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HomeMy WebLinkAbout1996-1635.Gamble.98-09-01 -.. ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS t80 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G tZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G tZ8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 163 S/96 OLB # 228/96 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (KeVIn Gamble) Grievor - and - The Crown m RIght of Ontano (Liquor Control Board of Ontario) Employer BEFORE Owen V Gray Vice-Chmr FOR THE Bernard Fishbem UNION Counsel Koslae & Minsky Bamsters & SoliCitors FOR THE Bnan W Burkett EMPLOYER Counsel Heenan Blailae Bamsters & SoliCItors HEARING April 2, 1998 - . DECISION [1] The employer dIscharged Kevm Gamble from Its employment by letter dated Septem.ber 22, 1994 A gnevance complammg of "wrongfull [SIC] dIsmIssal" was filed m mId September 1996, roughly two years later The employer asks that I dIsmIss the gnevance as untlmely, wIthout consldermg ItS ments At all relevant tlmes the partIes' collectlve agreement provIded that 277 An employee claunmg he/she has been dIsmISsed wIthout Just cause shall be entItled to file a gnevance commencmg at Stage 3 provIded he/she does so wIthm ten (10) days of the date of the dIsmIssal. 2712 Where a gnevance IS not processed wIthm the tune allowed or has not been processed by the employee or the Umon wIthm the tIme prescribed It shall be deemed to have been wIthdrawn. [2] The umon asks that I exerCIse my authonty to extend the tlme for filmg the gnevance, pursuant to subsectlOn 48(16) of the Labour Relatwns Act, 1995, SO 1995, c. 1, Sch. A ("the LRA"), whIch applIes to these proceedmgs by vIrtue of subsectlOn 7(3) of the Crown Employees Collectwe Bargammg Act, 1993, SO 1993, c. 38, as amended SubsectlOn 48(16) of the LRA provIdes that (16) Except where a collectIVe agreement states that thIS subsectIOn does not apply an arbItrator or arbItratIOn board may extend the tune for the takmg of any step m the gnevance procedure under a collectIve agree- ment, despIte the eXpIratIOn of the tune, 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. Facts [3] The gnevor began workmg for the employer as a part tlme employee m 1981 or 1982 He became a full tlme employee m 1989 or 1990 He was sus pended wIth pay effectlve September 8, 1994 pendmg an mvestlgatlOn mto hIS -~ . - 2 alleged faIlure to follow "Return-To-Stock" procedures at the store at whIch he was then workmg That alleged mIsconduct was also the subject of crImmal charges for whICh he had been arrested, and was the reason the employer gave for termmatmg hIS employment m ItS letter to hIm of September 22, 1994 [4] In the course of hIS employment, Mr Gamble had learned that there was a collectIve agreement that set out terms and condItIOns of employment, and that the umon represented hIm m matters relatmg to hIS employment. As a result of hIS suspensIOn, the grIevor arranged to meet wIth Ron Kennedy, a umon repre- sentatIve, to dISCUSS filmg a grIevance As a result of the crImmal charges he re- tamed a lawyer, referred to here as DB, to represent hIm m the crImmal pro- ceedmgs He testIfied that D.B told hIm that he was not to file a grIevance or talk to the umon, and that he (D B) would take care of speakmg to or wrItmg to the umon. The grIevor then telep honed Mr Kennedy before theIr scheduled meetmg, and told hIm that on the mstructIOns of hIS lawyer he would not be fil mg a grIevance or speakmg further wIth the umon. Mr Kennedy was qUIte sur- prIsed by thIS, but made no attempt to persuade the grIevor to file a grIevance despIte whatever hIS lawyer may have told hIm. There IS no eVIdence or sugges- tIon that D.B wrote or spoke to the umon or that the grIevor later asked hIm whether he had done so [5] The grIevor claIms to have thought that If he were to be acqUItted of the crImmal charges he would get hIs Job back wIthout gomg through the grIevance procedure He testIfied that D B told hIm that another LCBO employee who was dIsmIssed and crImmally charged took hIS advIce and got hIS Job back when the charges were dropped, wIthout gomg through the grIevance procedure I should note that whIle I accept the grIevor's uncontradIcted testImony that DB