argued firstly, that the
board was deprived of jurisdiction because the grievance was
premature or in the alternative, because the grievance had not
b&n filed in timely fashion in accordance with Article 27.8.1
of the collective agreement. Article 27.8.1. of the collective
agr%ment reads as follows: -
.
.
-3-
"Where any difference between the Employer and the
Union arises from the interpretation, application, administration or alleged contravention of the Agreement, the Union shall be entitled to file a grievance at-the second stage of the grievance procedure provided it does so within thirty (30) days
following the occurrence or origination of the circumstances giving rise to the grievance.
In order to deal with these submissions, we find it necessary to
set forth briefly the factual background relating to the
relocation programi Counsel for the Employer and.the Union were
in agreement as to the following facts:
I
In June 1980, the Premier of Ontario announced that
head office OHIP facilities would be relocated to Kingston. The
Employees were advised that their continued employment would be
guaranteed if. they decided to move to Kingston and that the
Government would make every reasonable effort to find jobs in
Metropolitan Toronto for those unable or unwilling to
relocate. The employees concerned and the Union were-also made
aware of the Government's position (though exactly when is not
clear) that Articles 24 and 52 of the collective agreement would
not be applied to.those employees who were unable or unwilling
to relocate since their positions were not being abolished.
While some OHIP employees relocated to Kingston in the fall of
1981, most relocations have been scheduled for June 1982,
Septe&r 1982 and for the year 1903. The-Union filed its
grievance on November 12th, 1981.
I
i
- 4 -
In support 'of her submission that the grievance was
premature, counsel for the Employer argued that Article 27.8.1
operates only where a concrete difference of opinion arises
between the parties, not where there is an anficipatrd breach of
the agreement and that the board has no jurisdiction to
determine issues in the abstract. Since the first relocations
will not occur until June 1982, the issue of the applicability
.of Article 24 and 52 has not yet crystallized to the extent that
the board has jurisdiction to hear the grievance. Counsel
:
argued that,it is impossible at this time to determine which and
how many employees ~may be affected by the management's position
not to apply Articles 24 and 52. For example, the number of
employees required to relocate may drop over time as those
unwilling or unable to relocate continue to apply for and obtain
positions in Metropolitan Toronto. Since neither the Union nor
the Employer is aware of the precise magnitude of the problem,
the situation remains fluid and unarbitrable.
Counsel for the Employer,argued that the present case
is analagous to the decision in Re: Glenny (586/80). Glenny
involved a grievance for the rescission of a management
memorandum which requested managers to determine from their line
supervisor the identity of stewards in their section and their
as the communication contact regarding
-5-
union disputes. The memorandum also stated that union stewards
would not be permitted to leave their work place without the
permission of their supervisor and that stewards could not cross
the boundaries of their stewardship. Article 27.5 of the
collective agreement between the parties provided that "the
employee at his option may be accompanied and represented at
each stage of the grievance procedure." The Union argued (at
page 7) that.Article 27.5 was violated because the memorandum
indicated that the'Mini&try would likely interfere in the future
with representative selection at the formal stages of the
grievance procedure.
The Grievance Settlement Board held that the grievance
seemed somewhat premature and dismissed it because on the facts
Article 27.5 had not been contravened (at pages 8-9). The Board
held that:
I . ..no proof was offered 60 show any denial of representation by a representative of the employee's choice at Stages One and Two of the grievance procedure, nor of consent denied to stewards who
wished to cross the boundaries of their stewardship. The Union argues in anticikation of what might occur in light of what they see as Mr. Sheppard's [assistant director of personnel) interpretation of the grievance procedure."
In considering the decision in Glenny, we are not
persuaded that the facts arc' sufficiently similar to those -in -
- 6 -
the case before us. In Glenny, there was no cleat, unequivocal
statement of intention on the part of management to deny
representative selection at the formal stage of the grievance
procedure, so as to bring to a head or crystallize the dispute
between the parties as to the interpretation of Article 21.5.
The grievance arose out of a Union fear grounded on its
interpretation of a management memorandum.
In the case before us, counsel for the Employer takes
the position and the Union did not dispute that management made
clear from.the outset its intention not to apply Articles 24 and
52 to those employees who are unable or unwilling~to relocate
and who are unable-to find alternative employment within the
public service., We agree with counsel for the Union that there
is no uncertainty or lack of definition concerning the
Employer's intentions with respect to the application of the
collective agreement. Management's position is as clear as it
would be at the time of the relocations' in June 1982. While a
board of arbitration is without jurisdiction to deal with a
grievance which is not yet in existence, in our view a
difference has arisen between the parties arising from the
.inteKpKetation of the agreement within the meaning of Article
27.8.1.
Our view is supported by the decision in Re Public
Utilities Commission of the Borouqh of Scarborouqh (1974) I.---- -__-__-
.:
.:
,..
. . . . ,..
