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Home My WebLink About1985-0499.Nieuwold et al.87-06-19SETTLEMENT BETWEEN: TE‘EPmNE~ 416/599- 068.9 File Nos. 0499185, 1465185 1466185, 1466185 0102/86, 0103/86 IN THE MATTER OF AN ARBITRATION UNDER TRE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT . BEFORE TRE GRIEVANCE SETSLEMENT OPSEU (A. Nieuwold, L. Sikkens, D. Chicoski, H. Schram, B. Boyt., E.' Atkins, B. Blain) -and- Grievers . TRE CROWN IN RIGHT OF ONTARIO Employer (Ministry of Transportation and Communications) BEFORE: P. .I. Brunner Vice-Chairman T. J. Kearney Member E. Orsini Member FOR THE GRIEVOR: A. Ryder, Q.C.~ Counsel Gowling and Henderson FOR THE EMPLOYER: K. B. Cribbie Senior Staff Relations Officer Ministry of Transportation and Communications HEARING: March 30, 1987. -2 - DECISION Seven employees, all of whom were classified as Maintenance . - _ Mechanics and employed by the Crown in Right of Ontario (Ministry of Transportation and Communications) (hereinafter referred to as the Employer) filed grievances on April 26, May 22, December 5, 1985 and E:arch 4, 1986, in which they submit that the Employer violated the piovisions of Articles 17 (Meal Allowance), 22 (Mileage Rates) and 23 (Time Credits While Travelling.) of the collective agreement with the Ontario Public Service] Employees Union (hereinafter referred to as the Union) dated December 17, 1982 and an agreement in writing between the same parties dated July 19,,1984. While there is some question as to when the grievor's knew 0. or ought to have known of the alleged violation of the collective agreement and the agreement of July 19, 1984,. it is common ground between counsel that their complaints, which are said to arise from the interpretation, application, administration 'or alleged contravention of the collective agreement, were first discussed with their respective supervisors more' than twenty days after first becoming aware of the "complaint" as prescribed by Article 27.2.1 of the collective agreement and that the written grievances resulting from the failure to satisfactorily resolve these complaints were filed after the expiration of the seventeen day limitation period in Article 27.2;2 of the collective agreement. - 3 - The question that arises on these grievances is whether the time limits- in Sections 27.2.1 and 27.2.2 are mandatory or imperative, non-compliance with which renders the grievances inarbitrable or whether they are simply directory, thus permit- ting the grievances to be filed within a reasonable period of time of the expiration of the relevant dates in the two sections of the agreement. Counsel for the Employer takes the position that a long line J of decisions of the Grievance Settlement Board has established that all time limits under Article 27 are mandatory absent an agreement in writing of the parties for an extension of time (which there.was not) a;d that a complaint made after the twenty . : day period prescribed by Section 27.2.1 and a grievance filed subsequent. to the seventeen days stipulated in Section 27.2.2 cannot be submitted to arbitration unless the matter comes within subsection 18(2) of the Crown Employees' Collective. Bargaining Act, R.S.Q. - 1980, chapter 108, which it is common ground has no application to these. grievances. He therefore submits that the Crown Employees' Grievance Settlement Board is without jurisdic- tion to entertain the grievances. Counsel for the Union on the other hand contends that while the time limits set out in Article 27 following the filing of a - 4 - written grievance are mandatory, those stipulated by Sections 27.2.1. and 27.2.2 are not. He says that the collective agreement recognizes a-fundamental distinction between a "complaint" and a "grievance" and it is only a "grievance" that is deemed to have been withdrawn under Section 27.11 where it has not been processed within the stipulated time limits. He therefore contends that the time limits for "complaints" are* not mandatory but directory only and accordingly not beyond the jurisdiction of this Board. The parties were in agreement that this Board should decide the preliminary issue raised before considering the merits and indeed no evidence was led at the hearing on March 30, 1987, and the jurisdictional issue was argued on t%e basis of an Agreed ,. Statement of Facts which was outlined orally by Counsel. It was also common ground that apart from the limitation periods, this Board had jurisdiction to hear and determine these grievances even though they raise questions as to violations of predecessor collective agreements and make claims for compen- sation in relation to the matters mentioned reaching back as far as 1978. Reference was made to the decision of the Divisional Court of the' High Court of Justice in Re Ontario Public Service Employees Union and the Queen in Right of Ontario et al, (1985) 20 D.L.R. (4th) 282. - 5 - It is not very clear when each of the grievors first became aware that there may have- been a violation of the collective