told rum thIS, It IS not proof that what D B SaId was true There IS no eVIdence before me that the LCBO had a polIcy or practIce of remstatmg employees who were dIsmIssed for conduct m respect of whIch crImmal charges were later dropped or dIsmIssed even If the employees had not grIeved, nor even that It had done so on the occaSIOn that D,B apparently descrIbed to the grIevor There IS no eVIdence -- I 3 that the employer dId or saId anythmg that mduced m the gnevor tills belIef that he could get hIS Job back wIthout filmg a gnevance, sImply by successfully defendmg the cnmmal charges agamst hIm. [6] In the fall of 1995 the gnevor fired DB He testified that he was con- cerned about D.B's unprofessIOnal conduct after DB arnved at one court ap- pearance wearmg track pants and a sweat ShIrt and faIled to attend the next court appearance He retamed new lawyers He dId not raIse ills employment sItuatIOn WIth the new lawyers, nor they WIth hIm, however, untIl on or shortly before hIS last appearance m cnmmal court m Apnl 1996 At or a few days be- fore that appearance, one of ills new lawyers asked If he had proceeded WIth a gnevance When he saId he had not, she told hIm that he should contact the un- IOn. At hIS last court appearance m Apnl 1996 the Crown dropped the out- standmg charges [7] Some time thereafter, the gnevor telephoned the LCBO head office, whIch gave illm the telephone number for the umon. When he telephoned that number, the umon's receptIOmst put hIm m touch WIth DavId Lee, whom the receptIOmst saId was the umon representative for the area Mr Lee told hIm that he should speak WIth the person who was the umon representative for the area at the time of hIS dIscharge. That was Mr Kennedy When the gnevor contacted Mr Ken- nedy, Mr Kennedy told hIm that he would have to speak to another umon repre- sentative, Gerry ChaykowskI, about filmg a dIscharge gnevance The gnevor tes tIfied that Mr ChaykowskI was hard to reach. They eventually met m a tavern, he sald, and that led to the filmg of the gnevance now before me dated Septem- ber 13, 1996 [8] The gnevor was vague about when these vanous conversatIOns WIth the umon's receptIOmst and umon representatives took place Mr Kennedy testified that he could not gIve a date or time for the 1996 conversatIOn m whIch he re- ferred the gnevor to Mr ChaykowskI. He stated that he made the referral be- cause dIscharge gnevances are filed at stage 3 of the gnevance process and It was not part of hIS functIOn to handle stage 3 gnevances Accordmg to the ~ 4- grIevor's account, May would be the latest that that conversatIOn occurred. The grIevor testified m chIef that durmg thIS time frame he was gomg through mar rIage counsellmg and a separatIOn from hIS wIfe, hIS father was III and hIS aunt and uncle dIed. The grIevor had dIfficulty m cross-exammatIOn and re- exammatIOn explammg why It took from May untIl September for hIm to meet WIth Mr ChaykowskI and sIgn a grIevance Mr ChaykowskI dId not testIfy [9] The grIevor testified that he wants to return to work for the LCBO, and that compensatIOn for the mtervenmg perIod IS not an Issue [10] Yolanda SImone IS the employer's Manager for HR ServIces for Central RegIOn. She testified that when a dIscharge grIevance IS filed at stage 3 It goes to the RegIOnal DIrector and then the HR Manager handles It from there. The HR Manager would be responsIble for gettmg the correspondence, speakmg WIth the DIstrIct Manager and Store Manager mvolved, gettmg theIr documentatIOn and speakmg WIth Loss PreventIOn If there was a crImmal proceedmg Ms SImone was asked m cross-exammatIOn whether the LCBO had taken the steps de- scribed when thIS grIevance was filed m September 1996 She replIed that It had been attemptmg to do so She dId not Identify any respect m WhICh It appeared that the attempt had been less frUItful than It would have been If conducted m September 1994 [11] Ms SImone IdentIfied the two mvestIgators who would have conducted the orIgmal mvestIgatIOn of the grIevor's conduct m 1994 One was still em- ployed by the LCBO The other had retired about 6 months prIOr to the hearmg, more than a year after thIS grIevance was filed There was no suggestIOn that he IS beyond the reach of a summons or otherwIse