5 L.A.C. (2d) (Rayner). In that case, the union brought a policy
grievance requesting the rescission of policies and procedures
relating to attendance and~lateness control. The union alleged
that the provisions of the collective agreement which limited
the employer's right to discipline except for cause were
violated by the publication of the rules. Counsel for the
employer suggested that the grievance was premature Ontwo
grounds. Firstly, he argued that the grievance had been brought
before the rules were enacted. The board rejected this
submission since the evidence clearly established that the
company was determined.to'implement the KUleS at the time the
grievance was lodged. Secondly, and more importantly, counsel
for the employer suggested that the grievance was premature
because the union had.to wait for a specific incident involving
the application of the rules before a grievance could be
brought. The board rejected this submission on the grounds. that
the union had a right to bring a policy grievance arising from a
problem concerning the interpretation, application OK
administration of the agreement and the rules per se were
alleged to be contrary to the collective agreement. (at page
288).
We are of the view that where, as in the case before
us, the action to be taken by manaqem?nt is specifically set -.
-D-
out, and that statement of management ~intention raises a
difference between the parties as to the interpretation of the
collective agreement, the grievance is not premature.
Furthermore, we are persuaded that the parties both have-an
interest in resolving the dispute that~has arisen as a matter of
policy at the earliest possible date. It appears to US that
entitlement to termination or severance payments may be an
important factor in making an employee's decision whether or not
to relocate. The Employer has an interest in knowing whether '
there will be an additional financial cost of the relocation
program as well as in being able to forcast human resource
requirements at Kingston., In short, the planning cost to the
Employer and the human cost to OHIP employees of further delay
indicates the'importance of clarifying the issues for the
parties.
We note also that in the Glenny decision cited to us
by counsel for the Employer, the board clarified certain issues
for the parties regarding the interpretation and application of
Article 27 in the interest of soundlabour relations,
notwithstanding the board's stated reluctance to discuss the
article in detail in the abstract, since the grievance was
somewhat premature. In the result we'are not persuaded~ that the
boar-d is deprived-of jurisdiction by reason that the qr-ievance -
is premature.
Counsel for the Employer argued that if the grievance
was notpremature, then it had not been..filed in time in
accordance with article 27.8.1. Article 27.8.1 requires the
Union to file a policy grievance "within thirty days following
the'bccurrence or origination of the circumstances giving rise
to the grievance. Counsel for the .Employer characterized the
origination of the circumstances giving rise to ~the grievance as
the point in time at which the Union became aware'of the
Employer's interpretation of Article 24'and 52 of the collective
agreement and of its' intention not to apply the provisions
contained therein to OHIP 'employees who are unable to relocate.
Ms. Baker submitted that while it might be difficult ,to define.
the exact point'at which this occurred, the Union's knowledge
clearly predated the thirty day~period before the grievance was
filed.
Counsel for the Union on the other hand argued that
the grievance was filed in time since a dispute existed between
the parties at the time of the grievance with respect to the
proposed application of 'the collective agreement. Counsel for
the Union also submitted that a number of occurrences that took
place within the thirty day period could be regarded as "the
occurrence or origination of the circumstances giving rise to
the grievance" including a management communication sent Out in
October setting out the time-table of relocation. Furthermore,
-~
-'lO -
Mr. Goudge argued that section 19 of the Crown Employee I
t
Collective Bargaining Act, R.S.O. 1980 c.108 indicates
arbitration to the.Grievance Settlement Board should be
means of resolving any dispute between the parties aris i,
s
hat'
the
ng from
the interpretation or application of the agreement and argued
that a technical-lateness should not prevent the resolution of .
an issue with fundamental human and planning repercussions.
We are of'the view that the employer's assertion that
we are without'jurisdictton because the grievance was not filed
.in time is without meri't. While we agrees with MS. Baker's
characterization of the originating circumstances giving rise to
the grievance, we find that the grievance is of a continuing
nature. In the result, failure 'to,initiate it within the
stipulated thirty day period does not render it inarbitrable.
Continuing grievances have been defined as."grievances
which do not relate to a single act possessing substantial
finality such as a discharge'br promotion but relate instead to
a continuing course:of conduct..." iRe Parking Authority Of
Toronto (1974) 5 L.A.C.(Zd) 150, at p.l.52 (Adell)). Continuing
qrie-vances are to be contrasted with grievances "which pertain
to an incident, event or occurrence which has happened and then
ceases to ha$pen any further" (Re County of Paintearth No. 12,
(1973) 3 L.A.C.(2d) 42R, at p.429 (Newman;). In the case before
I
F
,.i
.? :
- 11 -
US, the subject matter of the grievance is management's
continuing statement of its intended application and
interpretation of Articles 24 and 52 of the Collective
Agreement. In our view, the grievance cannot be said to pertain
to a specific incident which has happened but "ceases to happen
any further". Rather, the grievance relates to a matter which
will arise from time to time under the agreement with respect to
employees who are unwilling or unable to relocate to Kingston
and therefore; the grievance pertains toga continuing course~of
conduct - management's intention not to.apply particles 24 and 52
of the agreement..
