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HomeMy WebLinkAbout2011-1014.McClelland.13-06-07 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2011-1014, 2011-1015 UNION#2011-0517-0022, 2011-0517-0023 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (McClelland) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Felicity D. Briggs Vice-Chair FOR THE UNION Sheila Riddell Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Jennifer Richards Ministry of Government Services Legal Services Branch Counsel HEARING April 29, 2013. - 2 - Decision [1] The grievor, Barbara McClelland, was a Correctional Officer at the Toronto West Detention Centre. She filed a number of grievances some of which allege discipline without just cause. She has received suspensions of various lengths and her employment was ultimately terminated. All of her outstanding grievances have been consolidated before this Board for determination. The remaining grievances before this Board allege harassment and other violations of the Collective Agreement. [2] The Employer notified the Union that on our first day of hearing it would ask the Board to dismiss two of the outstanding grievances because they were not filed in accordance with the mandatory time limits set out in the Collective Agreement. This decision deals only with this preliminary matter. [3] The two grievances at issue in this motion deal with unjust discipline: a one-day suspension and a three-day suspension. [4] The parties filed an agreed statement of facts so as to obviate the need for evidence. Those statements were as follows: McClelland – Agreed Statement of Facts One day Suspension a) The Grievor was employed as a Correctional Officer at Toronto West Detention Centre. Her date of hire with the Ministry was June 6, 1988. b) The Grievor was given a one-day suspension (1 x 8 hours) on March 8, 2011 for failing to follow the direction of a manager on January 23, 2011. A copy of the discipline letter is attached. c) A copy of the suspension letter dated March 8, 2011 was couriered to the Grievor at her home address on March 10, 2011. A copy of the courier slip is attached. d) Effective February 14, 2011, the Grievor was put on a paid leave pending investigation pursuant to section 36(2) of the Public Service of Ontario Act. The Grievor’s suspension was renewed up to and including June 9, 2011. Copies of the suspension letters are attached. e) The Grievor served her one-day suspension on June 10, 2011. The notification letter is attached. The Grievor then returned to the workplace following her suspension pending investigation effective June 11, 2011. The Grievor worked the 7am to 7pm shift (12 hours) on the following dates upon her return: June 11, 12, 13, 14, 15, 16, 17, 22, 23, 25, 26. f) The Grievor served a three-day suspension (24 hours) on June 27, 2011 (12 hour shift) and June 28, 2011 (12 hour shift) (GSB #2011-1015). - 3 - g) The Grievor contends that in the spring of 2011, there was a lot of upheaval in the Union Local. The Grievor claims that she phoned the local office and left messages, but did not hear back. The Grievor further claims that her relationship with the Chief Steward was strained and she believed he was avoiding her. h) The Grievor states that she spoke to Mr. Mark Sabada, OPSEU representative, on or around June 29 or 30, 2011. Mr. Sabada wrote up the grievance for the Grievor on July 1, 2011 (GSB #2011-1014 and #2011-1015). A copy of the grievance form is attached. i) The Stage 2 grievance meeting was held on July 25, 2011. During the meeting, the Employer sought further clarification of the grievance, including the reference to Bill 168. The Grievor indicated that she had no idea about the reference, it was in Mr. Sabada’s writing and that she just signed it. The Employer did not raise a timeliness objection at the meeting. j) The Stage 2 denial letter was issued August 9, 2011. A copy of the denial letter is attached. k) The Grievor filed a grievance on July 1, 2011 alleging that she was improperly disciplined. A copy of the grievance form is attached. l) The grievance was formally referred to the GSB on July 27, 2011. A copy of the referral letter is attached. m) The Grievor has filed multiple grievances in the past, as early as 2003. A list of the grievances she has filed is attached. n) Mr. Pat Godin (OM16) witnessed the events on January 23, 2011 and submitted an occurrence report. Mr. Godin retired from the Ontario Public Service in February 2013. Three-Day Suspension a) The Grievor was employed as a Correctional Officer at Toronto West Detention Centre. Her date of hire with the Ministry was June 6, 1988. b) The Grievor was given a three-day suspension (3 x 8 hours) on February 28, 2011 for an incident that occurred on October 23, 2010. A copy of the discipline letter is attached. c) A copy of the suspension letter dated February 28, 2011 was couriered to the Grievor at her home address on March 4, 2011. A copy of the courier slip is attached. d) Effective February 14, 2011, the Grievor was put on a paid leave pending investigation pursuant to section 36(2) of the Public Service of Ontario Act. The - 4 - Grievor’s suspension was renewed up to an including June 9, 2010. Copies of the