unable to testify The person who was HR Manager for Central RegIOn when the grIevor was dIscharged has smce retired She had health problems at the time of the dIscharge and may not have been at work at that time The person who was HR Manager for Central RegIOn when the grIevance was filed has smce retIred He also had health problems and may not have been at work at the time the grIevance was filed and, m any event, dId not have any dIrect mvolvement m the gnevor's dIscharge The mdIvIduals - 5 who were Store Manager, DIstrIct Manager and RegIOnal Manager at the tIme of the gnevor's dIscharge are all stIll employed by the LeBO There IS no sugges tIon that any relevant documents known to have been III eXIstence III September 1994 were lost or destroyed between then and September 1996 [12] ArtIcle 27 of the partIes' collectIve agreement provIdes, III part, as follows 27.3 . Stage 1 (Complaint Stage) (a) (i) An employee who has a complamt or a chfference shall ms- cuss the complamt or chfference wIth hIslher supervIsor, as desIgnated by the Employers, wIthm ten (10) days of the em ployee first becommg aware of the CIrcumstances gIVmg nse to the complamt or chfference (c) If the complamt or chfference IS not satIsfactorily resolved by the supervIsor, It may be processed wIthm an admtIOnal ten (10) days from the date of the supervIsor's response or the eXpIratIOn of the trme wmts set out m (b) above, m the followmg manner 274 Stage 2 (a) The employee may file a gnevance m wntmg WIth hIslher super VIsor specIfymg the clause or clauses m thIs Agreement alleged to have been VIOlated. (b) The supervIsor shall complete an mvestIgatIOn of the gnevance and provIde the gnevor WIth hIslher wntten deCISIOn wIthm fIf teen (15) davs of receIVmg the gnevance The mvestIgatIOn may mclude a meetmg WIth the employee affordmg hrm an opportu mty to be heard. 27.5 Stage 3 (a) (i) If the gnevance IS not resolved under Article 27 4, the em ployee may submIt the gnevance to the ChaIrman of the LCBO or ChaIrman of the LLBO or theIr respective desIg nees [SIC] wIthm five (5) days of the date that he/she receIVed the decIsIOn under ArtIcle 27 4 276 Stage 4 If the gnevor IS not satIsfied WIth the deCISIOn of the ChaIrman or deSIgnee [SIC] or If a decIsIOn IS not receIVed wIthm the specIfied trme wmts, the gnevor may apply to the Crown Employees Gnevance Set dement Board for a heanng of the gnevance wIthm five (5) days of the date he/she receIved the declSlon or wIthm five (5) days of the eXpIratIOn of the specIfied trme lImIt for receIVmg a deCISIOn 277 An employee clarmmg he/she has been msmIssed WIthout Just cause shall be entItled to file a gnevance commencmg at Stage 3 provIded he/she does so wIthm ten (10) days of the date of the msmIssal. ~ , - 6 - 2713 Where a gnevance IS not processed wIthm the tune allowed or has not been processed by the employee or the Umon wIthm the tune prescribed It shall be deemed to have been WIthdrawn. The preamble to the collective agreement provIdes that the purpose of the agreement IS "to establIsh and contmue harmomous relatIOns between the Em- ployers and the employees covered by tills Agreement and conSIstent therewIth to prOVIde procedures for the prompt and Just dISposItIOn of dIfferences and gnevances." The wntten gnevance here was submItted at stage 3 Argument [13] Umon counsel argued that the time lImIts m ArtIcle 27 have a subjective element. OPSEU (pr,erre) and Mimstry of Correctwnal ServLCes, 0492/86 (Febru- ary 22, 1988, Venty), Jud rev demed sub nom. The Queen Ln R~ght of Ontarw as represented by the Mimstry of Correctwnal Sermces v Ontarw PublLc Serv~ce Employees Umon and the Gnevance Settlement Board (1990), 74 0 R. (2d) 700 (ant. DIV Ct.), OLBEU (Gordon) and LCBO, 0048/89 (January 10, 1991, DIS- sanayake) As a result, he submItted, time dId not begm to run under those pro- VISIOns until the gnevor's lawyer told hIm m Apnl 1996 that he should contact the umon about filmg a gnevance [14] As for the penod Apnl 1996 to September 1996, or September 1994 to September 1996 If the first submISSIOn IS rejected, the umon asked that I exer Clse my dIscretIOn under subsectIOn 48(16) of the LRA and extend the time for filmg the gnevance Umon counsel submItted that the dIscretIOn afforded by that subsectIOn should be exerCIsed as arbItrator Burkett suggested m Re Becker Milk Company Ltd. and Teamsters Umon, Local 647 (1978), 19 L.A.C (2d) 217 at 220- 221 The exerCIse of the eqUItable mscretIOn vested m an arbItrator under s. 37(5a) [now 48(16)] of the Act reqUITes a conSIderatIOn of at least three fac tors. These are (i) the reason for the delay gIVen by the offendmg party; (ii) the length of the delay; (ill) the nature of the gnevance If the offendmg party satIsfies an arbItrator, notwIthstanmng the delay, that It acted WIth - . 