We find support for our.view in the decision in e
Northern Electric Company Limited (19721 1 L.A.C.(2dl 310
(Weatherill).. In Northern, the Union filed a policy grievance
which related to whether persons on layoff, leave of absence, or
maternity leave were "employees" entitled to have their welfare
premiums paid by the company under Article 30 of the collective
agreement between the parties. The matter was being argued
generally and the grievance did not relate to the entitlement of
any particular employee. Counsel for the company suggested
that the grievance was filed out of time, coming more than
eleven months after the collective agreement was signed. The
arbitrator held that the grievance was timely~on the grounds
that entitlement to the payments in question was a matter that
-
.
.- -
- 12 -
arose from time to time by virtue of the obligation imposed
under the agreement. We are persuaded that just as the question
of entitlement to welfare benefits in NoKtheKn was held to be a
matter recurring from time to~time, the question of the
application of termination and sfverance provisions will
continue to arise throughout the period of the relocation
program. In the result, we find that the grievance is of a
continuing nature so that failure on the part of the Union to
file the grievance within thirty days of the originating
circumstances does not 'relieve us of our jurisdiction. .'
Furthermore, we dare of the view that the Employer's
objection to the timeliness of the grievance does not itself
appear~to have been raised in timely fashion. There is
authority to establish that where the party objecting at the
hearing to the violation of procedural requirements has earlier
continued to process the grievance on its merits, without
protesting the violation, the doctrine of waiver prevents the
party from pressing the objection, and the grievance is not
dismissed on the basis of the violation. (See Regency Towers
Hotel Limited and Hotel Club Employees Union, Local 299 (1973) 4
L;A.C.(2d) 440 (Shiff) and authorities cited therein).
We a-re of the view on the basis of the authorities -
that waiver has been established. Counsel for the IJnion told
- 13 -
the Board at then hearing that Ms. Baker had informed him of the
preliminary objections that would be raised a short time before
the hearing. This however, appears to have been the first the
Employer had raised-any objection to~the way the grievance had
been processed since it was filed. The Employer's formal
response to the grievance fails to raise the objection. We find
therefore that the Employer's conduct from the middle of
November to just prior to the hearing constitutes waiver of'the
procedural irregularity.
We are supported in our view by the recent decision in
Be Falconbridge Nickel Mines (1981) 1 L.A.C.(3d) 158 (Picher) in
which the union alleged that the grievor had been discharged
without just cause. At the hearing the company raised for the
first time's preliminary objection relating to th(e timeliness of
the filing of the grievance. The company's formal
acknowledgment of 'the union's decision to proceed to arbitration
made no reference to the breach .of the time limits. The board
rejected the employer's submission holding. that the company was
estopped from objecting to the timeliness of the Grievance
because it failed to raise its objection in a timely fashion.
"By not objecting to the Union's failure to
strictly comply with the Section 7.05(a) time limits, when the Company first acknowledged receipt of the
Union's reference of the grievance to arbitration or at any time thereafter-up until the time of the
hrar-ing, the Company must be taken as having waiv-X_ the irregularity" (at p.164)
.,
- 14 -
In the case before us, as in Falconbridge, the -.-
Employer's response to the Union's reference of the grievance to
arbitration does not refer to the timeliness objection. The
fact that the Employer first registered its objection a few days
in advance of the hearing rather than at the hearing itself does
not in our view make a difference. We are supported in our view
by the decision in Re Regency Towers where the boardheld the -
Employer's conduct constituted waiver on facts similar to the
case before us.'
In the result it is our conclusion that the
preliminary objections to arbitrability raised by the Employer
are rejected. 'This Board will proceed to hear ,evidence and
arguments on the merits of ,the matter on February 24* 1982.
DATED at Toron
R:.Russell - Member
"I dissent" (see attached) - H. J, iaing - Member
I regret that I am obliged to dissent from the award
of my colleagues with respect to their disposition of the
issue of timeliness. -
In particular, I disagree that the facts of this case
Indicate a grievance of a continuing nature. The essence of
a continuing grievance is that the act complained of must be
one which recurs fAZpoma Contractors Ltd. (2980) 25 L.A.C. i2dl
292 LVinnegadJ. I concur with the majority when it agrees
with the employer's counsel that the originating circumstance
giving rise to this grievance is the employer's conanunication
of its intention not to apply Articles.24 and 52 to employees
who do not move to Kingston with their jobs. 'This is not
conduct which is renewed at regular intervals and is capable
of being considered as a series of separate actions. What
continues is merely the consequences of the employer's
intention (Parking Authoritg of Toronto (29741 25 L.A.C. kU
150 IAdelllI. Thus, in these circumstances, there is not a
continuing grievance.
I also disagree with the findingof my colleagues that
the employer has waived its right to object to the timeliness
of the grievance. The facts show no detrimental reliance on
the part of the union nor is there any evidence of prejudice
because the-union was unaware that the objection was to be made. -
- 2 -
Dissent (Cont.)
In conclusion, in my view the union's policy grievance
was not filed "within thirty days following the occurrence
or origination of the circumstances giving rise to the
grievance". I would uphold the employer's objectjon that
the grievance has not been filed in time in accordance with
Article 27.8.1. ~^.
_
...I
H. J. Laing w
'/et