suspension letters are attached. e) The Grievor served a one-day disciplinary suspension on June 10, 2011 (GSB #2011- 1014). She then returned to the workplace following her suspension pending investigation effective June 11, 2011. The Grievor worked the 7am to 7pm shift (12 hours) on the following dates upon her return: June 11, 12, 13, 14, 15, 16, 17, 22, 23, 25, 26. f) The Grievor served her three-day suspension on June 27, 2011 (12 hour shift) and June 28, 2011 (12 hour shift). A copy of the notification letter is attached. g) The Grievor contends that in the spring of 2011, there was a lot of upheaval in the Union Local. The Grievor claims that she phoned the local office and left messages, but did not hear back. The Grievor further claims that her relationship with the Chief Steward was strained and she believed he was avoiding her. h) The Grievor states that she spoke to Mr. Mark Sabada, OPSEU representative, on or around June 29 or 30, 2011. Mr. Sabada wrote up the grievance for the Grievor on July 1, 2011 (GSB #2011-1014 and #2011-1015). A copy of the grievance form is attached. i) The Stage 2 grievance meeting was held on July 25, 2011. During the meeting, the Employer sought further clarification of the grievance, since much of the writing was hard to read. The Grievor indicated she was not sure since Mr. Sabada wrote it. Mr. Nick Mustari, the Grievor’s representative at the meeting, asked if the grievance was in regards to her previous suspension. The Grievor indicated she was not sure and should ask Mr. Sabada. The Employer further indicated that it was her grievance and therefore she should know what it was about. The Employer asked if the Grievor wanted time to talk about the grievance with Mr. Sabada. She indicated yes and left the meeting. As of August 9, 2011, the Employer did not receive any further information from the Grievor or her representative. The Employer did not raise a timeliness objection at the meeting. j) As the Employer could not reach a conclusion on the Grievor’s complaint, her grievance was denied. The Stage 2 denial letter was issued August 9, 2011. A copy of the denial letter is attached. k) The grievance was formally referred to the GSB on July 27, 2011. A copy of the referral letter is attached. l) The Grievor has filed multiple grievances in the past, as early as 2003. A list of the grievances she has filed is attached. m) Ms. Shelly Dhir was involved in a confrontation with the Grievor on October 23, 2010 which led to the 3-day suspension. The events were reported to Acting Operational Manager Chinn. Ms. Dhir passed away in July 2011. Mr. Chinn has returned to his Correctional Officer position in May 2012. - 5 - n) Ms. Dhir was interviewed by an internal investigator regarding the events of October 23, 2010 prior to the allegation meeting and prior to the grievor receiving the three- day suspension. [5] As noted above, the grievor was put on a paid leave pending investigation in mid February of 2011. While still on that paid leave she received a letter regarding the one- day suspension. The letter was dated March 8, 2011 but actually sent on March 10, 2011 and said, in part: …..In determining the appropriate rate of penalty, I have considered all of the available information, including the serious nature of this substantiated allegation; your apparent lack of understanding of the seriousness of this substantiated allegation; your continued denial that you did anything wrong and your lack of forthrightness. I have also considered your length of service and your employment record. I am, under s. 34 and s.35 of the Public Service of Ontario Act, suspending you without pay 1 x 8 hours shifts as follows: To be held in abeyance pending the outcome of your current suspension. Please be advised that a copy of this letter will be placed on your personnel file, and any further instances of this nature may lead to further discipline up to and including dismissal. (Bolding not mine) [6] The grievor was still off work on the paid leave pending investigation on May 31, 2011 when the Employer sent her the following letter again regarding the one day suspension: Please be informed that as a result of your one (1) day suspension (8 hours) without pay, as indicated in your disciplinary letter dated March 8, 2011 from Mr. S. McLeod, Deputy Superintendent Operations, you will serve your period of suspension on the following date: Friday June 10, 2011 – E15 shift – 1 x 8 hours shift Please be reminded that during this inclusive period of suspension you will neither be scheduled nor eligible to be called in for any shifts. [7] The first communication with the grievor regarding the three-day suspension was in a letter dated February 28, 2011. It stated, in part: Your behaviour is in violation of Ministry Policy and Procedures and Standing Orders and it is my expectation that you will act in accordance with these policies in the future. Having considered for review (sic) your personnel file, length of service, all pertinent information and that you are not demonstrating an acceptance of responsibility nor an acknowledgement of the situation, it is my decision that you will be suspended from employment for a period of 24 hours (3 x 8 hour shift) without