7 - due diligence, then u there has been no prejudIce the arbItrator should exer Clse hIS dIscretIon m favour of extendmg the trme-lllmts If, however, the of fendmg party has been neghgent or IS otherwise to blame for the delay, ei- ther m whole or m part, the arbItrator must nevertheless conSIder the sec ond and thIrd factors referred to above m decidmg u reasonable grounds ex 1St for an extensIOn of the trme-hrmts. In so far as Re Pamour Porcupme Mines Ltd. (Schumacher DWLswn) and US W (1976) 12 L.A. C (2d) 122 (Dunn), stands for the proposItIon that the only factor to be conSIdered IS the "reasonableness of the excuse" for the delay, I respectfully dIsagree. The purpose of the sectIOn IS to alleViate agamst techmcal bars. If the offendmg party gas been neghgent m ItS processmg of the gnevance but the delay has been of short duratIon an arbItrator would be permItted to rely on the short penod of delay as constItutmg reasonable grounds for an extenSIOn. If the gnevance mvolves the termmatIOn of an employee, as dIstmct from some lesser form of dIsclphne, thIS IS also an eqUItable consIderatIOn whIch must be taken mto account, m decldmg U there are reasonable grounds to extend the trme-mmts. One arbItrator has gone so far as to state that m a dIscharge gnevance, there would have to be a very clear case of unexcused, unreasonable delay and prejudIce to the employer before It would be proper to depnve the gnevor of the nght to a hearmg on the ments. (EmphaSIS added.) See Re Lmcoln Place NursLng Home and Sermce Employ ees Unwn, unreported, July 8, 1977 (Rayner) The term "reasonable grounds for the extenSIOn" as found m s.37(5a) of the Act IS not synonymous WIth the reasonableness of the excuse advanced by the offendmg party Havmg re- gard to the purpose of the sectIOn the term carnes a broader sIgmficatIOn whIch requIres the arbItrator to Weigh a number of factors, mcludmg but not necessarily restncted to those whICh have been set out above. Umon counsel also referred III argument to Re Toronto Western Hospaal and On- tano Nurses' Assoc~atwn (1983) 9 L.A.C (3d) 91 (Tephtsky), Re Corporatwn of the Cay of Toronto and Canad~an Unwn of Pubhc Employees, Local 43 (1983) 12 L.A.C (3d) 355 (Knopf), Be St Joseph's Hospaal, Guelph and Ontano Nurses' Assocwtwn (1984) 15 L.A.C (3d) 376 (Brent), Re Parhmg Authonty of Toronto and Canad~an Umon of Pubhc Employees, Local 43 (1990), 10 L.A.C (4th) 318 (Brandt), Re Peterborough Cw~c Hosp~tal and Canad~an Unwn of Pubhc Em- ployees, Local 19 (1990), 11 L.A.C (4th) 186 (EmrIch), Re Corporatwn of C~ty of Toronto and Canadwn Unwn of Pubhc Employees, Local 43 (1990) 17 L.A.C (4th) 420 (Sprmgate), Re Ferrant~ Pachard Transformers Ltd. and Umted Steel- worhers of Amenca, Local 5788 (1993) 36 L.A.C (4th) 307 (Haeflmg), Be Metro- pohtan L~censmg Comm~sswn and Canad~an Unwn of PublLC Employees, Local 79 (1995) 47 L.A.C (4th) 182 (Sprmgate), Queensway General Hospaal and On- -, I - 8 - tano Nurses' AssocLatwn (1996) 57 L.A.C (4th) 376 (Brent), and OBLEU (Aleong) and LCBO, 1318/96 (March 10, 1997, Gray) [15] Counsel for the umon submItted that there was no Identified prejUdICe to the employer, that whIle the umon may have been partly responsible for the de- lay from April to September 1996 there IS no suggestIOn of male fides on the un- IOn's part, and that even If the gnevor's explanatIOn for hIS delay IS not regarded . as "reasonable", the nature of the grievance should lead me to extend the time for fihng It despIte the length of the delay [16] Counsel for the employer observed that the preamble to the collective agreement and the provIsIOns of ArtIcle 27 make It clear that the parties consId ered