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HomeMy WebLinkAbout1984-0012.Freedman.89-01-23\ .-;j ‘+ I ONTAWO EwLOv~SoELACOlJnONNE : cRowNEMPLovEEs OELYlNTARlO GRIEVANCE COMMISSION DE SElTLEMENT RkGLEMENT BOARD DES GRIEFS /.~.. I ~ j’ /’ -’ 1’. ; .. ? !‘I. .IN THE MATTER OF AN ARBITRATION '. under !012/84 . THE CROWN EMPLOYEES.C~LLECTIVE BARGAINING ACT ,' : Between: . ', ~. ,' .~' Before: _, I ‘~ For the Grievor: 'For the Employer: .' Hearing: . . I ~.’ I before ', > ,', THE GRIEVANCE SETTLEMENT BOARD ;. .' ,f '. .* The Crown in Right of Ontario .,: (Ministry of the Attorney General) 'i i,c:... >' .' :' -. Employer J.W. Samuels .' F. Taylor E. Orsini M. Ruby Counsel Gowling & Henderson Barristers and Solicitors L. McIntosh Counsel Crown Law Office - Civil' Ministry of the Attorney General Jan'uary 12, 1989 .. ,, .,' ? a. DECISION 2 From May 1982 until October 1983, the grievor was employed as a Sheriffs Officer in the Judicial District of York, pursuant to a series of limited term contracts. When his contract was not renewed in October 1983, he grieved that the “termination” of his contract was “unwarranted, unfair and unreasonable”. The grievance was filed on November 4, 1983, and Mr. Freedman finally had his day before this Board on January 12, 1989. At the outset of our hearing, the Ministry raised two preliminary objections-firstly, that - the grievance had been withdrawn; and, secondly, that there had been undue delay in prosecuting this case. .*, In our view, the grievance was withdrawn by the Union in April 1988, though the grievor had not instructed the Union to do so, and this withdrawal binds the griever. We will explain this finding by looking at the long and tortured history of the case after the grievance was filed. The Grievance Settlement Board first scheduled a hearing in this matter for April 2, 1984. However, shortly before the hearing date, Mr. N. Luczay, the grievor’s Union Staff Representative, requested an adjournment from the Ministry counsel, Ms. L. McIntosh, suggesting to Ms. McIntosh that it was likely that the matter would be withdrawn. Ms. McIntosh confirmed her consent to an adjournment sine die in a letter to Mr. Luczay dated April 4,1984. There were settlement discussions during May and June 1984, but they broke down in early July 1984. Mr. Luczay wrote to Ms. McIntosh to confirm the breakdown of the settlement discussions, and he said that he would let her know later whether the matter would proceed or be withdrawn. Mr. Luczay did not testify at our hearing. The grievor testified that, throughout the piece, Mr. Luczay was encouraging him to withdraw the grievance because the grievor had been a limited-term, unclassified employee, and the jurisprudence of the Grievance Settlement Board at the 3 time was clear that such an employee was not considered to have .been ’ “dismissed” when his contract was .not renewed. ‘Non-renewal of the contract simply brought’ the employment relationship to an end, and the employee had no right to grieve ‘the non-renewal;’ In our vie+, Mr. ‘. Luczay had good reason to give this advice’ to the grievor. Nonetheless, Mr. Luczay did tell the griever that he had his right to a hearing’ if her wished to proceed. .The g,rievor testified that, unfailingly, he has wanted to proceed from the outset, and he never intimated’ otherwise to Mr. Luczay ” 1 or anyone else at the Union. The matter lay dormant for over a year. On August 27, 1985, the then Registrar of the Grievance Settlement Board, Ms. T. Inniss, wrote to .‘- Mr. Luczay to ask him what was the status of the case. There is ‘no record of any respome. The Board set the ‘matter down for hearing on September 2, 1986. After receiving the .Notice of .Hearing, on, July 22, 1986, Ms. McIntosh wrote io Mr. Luczay to ask whether the Board had~ scheduled the hearing simply in order to complete the case, or whether the Union had~ decided to pursue the matter and had requested the Board to~scliedule the hearing. She explained that it’had been her understanding that the original - hearing was adjourned sine die pending withdrawal of the grievance. On August 14, 1986, Mr. Luczay telephoned to Ms. McIntosh to request an adjournment, pending the disposition of an application for judicial review ‘of another ,decision of the.Board in the Balderson matter, which raised the Charter $Rights and its application to this type of case. On the same day, Ms. McIntosh wrote to Mr. Luczay confinning her consent to the adjournment, subject to several conditions whichcare~ not relevant to us now. Mr. Luczay ~wrote back on August 21, 1986, confirming the agreed adjournment. Once again, the matter went to ground. Exactly a year later, on AugusX21, 1987, Ms. McIntosh tirote to Mr. c I. 4 Luczay. The Bolderson matter had been decided. The employer’s application had been allowed; the Board’s decision had been quashed; the Charter was not going to help the grievor. She asked Mr. Luczay if this grievance was now going to be withdrawn. On September 15, 1987, Mr. Luczay replied by letter: In reply to your letter of AUgU6t 21, 1987, we are. in the process of Contacting the grievor in an attempt to have hi6 grievance withdrawn. However, based on our previous contact6 it is most likely that he will Wish to proceed. In any event this grievance may now be processed and we do .4 not stand in the way of it being scheduled for 6 hearing. Ms. McIntosh responded on December 23, asking again whether