pay pursuant to section 34 and 35 of the Public Service of Ontario Act. - 6 - Due to your present status of suspension from the workplace with pay pending an investigation regarding a different issue, the specific date(s) of this suspension will be held in abeyance until an appropriate date may be set. Any recurrence of this nature may subject you to further disciplinary action, up to and including dismissal. You are entitled to grieve this decision in accordance with the terms and conditions of your collective agreement. [8] The grievor was informed by letter dated May 31, 2011, that her twenty-four hour suspension would be served on June 27th and June 28th, 2011. [9] The Stage 2 meeting held to discuss both of these grievances was held on July 25, 2011. In responding to the grievance regarding the one day suspension the Employer stated in its letter of August 9, 2011, in part: I asked you to clarify the Bill 168 reference. You stated that you had no idea, that’s Mark’s writing – I just signed it. [10] The Employer letter regarding the three day suspension, also dated August, 9, 2011, stated, in part: I asked you what your grievance was about as the script was very hard to read. You indicated that you were not sure, Mark Sabada wrote it. Your representative asked if this was in regards to your previous suspension. You stated that you weren’t sure and should ask Mark. I indicated that this was your grievance, you should know what it is about. I asked if you wanted to talk about it with Mark. You indicated yes and then left the meeting. As of the date of writing this letter, I have no received any further information from you or your representative. As such, I cannot reach a conclusion to your complaint, therefore, your grievance is denied. [11] One of the agreed upon exhibits was a list of fifteen grievances filed by the grievor during the course of her employment with the Ministry. Two grievances were filed in 2003; one in 2006; two in 2007; one in 2009; six in 2011; and three in 2012. EMPLOYER SUBMISSIONS [12] The Employer contended that both grievances should be dismissed on the basis of timeliness. Article 22.1 of the Collective Agreement states that the parties agree to adjust complaints as quickly as possible and sets out a mandatory timetable to that end. [13] Addressing the matter of the one-day suspension, Ms. Richards, for the Employer noted that the grievor became aware of her suspension on March 10th, 2011 when she took receipt of the Employer’s letter. Accordingly, the “clock started to tick” on that day. The letter of suspension was clear. The grievor could have had no doubt that she was being - 7 - disciplined and the reasons for her suspension. Yet, the grievance was not filed until July 1, 2011, long beyond the thirty days mandated in Article 22.2.1. [14] The Employer conceded that this Board has the statutory authority to extend the time limits set out in the grievance procedure according to section 48.16 of the Labour Relations Act of Ontario, 1995 S. O. Chapter 1, Schedule A (hereinafter referred to as “the Act”). However, it was urged that the arbitral factors established in the considerable jurisprudence that would convince this Board that there are reasonable grounds to extend the mandatory time lines are not present in the instant matter. Section 48.16 of the Act states: Except where a collective agreement states that this subsection does not apply, an arbitrator or arbitration board may extend the time for the taking of any step in the grievance procedure under a collective agreement, despite the expiration of the time, where the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension. 1995, c. 1, Sched. A, s. 48 (16). [15] Generally speaking, according to the Employer, arbitrators consider the reasons for the delay, the length of delay and the nature of the grievance. In this case, the facts regarding the delay do not lead to “reasonable grounds for extension”. Further, there is prejudice to the Employer. [16] Ms. Richards, addressing the nature of the grievance, said that a one-day suspension is not significant discipline and is at the low end of the spectrum in progressive discipline. [17] The Employer asserted that the length of the delay is considerable. The grievor was made aware of her suspension on March 10, 2011 and she did not file a grievance until July 1, 2011, some two and a half months beyond the time limits set out in the Collective Agreement. Further, the delay was at the outset of the grievance procedure which ought to weigh more heavily against the grievor. If the Employer is not put on notice that the employee is grieving an action, it assumes that the matter is abandoned. [18] The Employer urged that the Board not forget that this grievor had experience with the grievance procedure and therefore cannot claim ignorance of the process. According to the agreed facts, she filed at least six grievances prior to the matters at issue in this preliminary motion. That past involvement with the dispute resolution process as set out in the Collective Agreement militates against an exercise of this Board’s statutory authority to extend the time limits. [19] The Employer also contended that the grievor’s only explanation, according