time to be of the essence m raIsmg dIsputes for resolutIOn. He submItted that there was no subjective element to the test for tImehness m ArtIcle 27 7, that the ten day period clearly began to run under that artIcle when the grIevor was told hIS employment was termmated. He argued that there was reason to doubt the grIevor's explanatIOn, and mVIted me to draw an adverse mference from the fact that the umon dId not call eIther D B or Mr ChaykowskI to tes- tify He noted that none of the awards rehed upon by the umon mvolved rehev- mg a delay of 24 months He noted that delay m launchmg a grievance IS of more sIgmficance than delay at a later stage m the process, because the employer IS left WIthout notice of the need to mvestIgate and preserve eVIdence Re Greater Niagara General HospLtal and Ontarw Nurses' Assocwtwn (1981), 1 L.A.C (3d) 1 (SchIff) He cIted a number of awards m whIch grievances were dIsmIssed by rea- son of delays consIderably shorter than the delay here Re Corporatwn of the Cay of Toronto and Canadwn Unwn of PublLc Employees, Local 43 (1977) 16 L.A.C (2d) 355 (Abbott), Clements, 112/80 (February 23, 1981, Pritchard), Re Car- borundum Canada Inc., Niagara Falls and Umted Steelworkers, Local 4151 (1984), 16 L.A.C (3d) 432 (H D Brown), Re Corporatwn of CLty of Thunder Bay and CanadLan Unwn of PublLc Employees, Local 87 (1991) 20 L.A.C (4th) 361 (Charney), Re Bakery Glaco Inc. and Canadwn AutomobLle Workers (1991), 21 L.A.C (4th) 116 (O'Shea), Re MetropolLtan Separate School Board and CanadLan - I - 9 - Unwn of Pubhc Employees, Local 1280 (1992), 27 L.A.C (4th) 154, Re Ab~t~b~- Pnce, Inc. and Umted Paperworkers Internatwnal Unwn, Local 1375 (1993), 38 L.A.C (4th) 59 (RennIe) and Re Kitchener- Waterloo Hosp~tal and London & D~s- tnct Sermce Workers' Unwn, Local 220 (1994),44 L.A.C (4th) 293 (H. D Brown) Decision . [17] In Aleong, supra, the UnIon argued that the tIme lImIt prescribed m ArtI- cle 27 3(a) - "wIthm ten (10) days of the employee first becommg aware of the CIrcumstances gIvmg rIse to the complamt or dIfference" - mvolved a subJectIve element, and that the grIevor's knowledge of hIS rIghts and of the grIevance proc ess affected the applIcatIOn of the test. It relIed, as It does here, on the Board's decIsIOn m Gordon, supra. I found that that deCISIOn dId not assIst the grIevor m the cIrcumstances, because when he learned of hIS discharge he knew that he had the rIght to challenge It. The Gordon deCISIOn does not appear to me to say that the tune rnmt de- scribed m artIcle 27 3(a) runs only when the gnevor has a thorough, detailed understandmg of the gnevance process. In Gordon the gnevor was not aware that the nght on whIch she relIed had been added to the collectIve agreement until shortly before she made her complamt about earlIer events When he learned that the employer had purported to termmate hIS em ployment, the gnevor here already knew of the nght that he says that con travened. Indeed, he already knew that a contraventIOn was somethmg that could be the subject of a fight the umon would take up for hun. Accordmgly, the mterpretatIOn m Gordon does not aSSIst the gnevor I do not have to de- CIde whether the mterpretatIOn m Gordon IS correct, nor whether a ills- charge gnevance can be fIled at step 2 of the gnevance procedure. Assummg that the umon IS nght on both pomts thIs gnevance IS out of tune. That IS so, of course, whether the gnevor was actually aware of the applIcable tune rnmts or not. [18] For the same reasons, m thIS grIevor's case the tIme lImIt for filmg at step 2 under ArtIcle 27 3(a)(i) would have run from the tIme he knew he was dIS- mIssed, smce he clearly knew at that tIme that he had the rIght to challenge It by filmg a grIevance HIS grIevance was filed at step 3, though, whIch could only have been done pursuant to Article 27 7 That artIcle expressly reqUires that such a grIevance be filed "wIthm ten (10) days of the date of the dIsmIssal." Un der eIther article, then, Mr Gamble's grIevance was filed nearly two years after V"". ~ 10 - the deadhne Imposed by the partIes' collective agreement. Durmg that time the employer had no notice that the gnevor had any mtentIOn of challengmg hIS dIsmIssal. [19] By Ontano law, every collective