HomeMy WebLinkAbout2011-3848.Weiler.13-11-21 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#2011-3848, 2011-3849
UNION#2010-0517-0056, 2010-0517-0057
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Weiler) Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Loretta Mikus Vice-Chair
FOR THE UNION Sheila Riddell
Ryder Wright Blair & Holmes LLP
Barristers and Solicitors
Counsel
FOR THE EMPLOYER Kevin Dorgan
Ministry of Government Services
Legal Services Branch
Counsel
HEARING February 19, 2013
- 2 -
Decision
[1] The grievor, Shawn Weiler, filed a grievance on May 25, 2010, regarding several
allegations that he had been derelict in his duties during an incident on May 5, 2010 at the
Metro West Detention Centre. This award deals with a preliminary objection to my
jurisdiction to hear this grievance on the basis of delay in submitting it to arbitration.
[2] For purposes of this hearing the parties have agreed as follows:
1. Shawn Weiler (The Grievor) is employed as a Correctional Officer (CO2) at
Maplehurst Correctional Complex in the Ministry of Community Safety and
Correctional Services.
2. On May 25, 2010, the grievor filed two grievances: GSB #2011-3848, OPSEU
#2010-0517-0058 (Exhibit #1) and GSB #2011-3849, OPSEU # 2010-0517-0057
(Exhibit # 2).
3. A Stage Two meeting was held on June 16, 2010 with respect to the two grievances
filed by the Grievor.
4. In a letter dated June 17, 2010, the Employer denied the grievances.
5. The two grievances were referred to arbitration on March 20, 2012. (Exhibit #3)
[3] Mr. Kevin Dorgan, for the Employer, took the position that the collective agreement clearly
requires the Union to refer a grievance to arbitration within 15 days of the response by the
Employer. These grievances were referred well outside of that time limit and this Board
does not have jurisdiction to proceed.
[4] Ms. Sheila Riddell, for the Union, conceded that the grievances were not filed within the
time limits in the collective agreement but submitted that, given the serious nature of the
grievances and the effect these accusations have had on the grievor’s personal and
professional life, this Board should allow an extension to the time limits and accept
jurisdiction. The grievor is not responsible for the delay and deserves to have his
complaints addressed.
[5] The relevant provision of the Collective Agreement reads as follows:
22.4 If the grievor is not satisfied with the decision of the Deputy Minister or
his or her designate or if he or she does not receive the decision within
the specified time the grievor may apply for a hearing of the grievance
within fifteen (15) days of the date he or she received the decision.
- 3 -
[6] It is true that an arbitrator has discretion to relieve against time limits of a collective
agreement, even mandatory time limits if the criteria set out in section 48(16) of the Labour
Relations Act have been satisfied. That section reads as follows:
Extension of Time: 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.
[7] However, the history of that provision is significant. In 1992, when it was amended to
include the arbitration process, it was an intentional addition that was to widen the
arbitrator’s jurisdiction to allow the parties to get to the real issue before the Board. The
subsequent amendment in 1995 was again a deliberate change to the Act to make it clear
that there was to be no relief for a failure to meet the time requirements for referring a
grievance to arbitration. The court decision in Re Leisure World Nursing Homes Ltd. and
Service Employees international Union, Local 204 confirms that interpretation. The Court
could not have been clearer. It stated in paragraph 19 as follows:
“The jurisdiction to grant relief from time limitations with respect to grievances should
not be interpreted to also grant relief from time limits from referrals to arbitration.
Section 48 (16) is clear and unambiguous. To conclude otherwise is to conclude that the
deletion of the words “or arbitration” from the 1995 version had no effect whatsoever.
The words in the statute must be given their clear meaning. The Board had no
jurisdiction to extend the time limit for referral to arbitration”
[8] Where the Union, in the past, had suggested that if the language in the Collective
Agreement melds the two procedures so that there is no distinction or separation between
the grievance and arbitration process, a Board of Arbitration should apply section 48(16)
and exercise its discretion. That question has been effectively answered in the decision of
Cherry and the Minister of Finance (GSB#0626/01). In that decision Vice-Chair Gray
stated as follows in paragraph 13:
… Thereafter, this grievance was not referred to arbitration by the Union for nearly
fifteen 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.
- 4 -
[9] The jurisprudence at the GSB on this issue is clear, unequivocal and consistent.
Notwithstanding section 48(16) of the Labour Relations Act, an arbitrator does not have the
jurisdiction to extend the time limits in a collective agreement for a referral of a grievance
to arbitration.
[10] For these reasons, Employer’s motion is granted and the grievance is dismissed.
Dated at Toronto, Ontario this 21st day of November 2013.
Loretta Mikus, Vice-Chair