to the agreed facts, was that there was “upheaval” in the local Union. She claimed that she called the local office and left messages but got no response. As the result of a strained relationship with her Chief Steward, she thought he was avoiding her and therefore she did not speak to anyone until the end of June, even though she returned to work on June 11, 2010. The mere fact that some one is out of the workplace does not lead to a finding that grievances can be filed out of time. The grievor could have, and should have, spoken - 8 - to other Union representatives by telephone. She could have called the Provincial office. Indeed, it is readily apparent that all of these facts are insufficient to find that there are reasonable grounds for an extension of the mandatory time limits. [20] The Employer suggested that it would experience prejudice if the grievances were heard on the merits. The Operating Manager who was involved in the incident that brought about the one-day suspension has since retired. Moreover, it is noteworthy that memories fade over time and that is particularly worrisome for the Employer in matters where it bears the onus of proof. [21] The Employer relied upon Re OPSEU (Gangasingh) and Metropolitan Toronto Housing Authority, GSB 1386-94 (Mikus, 1995); Re OPSEU (Mazara) and Ministry of Community Safety and Correctional Services, GSB 2009-1065 (Gray, 2012); Re OPSEU (Smith et al) and Ministry of Community and Social Services, GSB 2006-2107 (Gray, 2008); Re OPSEU (Ng) and Ministry of Government Services, GSB 2009-3379 (Mikus, 2010); Re OBLEU (Hamilton et al) and Liquor Control Board of Ontario, GSB 329/98 (Harris, 2000); and Re Helen Henderson Care Centre and Service Employees Union, Local 183 (1992), 30 L.A.C. (4th) 150 (Emrich). [22] The Employer’s argument regarding the three-day suspension was virtually identical to that set out above for the one-day suspension. There was very little difference in the length of the delay or for the grievor’s rationale for the delay. However, in the case of the three-day suspension, the letter of discipline specifically stated that the grievor had the right to file a grievance in accordance with the Collective Agreement. That reminder of her rights should have caused her to take action quickly but it did not. Her failure to do so is sufficient to find this grievance out of time. [23] The Employer noted that it would be significantly prejudiced if the three day suspension were allowed to proceed on the merits because the Employer’s key witness has since expired. Although, as set out in the agreed facts, the Operating Manager was interviewed prior to the grievor being suspended, that evidence would be hearsay and therefore a problem to the Employer who bears the burden of proof. UNION SUBMISSIONS [24] Ms. Riddell, for the Union, conceded that the grievances were filed late but urged this Board to exercise its discretion to extend the time limits and hear both grievances on the merits. It is importance to recall that the context of these grievances are such that they set out the ground work leading to the grievor’s ultimate termination of employment. [25] Given that the grievor’s livelihood is at stake the Board should be extremely cautious about dismissing the grievances on the basis of the Employer’s technical objection. [26] The Union contended that there are reasonable grounds for the extension of the time limits that are set out in the Collective Agreement. The Union agreed with the Employer’s suggestion that the arbitral jurisprudence has established that there are a number of factors for a Board of Arbitration to take into account in determining whether - 9 - to exercise its discretion to extend the time limits. Turning first to the nature of the grievances, these grievances take on a matter of considerable importance because they form the basis for higher and higher levels of discipline that directly underpin her termination. There is no matter of more importance than termination. [27] It was noted by the Union that the grievor is a 57-year-old woman who is too young to retire and, as the result of her twenty-four years of seniority, has little work experience outside the Ministry. She is a diabetic with significant health care expenses. All of these factors should also be taken into account when determining whether to extend the time limits. [28] The Union conceded that the approximately three-month delay in the filing of this grievance is not insignificant. However, this period should be considered in terms of the general pace of the grievance and arbitration process. Indeed, it took the Employer more than seven weeks after the offending incident in one case and three months in the other to actually impose the discipline. [29] Ms. Riddell asked the Board to note that the letter of discipline regarding the one-day suspension is very unclear. It was said that the suspension was “to be held in abeyance pending the outcome of your current suspension”. That obfuscation caused the grievor to be confused. It was unclear whether the timing of the suspension was being held in abeyance or the fact of the suspension. It is quite conceivable that a reasonable person might read that sentence and decide