agreement must prOVIde for the settle- ment by arbItratIOn of dIsputes about the mterpretatIOn, apphcatIOn, admmI- stratIon or alleged VIOlatIOn of ItS proVIsIOns s 48, LRA. The collective agree- . ment may, and usually does, prOVIde for a gnevance procedure, under whIch such dIsputes must be the subject of dIscussIOn wIth a VieW to settlement before they are referred to arbItratIOn. Even when the collective agreement contams no mandatory time hmIt for gIvmg notice of a dIspute so that It can be dealt wIth m the resolutIOn process prOVIded, the claImmg party's undue delay m gIvmg such notIce may lead an arbItrator or arbItratIOn board to declme to deal wIth the dIS- pute ThIS mvolves the exerCIse of a dIscretIOn SImIlar to the courts' apphcatIOn of the eqUItable doctrme of laches The exerCIse of that dIscretIOn turns largely on whether the claImmg party's delay has caused prejudIce to the respondent. see, generally, Brown and Beatty, Canadwn Labour ArbLtratwn (3d ed., Canada Law Book) ~2 3210 [20] Employers and trade umons often agree on speCIfic, mandatory time hm- ItS for filmg grievances under theIr collective agreements ThIS reflects WIde- spread understandmg that workplace dIsputes are best addressed as qUIckly as possible after they anse, and that the employer should be adVIsed promptly If ItS conduct IS regarded as contrary to the collectIve agreement (just as an employee or the trade umon should be adVIsed promptly when the employer consIders hIS, her or ItS conduct Improper) so that It can govern Itself accordmgly and mmImIze the consequences for Itself and others should the complamt be estabhshed Delay m raIsmg complamts for resolutIOn IS antithetical to labour relatIOns expecta tIons and accepted practIces [21] In some CIrcumstances, the strIct apphcatIOn of a one-sIze-fits-all time hmIt would seem unfaIr, and a hmItatIOn prOVISIOn that seemed to cause unfaIr ness mIght do more harm than good to labour relatIOns Unless the partIes have - I 11 expressly excluded Its applIcatIOn, subsectIOn 48(16) of the Labour Relatwns Act affords arbItrators the power to extend collective agreement time lImIts m the gnevance process, mcludmg agreed upon time lImIts for filmg gnevances The arbItrator or arbItratIOn board may only exerCIse that power, however, If satIs fied of two thIngs. that there are reasonable grounds for the extensIOn and that the OppOSIte party WIll not be substantially preJudIced by the extenSIOn. . [22] There are two schools of thought about what may constitute "reasonable grounds" for extenSIOn. Some arbItrators have saId that to establIsh "reasonable grounds" the umon must establIsh a reasonable explanatIOn for the defaultmg party's non-complIance WIth the time lImIt, that the cause of the delay was be- yond the defaultmg party's control and not due to that party's faIlure to exerCIse due dIlIgence Re Corporatwn of the C~ty of Toronto (Abbott), supra, at 127, Re Carborundum Canada Inc, supra, at 439 Others, mcludmg thIS arbItrator, take the VIew expressed by arbItrator Burkett m the above-quoted passage from Re Becker Milk Co Ltd, that whIle the reasonableness of the excuse for the delay IS an Important conSIderatIOn, the nature of the gnevance and the length of the delay must also be conSIdered m assessmg whether there are reasonable grounds for extenSIOn. Adoptmg that VIew, Professor SchIff offered an expanded lIst of conSIderatIOns m Re Greater Niagara General Hosp~tal, supra. the nature of the gnevance, whether the delay occurred m mltIally launchmg the gnevance or at a later stage, whether the gnevor was responSIble for the delay, the reasons for the delay, the length of the delay and whether the employer could reasonably have assumed the gnevance had been abandoned [23] However one describes the consIderatIOns, on thIs VIew of the "reasonable grounds" reqUirement an extensIOn to permIt a gnevance to proceed concermng a senous and Important matter, such as a dIscharge, may not be precluded when the defaultmg party's excuse for delay IS not Itself reasonable In that event, however, the length of the delay and other delay related conSIderatIOns become cntlcal m assessmg whether there are reasonable grounds for an extenSIOn. I shall return to the Issue of delay