the A grievance will be withdrawn or whether it will proceed. On February 25, 1988, Ms. McIntosh wrote to the Grievance Settlement Board asking the status of this matter. Having received no answer within a month, she repeated the inquiry on March 28. On March 29, the Board replied that it was asking the Union for a current status report. Now comes the critical piece of correspondence. On April 20.1988, Iv&I M. Pratt, Co-ordinator of the Union’s Grievance Department, wrote to the Board. His letter was brief. “Please be advised that a hearing in this matter is no longer required, your file may be closed.” This was confiied a day later by a status report from the Union to the Board, over the hand of Mr. R. Ellerton, a Grievance. Officer, in which the Union reviewed a number of pending files. This case was under the rubric “Please be advised that hearings in the following matters are no longer required and that your files may be closed”. In our view, the matter had been put to rest. The Union had made it absolutely clear that this case was closed. In late-June or early-July 1988, Mr. Luczay telephoned the new Registrar of the Board, Ms. I. Shirlow, and told her that the case had been :’ I” .~ r It is clear that grievances may. arise out of two.. sources-pursuant to ,. .’ -. I- : the collective agreement and directly under the Act. In Keeling;.GSB 45/78 (Pritchard), it was held that time limits in the collective agreement are not applicable to a grievance under section 18 of the Act. However, this Board has decided that, though the employee may launch a grievance 5 withdrawn “inadvertently”, that it should remain active,; but that he expected to resolve it. On July 4, hewrote to Ms. McIntosh to tell her that the’matter.had~ been “hdverte& withdrawn” (emphasis in his letter). In our view, this telephone call and letter came too late: ‘Ihe matter had been well and truly closed in April when the Union spoke to the Board through its duly authorized representatives. Furthermore, the Union’s word binds the griever, though the griever has a right to grieve ,unjust dismissal independent of the collective agreement, pursuant to section 18(2)(c) of the Crown Employees Collective Bargaining Act. ..^ I~.. .‘. independent of the Union and the collective agreement pursuant to section 18 of the Act, it is the Union. which .has carriage of the matter to arbitration, and the Union can withdraws or settle the matter. This position was fist explained in. Francis, GSb 1528186 (Brandt), and was reaffiied iq,Blake, 1276187 etc: (Shime); we endorse the reason&in Francis. which goes as follows (extract as quoted in Blake, at pages 4-7): i. "However the matter does not end at that. This case is different from peeling in that here there has been a settlement of the grievance between the Union and Employer. Tn reelinq and in the other cases retiiewed in &aahsoudi, the ,.Union was pressing the grievance on behalf of the grievor before the Board. This is the first occasion, to our knowledge, where the Board h,as had to consider the extent of a griever's statutory ,right to grieve where his own Union has, during the course'of the grievance procedure settled or withdrawn the grievance. The resolution of this question requires an analysis of the language of Section lS(2) .wherein~'it isprovided that the "matter may be processed An accordance with the wroc.&&.?X on awwuable umW Section lgc I. . I: I. 6 The submission of counsel for GO Transit is as fOllOWS. Section 19 of the A& provides that a matter may be. referred to the Board *'ID the event the wartles are unable fo effqzt a settleReM of aces between th -.. II 1. The "parties" to which reference is made are those referred to in S.l(l)(k), viz, the employee organization that is the bargaining agent and the employer. It is submitted, firstly, that there has been a settlement of tine matter by the parties and that consequently, the condition which must be satisfied before a matter can be referred to the Board, that is, that the "parties" have been &I&& to effect a settlement, is not satisfied. . . . . . . We agree with the submission that, by reason of the settlement of this matter between the Union and the Employer, the matter cannot be brought independently to the Board by the grievor. We do not-regard the reasoning in &elinq as dispositive of this point. Nor is this concluEion inconsistent with the statutory policy reflected in Section 18(2) by which employees are given a statutory right to grieve independently of the Union. At first glance it may appear that this StatUtOq right is significantly compromised if. it can be barred by a prior settlement of the grievance by the Union. However, it is important not to lose sight of the fact that the A,& as a whole is an && designed to regulate uctivq bargaining in the public sector. Primarily the employment interests of public sector employees are intended to be protected through collective bargaining. We do not regard the collective interests to be protected only at the negotiation stage of collective bargaining. They are also protected at the stage of contract administration. This view is well established in the private sector where Iabour Relations Boards have frequently stated, that a union enjoys a discretion to determine whether or not, in the interests of the collectivity an individual grievance should be settled or withdrawn. A useful account of the relationship between contract negotiation