that nothing was taking place while absent on a paid leave of absence pending investigation. The letter itself is sufficiently vague so as to cause doubts about whether a grievance needed to be filed to contest the matter. [30] It was conceded by the Union that the wording of the three-day suspension was clearer. However, there was still potential for confusion. It is understandable if she thought there was nothing to do because she was absent from the workplace. Indeed, she had been told repeatedly in writing that she was not to attend at the workplace during the period of her paid leave. It is reasonable that she thought she could not even telephone the work place and speak with her Union representative. She did attempt to speak with a Union rep at the Union office and left a message but no one returned her calls. Her paid leave status left her little or no understanding as to what rules were to be followed. She can only be found to be partially responsible for the late filing of the grievances. The rest of the responsibility lies at the feet of the Employer who caused confusion with the wording of the disciplinary letters. Given this unique situation and the serious nature of these grievances should lead this Board to find there are reasonable grounds to extend the time limits. [31] The Union took issue with the Employer’s view that there is substantial prejudice. Simply put, there is no evidence of demonstrable prejudice to the Employer. While it is true that one OM has died, the Employer had already conducted its investigation and even if the grievance were filed in a timely fashion, the witness would have been unable to give evidence. The OM who has retired can be subpoenaed and therefore there is no inherent prejudice. - 10 - [32] The Union relied upon Re Becker Milk Company and Teamsters Union, Local 646 (1978), 19 L.A.C. (2d) 217 (Burkett); Re Greater Niagara General Hospital and Ontario Nurses’ Association (1981), 1 L.A.C. (3d) 1 (Schiff); Re OBLEU (Aleong) and Liquor Board of Ontario, GSB 1318/96 (Gray, 1997); OPSEU (Stone) and Ontario Clean Water Agency, GSB 1111/99 (Johnston, 2001); Re Toronto Western Hospital and Ontario Nurses’ Association (1983), 9 L.A.C. (3d) 91 (Teplitsky); Re Royal Crest Lifecare Group and Service Employees International Union, Local 204 (Grossett Grievance) (2000), 91 L.A.C. (4th) 389 (Craven); Re City of Thunder Bay and Canadian Union of Public Employees, Local 87 (2006), O.L.A.A. No. 420 (Springate); and Re CUPE and Prince Albert Parkland Health Region (2005), 136 L.A.C. (4th) 375 (Pelton). [33] The Union argued that the Employer has waived its right to object to the timeliness of the one-day suspension because it failed to make any objection to the timing of the grievance at the Stage 2 meeting or in its response thereto. The Employer was in receipt of all of the knowledge it needed to make known its objection to the timeliness of the one-day suspension grievance at the Stage 2 meeting. It was incumbent upon the Employer to raise its objection in a timely fashion. It should have been raised at the first opportunity and not mentioned until just prior to the arbitration. EMPLOYER REPLY SUBMISSIONS [34] Ms. Richards urged that this Board resist the Union’s suggestion to place significance upon the fact that the grievor was ultimately discharged. Indeed, the termination of employment did not occur until December of 2012, almost twenty months after the imposition of these disciplines. The fact that the grievor was discharged is not relevant to the consideration of whether these grievances should be dismissed on the basis of timeliness. The Board ought not look to events that took place much later in its effort to determine whether there is reasonable ground to extend the time limits of these grievances. [35] The Employer took issue with the Union’s contention that the letter of discipline for the one-day suspension was unclear. It was abundantly clear that the grievor was being suspended. The only matter held in abeyance was the scheduling of that eight-hour period because the grievor was absent from the workplace on a paid suspension. No reasonable person would have read that letter and thought that the Employer was equivocating. [36] Further, the Employer noted that there is nothing in the agreed facts and therefore no evidence that the grievor did not understand the letter she was sent by the Employer. Nor is there evidence that the grievor did not know the provisions of the Collective Agreement; that she thought she could not attend at the workplace for the purpose of discussing her suspensions with Union representatives; that the Union was unavailable; or that she attempted to speak with anyone other than the Steward with whom she had a strained relationship. Finally, there was no evidence that the grievor thought she could file the grievances when she returned to work. Accordingly, it must be said that there was - 11 - no due diligence on the grievor’s part and therefore she is wholly responsible for the delay. [37] The Employer contested that the Union’s view of the need for the Employer to demonstrate substantial prejudice. Such evidence is not necessary in order for this Board to dismiss the grievances on the basis of