after consldermg the gnevor's excuse here _. - 12 - [24] The grIevor knew from the outset that hIS dIsmIssal could be grIeved, and that grIevmg had to be done through the umon. He says that the lawyer that he first retamed to represent hIm m related crImmal proceedmgs told hIm not to grieve or speak wIth the umon, and explamed to hIm that If he beat the crImmal charges he could get hIS Job back even If he had not grieved. He dId not check thIS latter pomt wIth the umon at the time, nor wIth the employer for that matter WhIle hIS havmg blmdly accepted that lawyer's advIce may not be partIcularly surprIsmg durmg the time the lawyer was actmg for hIm, It IS peculIar that the grIevor dId not revIsIt that deCISIOn and check that advIce when he lost confi- dence m and fired the lawyer Several months passed after he dId that before hIS new lawyer raIsed the Issue WIth hIm and advIsed hIm to file a grievance, and It was several more months after that before a grievance was filed In any event, the grIevor selected the first lawyer and chose to follow that lawyer's advIce It IS therefore dIfficult to characterIze the cause of the first 18 or 19 months' delay as havmg been beyond the grIevor's control. If I accept the grIevor's explanatIOn for that period as true, It establIshes only that the grIevor dId not deliberately flout the applIcable time lImIt or deCIde to abandon any claIm to remstatement he mIght have had, eIther of whIch would have warranted refusmg an extensIOn for even a modest delay The explanatIOn does not excuse the delay m any other relevant sense, however SImIlarly, whIle there IS no eVIdence of bad faIth on the part of the umon after the grIevor finally requested that It file a grievance, such explanatIOn as there IS for the last 5 or 6 months' delay after It was contacted does not excuse that period of delay Accordmgly, the length and effect of the delay are crUCial conSIderatIOns m determmmg whether to grant an extensIOn under subsectIOn 48(16) of the LRA. [25] The effect of delay may be that the OppOSIte party would suffer substan- tial prejUdICe If an extensIOn were granted PrejUdICe caused by delay IS some- times eaSIly Identified A wItness who would have been avaIlable for an ensumg arbItratIOn hearmg had the gnevance been filed m a timely way may have smce dIed or become mcapacItated or otherwIse unavaIlable to testIfy Documents that the respondent would have preserved had It known of a dIspute to whIch they ~- - 13 were relevant may have been destroyed m the ordmary course of busmess, or lost. Other actIOns may have been taken that demonstrably would not have been taken had the dIspute been asserted m a tImely way, and whIch may now be to the respondent's detriment If the dIspute IS allowed to proceed Here, there IS no Identifiable element of specIfic prejUdICe resultmg from the delay' no demonstra- bly needed wItness who has dIed or otherwIse become unavaIlable m the mean- time, no arguably relevant document that has been destroyed or lost. [26] The prejUdICe caused by delay may also be more subtle and, by ItS nature, dIfficult to demonstrate. The memOries of wItnesses who are still avaIlable wIll nevertheless have faded, partIcularly If there has been no notice that they may have to testify about those memOries. As a result, theIr testimony may be or may seem less rehable, and thence less persuaSIve, than It would have If there had been timely notice of the dIspute Those now concerned wIth the dIspute may not be able to determme what testImony or documents would have been dIscovered and preserved earher, had there been timely notice of the dIspute They may not know what statements would have been gIven at the time by those wItnesses whom they can now Identify, nor what mIght have been found m documents known to have eXIsted then that have smce been destroyed. Indeed, they may not now know of or dIscover helpful wItnesses or relevant documents whose eXIstence would have been dIscovered had timely assertIOn of the dIspute triggered an ear her search for them. It IS m the nature of these forms of prejUdICe that theIr pre- CIse effects and perhaps even theIr eXIstence m a partIcular case cannot be dem onstrated. [27] It must be remembered that subsectIOn 48(16) of