GSB# 0626/01

UNION# 01B216

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Cherry)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Owen V. Gray

Vice-Chair

FOR THE UNION

Mark Barclay Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Fateh Salim Counsel Management Board Secretariat

HEARING

January 16, 2003.

DECISION

1This grievance alleges that the employer’s cancellation of a job competition in December 1999 was improper. The grievance was filed in writing on February 28, 2000. The employer’s second stage answer was given to the grievor by letter dated May 26, 2000. OPSEU did not refer this grievance to arbitration until August 2001. Several other similar grievances arising out of the same circumstances had in the meantime been heard by the GSB and allowed.

2The employer objects that this grievance is untimely in two respects. It says that the time for initiating the grievance process began to run when the grievor was advised of the cancellation of the competition in December 1999, and that the grievor did not do so in the manner and within the time prescribed by Article 22.2.1. The employer also says that the grievance was not referred to arbitration within the time prescribed by Article 22.4. The parties agreed that I should deal first with the objection to the timeliness of the referral to arbitration.

3I upheld that objection and dismissed this grievance in an oral decision at hearing. This confirms that decision and the reasons for it.

4The grievor works in the Regional Tax Office of the Ministry of Finance in London, Ontario. At all material times his permanent position was Corporations Tax Auditor at the TA4 level. On January 9, 1999, the Ministry posted 17 corporate tax auditor positions at the more senior FO5 level, of which 4 were to be in the London area, 7 in the North York office, one in Mississauga and 7 in Oshawa. The grievor applied. The Ministry delayed and subsequently cancelled the competition. By letter dated December 21, 1999, all applicants were advised of the cancellation. That letter stated that the Ministry anticipated posting Senior Corporation Tax Auditor positions at the TA5 level in the “near future.”

5On or about February 22, 2000, the Ministry posted a competition for Senior Tax Auditor positions: 9 positions in North York, 7 in London and Kitchener combined, 4 in Ottawa/Carlton and 2 bilingual positions. The grievor did not apply for the newly posted positions. On February 28, 2000 he filed this grievance in writing, alleging that the cancellation of the original competition was improper. Other applicants in the original competition from various Ministry offices filed similar grievances.

6By letter dated May 26, 2000, the Ministry’s stage 2 designee wrote to the grievor as follows:

I am writing in response to your grievance alleging that the employer has violated Article 6 of the collective agreement by cancelling [sic] the competition for the Senior Corporation Tax Auditor, competition number FIN: 825‑98(London) and FIN: 828‑98(Oshawa).

I have concluded that the decision to cancel the competition is a management right, and that there has been no violation of the collective agreement.

If you disagree with my decision, you may apply to the Grievance Settlement Board within fifteen days of receipt of this letter for a hearing of your grievance.

7The grievor then prepared a letter dated June 5, 2000 addressed to the Grievance Settlement Board, asking for a hearing of his grievance. He sent that letter to the Ministry’s head office in Oshawa, apparently in the expectation that they would forward it on to the GSB. By letter dated June 19, 2000, a Human Resources Consultant at the Ministry’s head office wrote to the grievor as follows:

I am in receipt of your letter dated June 5, 2000 concerning your grievance dated February 28, 2000.

Please be advised that in accordance with Article 22.4 of the OPSEU Collective Agreement, you must apply, through the union, to the Grievance Settlement Board for a hearing if you are not satisfied with the decision at Stage two of the grievance procedure.

I trust the above information will assist you in processing your grievances appropriately.

8The union referred certain of the grievances arising out of the cancellation of the original competition to the GSB for arbitration. The GSB set an initial hearing date of December 11, 2000. On November 6, 2000, in an attempt to confirm which grievances were proceeding to arbitration, Helen Ecker of the Ministry of Finance spoke with a representative of the union. The employer says, and the union agrees, that the union’s representative then confirmed that it had no record of Mr. Cherry’s grievance having been referred to arbitration. The recollection of that union representative is as follows:

On October 12, 2000, I received a call from Wayne Cherry asking about the progress of his grievance. I was unable to find a grievance in his name, and he thought it was part of a group grievance and he would call me back to provide the OPSEU number within the next week.