timeliness. [38] Regarding the matter of waiver, the Employer urged that waiver must be clear and intentional. It must be informed and direct and it is incumbent on the moving party to prove waiver and the Union has failed to do so. [39] A finding of waiver is dependent on the facts in any particular case, according to the Employer. In this case, it is apparent from the Employer’s response to the grievor after the Stage 2 meeting that while some matters were discussed, it did not know the complete extent of the grievance and the grievor failed to provide the information when asked to do so. If the Employer is obliged to object in every instance where it does not yet understand the entire scope of the issues considered in a grievance, then it may feel compelled to reserve its right to object to timeliness all of the time which is a result that makes no labour relations sense. Any “fresh step” to be taken is done at the Stage 2 meeting. That can only be taken if there is full discussion of the issues which did not occur with these grievances UNION REPLY – WAIVER [40] The Union urged that a close review of the letter following the Stage 2 meeting reveals that there was a full discussion and understanding of the nature of the grievance. The Employer clearly understood that she was grieving the unjust discipline. What remained unclear was the matter of her allegations regarding Bill 168. The lack of clarification on that narrow issue is not sufficient to suggest there was no waiver. [41] Ms. Riddell said that in the event this Board finds that there must be informed discussion for waiver to apply, it occurred in this case. There can be no doubt, according to the wording of the Stage 2 response letter, that the nature of the grievance and the salient facts that gave rise to the grievance were discussed at that meeting. DECISION [42] Turning first to the matter of the one-day suspension, the Union argued that the Employer has waived its right to object to the timeliness of the filing of this grievance. After consideration, I agree with that contention. [43] In Re OPSEU and MCYS (Moody), (supra), Vice Chair Abramsky noted at paragraph 2: The Parties agree that the Joint File Review (“JFR”) process is an administrative procedure the purpose of which is to schedule dates for those grievances the - 12 - Union has referred to hearing. JFR is simply a scheduling process and the Parties do not attribute to it any significance beyond this. In short, the Parties agree that JFR does not constitute a “fresh step” in proceedings between the Parties. [44] Accordingly, the Employer is not faulted for its failure to raise any timeliness concern at the Joint File Review wherein this grievance was scheduled. Indeed, the agreement that the JFR is not a fresh step makes much sense in terms of the relationship of these parties and their procedure for the assignment of cases to various Vice Chairs of the Board. [45] The facts before Vice Chair Abramsky were significantly different than those before this Board. Vice Chair Abramsky was considering whether the Employer had waived its right to object to a late referral to arbitrate the grievance. Therefore, in her deliberations she considered communication that occurred subsequent to the filing of the referral letter. In the case at hand, the issue is whether the Employer waived its right to object to a grievance that was initially filed beyond the time limits set out in the Collective Agreement. As a result, I must consider actions and communications that have taken place since the filing of the grievance. [46] It is agreed by the parties that there was a Stage 2 grievance meeting. Further, it is apparent from the Stage 2 response that there was some discussion about the merits of the grievance. However, it was the Employer’s contention that there was confusion about the full scope of the grievance and therefore this discussion was not fully informed. [47] The letter, dated August 9, 2011, sent by the Employer after the Stage 2 meeting is informative. It states: Re: Stage 2 Grievance Meeting – July 25, 2011 On Monday July 25, 2011 a stage 2 grievance meeting was held with respect to your grievances dated July 1, 2011. Present at this meeting was yourself, Mr. Nick Mustari your representative, myself and Mr. Mike MacLennan, Operational Manager. Your grievance states: Violation of following (including but not limited to) with respect to January 23, 2011 Article 3.1 no discrimination I was not allowed to get my insulin and got suspended. Bill 168, health and Safety Full disclosure Settlement desired: “reinstatement of overtime pay for day suspended removal of disciplinary references restore premiums pension contributions premiums etc sensitivity training for managers dealing with diabetic employees + $2,000,000.00 punitive damages.” - 13 - You indicated that the manager wouldn’t let you get your insulin from your vehicle. You said that you had a routine – park on the west wing, go to muster, leave to go to car after the muster, move the car to the east side then go to my post. You said that the manager had indicated no one was to leave, staff shortages that day and he needed everyone to be where they should be. You also said that the manager had