agreements. -‘It would appear that- some of them knew about it shortly after the agreement between the Ministry of Transport- ation and Communications and the Union dated July, 19, 1984, and others not until sometime in November or December of that,year. In any event, the complaints were first. raised with their supervisors some months thereafter and certainly not within the twenty day limitation period. We were told that the decisions of 2 the supervisors. rejecting the complaints were made on February 26, 1985, April 1, 1985 and April 12, 1985. The first .two grievances were not filed until April 26, 1985 (these relate to the decision of 'the supervisor dated April 1, 1985) and the. others ,follotied on May 22, December 5, 1985 and March 4,: 1986, all well beyond the time limits set out in Section 27.2.2 of the collective agreement;. It was also stipulated by counsel that this Board is precluded by Section 27.14 of the collective agreement from enlarging the time limits in Article 27 .and as there is no statutory provision in the Crown Employees Collective Bargaining Act such as there is in subsection 44(6) of the Labour Relations - Act, - R.S.O. 1980, chapter 228, we clearly have no jurisdiction to do so. - 6 - Several decisions of the Grievance Settlement Board have determined that the time limits in Article 27 are ~mandatory. Reference should be made in this respect to OPSEU and Ministry of Transportation and Communication (Grievance of Keeling) #45/75 (Application for Judicial Review dismissed (1980) 30 O.R. (2d) 662 (Div. Ct.)), OPSEU and Ministry of Health,~ #671/81, OPSEU and Ministry of Education (Grievance of Parr) #317i/82, OPSEU and Ministry of Transportation and Communication (Grievance of 'Persaud) #141/83 and OPSEU and Ministry of Revenue (Grievance of Beginbottom). We are all of the. opinion that the grievances were filed -,after the expiration of the time limitset out in Section 27.2.2 which dn our.view is mandatory and not merely directory. Section . '27.11 provides that where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed, it shall be deemed to have been ~withdrawn. We interpret the word "processed" in this section as having been derived from the word "process" which according to the Compact Edition of "The Oxford English Dictionary", Volume 2, page 2312, means "to institute a process or action against, to proceed against by law, to sue or prosecute". In our view, the processing of a grievance includes the initiating or starting step, namely the filing of the written grievance. Therefore a - 7 - written grievance which.is filed beyond the limitation period set by Section- 27.2.2 "is not processed within the time limit allowed or has not b&en processed by the employee or the Union within the time prescribed" within the meaning of Section 27.11 and is therefore deemed to have been withdrawn. Support for the mandatory nature of the time limit in this section is to be derived from Section 27.13 which says that the time limits contained in the article may be extended by.aqreement of the parties in writing. We also find further support for our conclusion, although we do not rely on this, in Section 27.10.3.1 of the successor collective agreement dated October 30', 1986 (this section admittedly has no application to the subject .grievances as it was executed well after they were filed), which states that the time limits contained in Section 27.2..l do. not apply to complaints relating to sexual harrassment provided that they are made within a reasonable time. of the conduct complained of having regard to all of the circumstances. This provision in our view would not have been necessary had the parties not explicitly recognised that then time limits in this section and per force therefore Section 27.2.2 were mandatory. As to the mandatory nature of time limits we make reference generally to Brown and Beatty, "Canadian Labour Arbitration" (2d ed.), paragraph 2:3128 at pages 96 to 98 and the decisions of the Supreme Court of Canada in Union Carbide Canada Ltd. v. Weiler, - 8 - [1969] S.C.R. 85 and General Truck Drivers Union, Local 938 et al v. Hoary Transport Ltd. [19691 'S.C.R. 635 and that of the _ _ Divisional Court of the High Court of Justice in Re Dominion Consolidated Truck Lines Ltd. and Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local Union 141, (1975) 9 O.R. (2d1 195. Accordingly, and as there is no evidence of either a waiver of or an estoppel with respect to the time limit in Section 27.2.2 of the collective agreement, these grievances having been filed after the expiration of the stipulated limitation period are not arbitrable and this Board has no jurisdiction to entertain them;. : It is unnecessary on the facts of this case to decide whether the time limit in Section 27.2.,1 is mandatory or merely directory and we leave to another day the adjudication of this issue. The grievances are therefore~dismissed for want of jurisdic- tion. DATED at Toronto this 19th day ofJune 1987. T. J. KEARNEY, MEMBER + E. ORSINI, MEMBER