On November 6, 2000, in a telephone conversation with Lucy Siraco, counsel for the employer, concerning a group grievance of two individuals grieving the cancellation of a job competition, she suggested that she thought there were more grievances concerning the same cancellation and expressed the idea that perhaps we should hear them together.

On the same day in a telephone conversation with Helen Ecker of the Ministry of Finance she said that there had been at least two others who at the earlier levels had grieved the cancellation of the competition and one of them was named Wayne Cherry. At the time, I did not remember at all the call from Mr. Cherry the month before.

I made a thorough search to see whether I had a grievance from anyone named Wayne Cherry, and there was no grievance in the office from Wayne Cherry. Ms Ecker and I agreed that at that time the only grievances on the matter properly before the Grievance Settlement Board were the grievances of Chen and Guillermo.

Over the next several days, Lucy Siraco and I confirmed that there was actually another group of twelve grievors grieving the cancellation of the job competition and properly filed to the Board. We ultimately agreed that the grievances should be consolidated, and confirmed that there were these two groups of grievances properly before the GSB, and no others.

In due course the matter was set for arbitration with dates in November and December of 2000. On February 9, 2001, Wayne Cherry phoned again and provided some information by FAX concerning the grievance he was concerned about. At that time, from the information he sent, I was able to establish that he had, in fact, filed a grievance concerning the cancellation of a job competition for the same position, and involving the same facts, that were the subject of the two group grievances going forward, but that rather than filing to arbitration through the union, he had personally mailed a letter to the employer stating that he wanted to go on to arbitration.

I advised Mr. Cherry at that time that there was no point in attempting to get his grievance included in the hearing because time limits were long since passed and the union and employer had agreed on the grievances properly before the Board. I told him that I would try to argue the matter as broadly as possible and that his only hope was that if we received a favourable decision it might be broad enough to provide some benefit to him as well.

Mr. Cherry said that after the employer had returned his letter explaining that he head to file through the union, he gave the grievance to his union steward who forwarded it to OPSEU head office. I have been unable to find any evidence at all that the grievance was ever received at OPSEU.

In the summer of 2001, a decision on the two group grievances was released, and the decision was favourable to the union, but narrowly defined with respect to the cancellation of positions advertised for the North York Regional Office.

While I was on vacation that summer, Mr. Cherry again contacted OPSEU, and was apparently advised to file the grievance on to arbitration at that time. It is that filing which is the subject of the grievance now before the Board.

9A hearing on other grievances arising out of the cancellation of the original competition proceeded before Vice-Chair Abramsky on December 11, 2000 and subsequent dates. Before that hearing began, third party notices were sent to the successful candidates in the February 2000 competition. I am told that this was done prior to Ms. Ecker’s November 6, 2000 conversation with the union’s representative. One of the employees to whom a third party notice was sent was Don Ferguson, an employee in the Ministry’s London office. Mr. Ferguson contacted Ms. Ecker shortly before the first hearing date, asking whether any grievances from the London office had been referred to arbitration. Relying on her earlier conversation with the union’s representative, Ms. Ecker told him that there were no grievances relating to the London office.

10Vice-Chair Abramsky issued her decision on July 26, 2001 (Leung et al., Guillermo/Chen, GSB#0319/00, 0388/00). On August 16, 2001, OPSEU wrote to the employer advising that this grievance of Wayne Cherry dated February 28, 2001 was being referred to arbitration. It is common ground that OPSEU did not refer the grievance to the GSB prior to that. The Ministry promptly advised the union that it was objecting to the referral on the basis that the grievance had not been referred to arbitration within the mandatory time limits set out in Article 22.4 of the Collective Agreement.