said that he would suspend you if you left you left and got suspended. Later on you said that you called him later that morning and he said, “are you calling to apologize”. You said yes and he said to come back. He then called me back and said that he had talked to the boss and said to stay away. I asked you to clarify the Bill 168 reference. You stated that you had no idea, that’s Mark’s writing – I just signed it. I asked you if you were ready to work that morning. You indicated no. I indicated that it is the expectation that all employees report to work and be ready to work. The first paragraph of the local Standing Orders dated March 2003 – Order Number 1, Attendance/Assignment of Duties – Page 1, Reporting for Work, states: “Employees must report to work on time and ready to perform assigned duties….” You were told not to leave, you left. You knew what would happen if you left, you left anyway. Based on the above, I find that there is no violation of the collective agreement and your grievance is denied. [48] In my view, it is apparent from the Employer’s Stage 2 response that the Employer had a fairly comprehensive understanding of the salient facts regarding the grievance at issue. The Employer representatives would have known why the grievor was suspended and during the meeting it learned various facts from the grievor. While I accept there was no specificity provided regarding the Bill 168 allegation, the Employer knew – or ought to have known - that the grievor and the Union were of the view that she had been improperly suspended for one day on as the result of an incident that took place on January 23, 2011. It knew that the grievor was informed of the suspension March 8, 2011 and finally, it knew that the grievance itself was dated July 1, 2011. [49] I am of the view that the Employer was in possession of all of the facts necessary to make an informed decision that the grievance was out of time by the time of the Stage 2 meeting. Notwithstanding the almost four month difference between the imposition of the discipline and the filing of the grievance, the Employer discussed the merits of the grievance during the Stage 2 meeting but failed to make any mention that the grievance was out of time. [50] I do not accept the Employer’s contention that the discussion was incomplete or unfinished because of the reference to Bill 168. Nor do I think that the grievor’s failure to provide specifics about the Bill 168 reference was enough to render the Employer confused and therefore so insufficiently informed that it did not appreciate that the grievance was filed beyond the time limits set out in the Collective Agreement. Indeed, - 14 - there is nothing in the letter of August 9, 2011 that suggested confusion or indecision. Rather, the letter contains a clear statement that based on the discussion held during the meeting; the Employer was of the view that there was no violation of the Collective Agreement. It is somewhat convenient for the Employer to now suggest that it was confused. [51] The Employer also had an opportunity to raise the matter of timeliness in its Stage 2 response. The meeting was held on July 25, 2011 and the date of the Employer’s response was August 9, 2011. There was more than two weeks beyond the Stage 2 meeting to reflect upon the facts and timing of the grievance. [52] Unlike the case before Vice Chair Abramsky, the Board was not provided with any notice sent by the Employer to the Union that there may be preliminary objections that would be put before the Board for determination. In Re Moody, supra, this notice was set out in the Employer’s written request for particulars. There is no evidence of any such communication in the agreed facts before this Board. [53] For those reasons, the Employer has waived its right to object to the timeliness of the filing of the grievance regarding the one-day suspension. [54] Turning to the three-day suspension, the Employer noted that the grievor was informed of her suspension on February 28, 2011 for an incident that occurred in October of 2010. The grievance in this regard was also filed on July 1, 2011. As such, it is the Employer’s view that the grievor has failed to comply with the time limits as set out in the collective agreement. There was no suggestion from the Union that in this instance the Employer waived its rights. [55] The Employer’s Stage 2 reply stated, in part: I asked you what your grievance was about as the script was very hard to read. You indicated that you were not sure. Mark Sabada wrote it. Your representative asked if this was in regards to your previous suspension. You stated that you weren’t sure and should ask Mark. I indicated that it was your grievance, you should know what it is about. I asked if you wanted to talk about it with Mark. You indicated yes and then left the meeting. As of the date of the writing of this letter, I have not received any further information from you or your representative. As such, I cannot reach a conclusion to your complaint, therefore your grievance is denied. [56] As noted above, there was no issue of waiver regarding this grievance. However, the Union asked the Board to find that, given the nature of the grievance and the fact that it is, in