Postal service's objection to grievance dismissed due to timelieness
A POSTAL WORKER was fired after he failed to deliver on his employer’s directions. Despite the fact his union was late to dispute the termination, a judge has decided time was not a factor and the grievance can proceed.
Nouman Mian was fired from Canada Post for not returning to complete his shift after he was instructed to do so by his supervisors.
To further complicate the matter, his union, the Canadian Union of Postal Workers (CUPW), filed its grievance after the deadline laid out in the collective agreement.
Canada Post initially considered the grievance on its merits and then sought to have the matter dismissed at a later stage of the grievance process because it was not timely.
But the union argued the employer had waived its procedural rights under the collective agreement. As such, Canada Post could not dismiss the grievance on the grounds of timeliness because it had dealt with the grievance through multiple steps of the grievance process before raising an objection to the grievance based on timeliness.
Essentially, rejecting the claim on the basis of timeliness was a moot point, as Canada Post had previously acknowledged Mian’s objection within the appropriate time frame.
As the union saw it, Canada Post had recognized CUPW’s grievance before any attempt to throw it out.
But the Crown corporation maintained that none of its representatives had clearly expressed, in either word or deed, an understanding that it was waiving its collective agreement rights. Under that agreement, the company had a right to object to a grievance that was filed outside of the mandatory time limits set out in the contract.
New on the job
The case is far from black and white. Canada Post said its representative who had been acting for the corporation at the first level grievance hearing was new to the job. Therefore, he was not familiar with the file and was unlikely to have been in a position to form an intent to waive the time limits set out in the collective agreement.
Moreover, there was confusion about the causes for the late filing of the grievance.
Initially, the cause of the delay was said to be the fragile state of Mian’s mental condition.
However, only later did it become apparent the grievor had indeed filed his claim on time and that it was the union that had dropped the ball and failed to file the grievance within the time limits set out in the collective agreement.
CUPW was putting words in Canada Post’s mouth, the company argued. In circumstances where the union was not sure about the cause of the delay, it was not fair or reasonable to interpret that as a forefeiture of the company’s right to object based on timeliness, the crown corporation argued.
However, arbitrator Pamela Picher disagreed.
Picher accepted the fact that Canada Post’s newbie representative at the first stage of the grievance process did not give an express or explicit waiver of the time limits.
However, the employer representative did make a determination at that stage that — in his opinion — the termination was warranted.
Therefore, he had an opportunity to review the file and raise issues of timeliness at that point.
But he failed to do so, and the grievance procedure carried on as usual.
"Accordingly, at the corporation’s reply stage, which was the next time following the first level grievance hearing that the corporation formally addressed (Mian’s) grievance, it again dealt with the grievance on its merits in the face of the clear procedural deficiency that the grievance had not been filed in accordance with the mandatory time limits," Picher explained in her decision. "Instead of raising a concern about the late filing of the grievance at the reply stage, notwithstanding its full knowledge of the deficiency, actual or appropriately deemed, the corporation moved the grievance along on its merits."
Too little too late?
Following the reply stage, consultations between the parties took place with the intention to explore different avenues of settling the grievance. Again, the issue of timeliness did not arise during these discussions, the arbitrator said.
It was about one week after these consultations and about one week before the grievance was to go to arbitration that the employer’s labour relations officer looked at the file and discovered the grievance was filed outside the time limit provisions defined in the collective agreement.
Canada Post’s objections to the grievance were too late, the arbitrator said.
"By not objecting to a failure to comply with mandatory time-limits until just before the grievance came on for hearing, the corporation — which could and should have raised the defect earlier — must be held to have waived the non-compliance, such that its objection to arbitration based on timeliness cannot now be sustained," Picher said.
Reference: The Canada Post Corporation and The Canadian Union of Postal Workers. Pamela Cooper Picher— Sole Arbitrator. Madeleine Loewenberg for the Employer. Adrienne Telford for the Union. April 30, 2013. 46pp.