11I would apparently be the evidence of Mr. Cherry that he wrote his letter of June 5, 2000 in reliance on the closing paragraph of the employer’s letter of May 26, 2000, that he sent that letter to the Ministry’s office on the advice of his union steward, and that on receipt of the employer’s response of June 19, 2000 he spoke again to his union steward who, he believed, then did whatever was necessary to cause his grievance to be referred to arbitration at the GSB. It would further be his evidence that at some subsequent time he received a telephone message from someone at the union advising that he was part of “the group grievance.” At the hearing of this matter I explained to the grievor that it would be unnecessary to hear him give that evidence formally, because even if I accepted all of it as true I would have to uphold the employer’s objection, for reasons explained then and reiterated here.

12The pertinent provisions of the collective agreement are these:

ARTICLE 22 ‑ GRIEVANCE PROCEDURE

STAGE ONE

22.2.1 It is the mutual desire of the parties that complaints of employees be adjusted as quickly as possible and it is understood that if an employee has a complaint, the employee shall meet, where practical, and discuss it with the employee's immediate supervisor within thirty (30) days after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee in order to give the immediate supervisor an opportunity of adjusting the complaint.

22.2.2 If any complaint or difference is not satisfactorily settled by the supervisor within seven (7) days of the discussion and/or meeting, it may be processed within an additional ten (10) days in the following manner:

STAGE TWO

22.3.1 If the complaint or difference is not resolved under Stage One, the employee may file a grievance, in writing, through the Union, with the senior human resources representative in the ministry or his or her designee.

22.3.2 The senior human resources representative or his or her designee shall hold a meeting with the employee within fifteen (15) days of the receipt of the grievance and shall give the grievor his or her decision in writing within seven (7) days of the meeting with a copy to the Union steward.

22.4 If the grievor is not satisfied with the decision of the senior human resources representative or his or her designee or if he or she does not receive the decision within the specified time, the grievor may apply, through the Union, to the Grievance Settlement Board (GSB) for a hearing of the grievance within fifteen (15) days of the date he or she received the decision or within fifteen (15) days of the specified time limit for receiving the decision.

GENERAL

22.14.1Where 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.

22.14.6 The GSB shall have no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreements.

13A grievance that has been withdrawn is inarbitrable. The union and employer have agreed in Article 22.14.1 of the collective agreement that a grievance that has not been processed by the employee or the union within the time prescribed is deemed to have been withdrawn. The union does not challenge the employer’s position that it gave a stage two decision as Article 22.2.2 requires. Thereafter, this grievance was not referred to arbitration by the union for nearly 15 months. Whether that is because the grievor did not ask that it do so or because the union did not follow through when asked, the result on this issue and in this forum is the same: according to the collective agreement, the grievance is inarbitrable.

14At the hearing it troubled the grievor that the 15 day period following his receipt of the stage two answer expired while he was attempting to refer the grievance to the GSB himself, as that answer told him he had to do. Assuming, without deciding, that the employer induced the delay that occurred between the grievor’s receipt of its second stage answer and his receipt of its letter of June 19, 2000 correctly telling him he had to act through the union, and assuming likewise that the employer would be precluded from relying on any delay that it had induced, the fact remains that the subsequent delay of nearly 14 months cannot be attributed to what the employer had said about referral to arbitration in its second stage answer. At very least, the clock started when the grievor received the letter of June 19, 2000, following which, according to him, he asked the union refer his grievance to the GSB.

15It also troubled the grievor that, whatever the state of the union’s records, the employer knew that he had a grievance. The issue for the employer, however, was not whether he had filed a grievance. After the employer had answered the grievance at stage two, the pertinent issue was whether the union had processed or was processing the grievance to arbitration. The union told the employer that it had not and was not. There is no suggestion that the union’s position in that regard was induced by any misrepresentation on the employer’s part.

16The collective agreement gives the GSB no power to extend the collective agreement’s time limit for referring this grievance to arbitration. The union does not suggest that the Crown Employees Collective Bargaining Act, or any of the provisions of the Labour Relations Act that are incorporated therein by reference, gives the GSB the power to extend that time limit. Indeed, the union was unable to identify any basis on which I could conclude, despite the delay in referring it to arbitration, that this grievance is arbitrable.

17For the foregoing reasons, I upheld the employer’s objection to the timeliness of the referral of this grievance to arbitration and dismissed the grievance orally at hearing.