essence, a cornerstone for the grievor’s eventual termination, this Board should exercise its jurisdiction to extend the time limits and hear the grievance on its merits. - 15 - [57] Section 48(16) of the Labour Relations Act, provides arbitrators with the power to “extend the time for the taking of any step in the grievance procedure under a collective agreement, despite the expiration of time, where the arbitrator….. is satisfied that there are reasonable grounds for the extension and that the opposite party will be not substantially prejudiced by the extension…” [58] After consideration, I am of the view that there are not reasonable grounds for the extension of time limits. The Employer sent the grievor a clearly worded letter on February 28, 2011 stating that she was being suspended for twenty-four hours as the result of four allegations regarding her conduct on October 23, 2010 and November 6, 2010. I disagree with the Union that there was any confusion in this letter. It was sent after the parties met to discuss the allegations and the letter stated clearly that her suspension would be served at a later time “due to your present status of suspension from the workplace with pay pending an investigation regarding a different issue.” It also noted “any reoccurrence of this nature may subject you to further disciplinary action, up to and including dismissal.” Finally, the letter concluded with the statement that she is “entitled to grieve this decision in accordance with the terms and conditions of your collective agreement.” These statements would have left no doubt that the Employer had decided to suspend the grievor for a twenty-four hour period. [59] None of the reasons set out in the agreed statement of fact relied upon by the Union in its submissions lead to a finding that there are reasonable grounds for an extension of the time limits. I accept that there was upheaval in the local Union as stipulated and that the grievor phoned the local Union office and left messages. The fact that she was not on the best of terms with the Chief Steward and did not hear back does not cause the “clock to stop ticking”. [60] The grievor returned to work after her suspension with pay on June 11, 2011 and yet did not file the grievance regarding her three-day suspension for another twenty days. I simply do not accept the Union’s contention that the pace of how this matter unfolded mitigates her failure to file a grievance in a timely fashion. [61] It was suggested that a reasonable person might have thought that there was nothing to be done until the actual suspension was served. Even if I accepted that assertion, the facts do not substantiate that this grievor held that misapprehension. It was agreed that she called the Union office and left messages prior to her returning to the workplace and serving her suspension. [62] The Union urged that I should consider the nature of the grievance in my deliberations. There is much jurisprudence regarding whether suspensions are matters that should cause an arbitrator to exercise her jurisdiction to extend the time limits given their significance. I accept that a three-day suspension is not an insignificant issue. However, in the facts of - 16 - this case, a three-day suspension is not sufficiently onerous in nature so as to lead me to find that there are reasonable grounds for extension of the time limits. [63] The Union also asked this Board to take into account the fact that this grievance is an underpinning for the grievor’s later termination. While that suggestion has some initial attraction, I must decline the Union’s invitation in this regard. If an individual is terminated after a long but unchallenged disciplinary history, should an arbitrator agree to hear newly filed grievances regarding the entire disciplinary history merely because it culminates in a termination? I think not. While that might be the extreme example of what the Union is suggesting, it illustrates the difficulty with the argument. An individual cannot ask this Board to re-visit or re-open their previously unchallenged disciplinary history merely because they are ultimately faced with a termination of employment. [64] The Union urged that the length of the delay in the filing of the grievance is relatively insignificant. I disagree. While there is much and varying jurisprudence on this point as well, it is difficult to find that three months is a trifle. The evidence before this Board revealed that this grievor has filed grievances in the past. Prior to the two grievances considered in this award, the grievor had filed six grievances regarding various matters including overtime, incorrect pay and discrimination. That history would suggest that she had some familiarity with the provisions of the Collective Agreement including the grievance procedure. [65] For all of those reasons and taking all of the particular facts in this case into account, I decline to exercise my discretion to extend the time limits set out in the Collective Agreement. Accordingly, I dismiss the three-day suspension on the basis that it is beyond the time limits set out in the Collective Agreement. Dated at Toronto, Ontario this 7th day of June 2013. Felicity D. Briggs, Vice-Chair