and contract administration . may be found in wer Cu. v IWA (1975) 2 Can LR8R 196 (B.C.) In our opinion similar considerations prevail under the Down )JRplovees Coil-ctive Bar&,n.iJla Act, Section 30 of the & puts upon the employee organization a duty not to "act in a manner that is arbitrary, discriminatory or in bad faith in the representation df~ any of the employees vhether members of the.employee organization or not". That language directly parallels that found in Section 68 of the 7 &bour 'Relations . It is.through Section 30 of the u that the interests of individual employees are protected in situations like .the one before us where the union has settled a grievance and thereby prevented the Grievance unsettlement Board from:taking jurisdiction under Section 19 of the & Section H(2)' and 'Section 30 can thus be ,re.ad as establishing a code of individual employee rights within a collective bargaining regime;.' 'Section D(2) has been held by this Board in cases -like Reelinq to prevent.the..parties to collective bargaining from negotiating provisions which would have the effect of preventing employees from processing certain kinds of grievances through the grievance procedure. Itdoes not, however, ~contemplate an automatic right to carry a grievance to the Grievance Settlement Board. The concluding clause of Section lS(2) . provides that where a grievance is not resolved ,in the qrievance procedure it may be processed to the Grievance Settlement-Board ,@a&ord&?ce with'.the vrocedure for fina& e9. :. Under Section d te * n-at "'0 19 the Board has iurisdiction where the *80arties1'. that is .%e employer and <he'unipn,,have not been‘able~ to-effect a settlement of the matter. Section 30 has the effect of protecting individual employee, interests, where the "settlement" which has the eff.ect of 'depriving the Grievance Settlement Board, of jurisdiction, has been improperly secured. In that event the "settlement8* would not, in our opinion, be a settlement of the kind which deprived us of jurisdiction. .Y If sections 18(2) and 19 were read as giving an employee a right to process a grievance to the Grievance Settlement Board independently of the Union and in the face of'a prior settlement of that grievance wherein it was withdrawn, Section 30 of the Act would be deprived of application in the very kind of circumstance when it is intended to apply, viz, contract administration. An employee would have no .need to seek relief under ~Section 30 if he could,. in all cases, take' his grievance. directly to the ,Grievance Settlement Board.; -.-'. .~ '-' - - _., -_ . .___ - -~- 1. i Nor do we.have any jurisdiction to determine whether or not Section 30 has been breached by the Union in this case. That is a matter for the Public Service Labour Relations : I. ( r ; Tribunal. Section 32(4)(c) gives the Tribunal the authority to inquire into a complaint that an employee organization has acted contrary to Section 30 and where it is satisfied that there has been a violation, it "shall determine what, if anything, the employee organization, employer, person or employee shall do or refrain from doing". It would appear to us that in view of this language, it vould be possible for the Tribunal, should it find a violation of Article 30, to direct as part of its relief that the "settlement" be vacated in which case the vay would be cleared for the grievor to return to this Board for a hearing of his grievance on the merits. Consequently, it is our conclusion that so long as the current "settlement" is in effect, we do not have jurisdiction to hear the grievance. It is therefore, our order that tbe matter be adjourned sine die. In the event that the grievor were to successfully pursue his claim. before the Tribunaland obtain relief of a kind which would permit us to take jurisdiction the matter may be. rescheduled for hearing on its merits." I. I: I.. In like fashion, we find that the Union withdrew this grievance. However, if the grievor were to pursue a complaint before the Public Service Labour Relations Tribunal, and if the Tribunal decided that the withdrawal should be “vacated”, then this Board could reconvene to hear further evidence and argument in this matter. Finally, we must say a word about the Ministry’s argument that there has been an undue delay and for this reason the matter ought to be 1 i .,y I in f 9 dismissed. Delay may impair a grievor’s right to a hearing if the delay has prejudiced the employer in some way-see Re CNICP Telecommunications ! and Canadian Association of Communications and Allied. Workers (1981), I 3 LAC (3d) 54 (Roberts), at pages 58-60. The’evidence at our hearing did not demonstrate that, necessarily, ‘there would be any prejudice to the (‘- Ministry arising out of the delay. All the documents are still available, and I so are ~the persons involved in the grievor’s hiring, though one member of *> I’ management has since had his. own difference with the Ministry and may 1 ‘_ not be the most accommodating of witnesses. In our view, the delay alone I should not preclude this Board from holding a hearing into the merits of : .. ..~ 7: , r . . . 10 this case. If there is a hearing, and if it becomes apparent that the delay has in fact caused some prejudice, then this Board can take this into account in coming to its decision on the merits. Done at London, Ontario, this 23rd day of J~IIU~~Y , 1989. ~/&.+&gf? . F. Taylor, Membe -. UP-- E. Ors’ ’ Member