the LRA IdentIfies the eXIstence of reasonable grounds for an extenSIOn IS a questIOn dlstmct from whether the OppOSIte party would suffer substantial prejUdICe If an extenSIOn were granted. A defaultmg party who lacks a reasonable excuse for delay cannot claIm the benefit of the more liberal VIew of the reasonable grounds test, whIch treats the length of the delay as a dlstmct conSIderatIOn m assessmg reasonable grounds, and then mVlte the arbItrator or arbItratIOn board to Ignore the delay ~---:- - 14 because It has not resulted m specIfic, demonstrable preJudIce to the OpposIte party's abIlIty to defend ItS posItIOn If the grIevance IS allowed to proceed. [28] The possibIlIty that delay may have had more subtle preJudIcIal effects, effects that may not be detectable or demonstrable, IS one reason why the length of the delay IS an approprIate consIderatIOn m assessmg whether there are "rea sonable grounds" for an extensIOn, even when the respondent cannot demon- . strate actual preJudIce. Another reason why delay should be treated as a consId- eratIOn mdependent of any demonstrable preJudIcIal effect IS respect for the bar- gam the partIes have struck. The partIes here have agreed that a dIscharge grIevance must be filed wIthm 10 days They made theIr mtentIOn that thIS be mandatory clear by theIr further agreement that grIevances not processed wIthm the tIme prescribed are deemed to have been wIthdrawn. Of course, they dId tills m the shadow of subsectIOn 48(16) of the LRA, the applIcatIOn of whIch they could have precluded but dId not. There IS nothmg m the subsectIOn, however, that suggests that arbItrators are to entIrely Ignore partIes' agreement to specIfic tIme lImIts as a consIderatIOn m exercIsmg the power conferred, or that they are to proceed as though they were sImply exercIsmg the dIscretIOn to dIsmIss for delay that they could have exercIsed If there had been no such agreement. [29] Even when the OpposIte party cannot demonstrate substantIal consequent preJudIce, delay that IS due to lack of due dIlIgence on the part of the grIevor or someone actmg on hIS or her behalf can be so extreme that the Importance of a dIscharge grIevance wIll not be sufficIent basIs for usmg the power m subsectIOn 48(16) of the LRA to overrIde agreed-upon tIme lImIts for filmg a grIevance The delay here was that extreme Indeed, the delay from the date of dIscharge untIl AprIl 1996, when the grIevor says he first contacted the umon on the advIce of hIS second lawyers, was that extreme Most of the deCISIOns relIed upon by the umon mvolved delays of several weeks or a few months One relIeves agaInst 7 months' delay (Re Corporatwn of the C~ty of Toronto (Spnngate), supra), one re- lIeves agamst a delay of 13 months (Re Ferrant~ Packard Transformers Ltd., su- pra) DespIte the Importance of a dIscharge grIevance to someone wIth thIS ~ 15 grIevor's length of servIce, I am not persuaded that there are reasonable grounds to relIeve agaInst the delay of nearly 24 months here nor, I would add, that there would have been reasonable grounds to relIeve agaInst a roughly 19 month delay from September 1994 to AprIl 1996 If thIS grIevance had been filed at that time. [30] I am reInforced In these conclusIOns by the award of Vice-ChaIr Knopf In OLBEU (Wicken) and LeBO, 2216/97, whIch was released after tills matter was . argued (The deCISIOn was brought to my attentIOn by employer counsel, who gave notIce to umon counsel that he had done so) There, a part-time employee WIth less semorIty than the gnevor here had been dIscharged on the baSIS of al- legatIOns of mIsconduct that were also the subject of cnmInal charges Vice-ChaIr Knopf accepted the grIevor's testimony that shortly after the dIscharge someone at the umon had told hIm, Incorrectly, that It could not file a gnevance on hIS be- half, and that two dIfferent lawyers had thereafter told hIm that he should first clear hImself of the crImInal charges and thereafter take CIVIl proceedIngs WIth respect to hIS dIscharge The gnevance had been filed soon after the crImInal charges were WIthdrawn by the Crown, roughly 16Y2 months after the dIscharge Vice-ChaIr Knopf also accepted also that there was no specIfic, demonstrable prejudIce to the employer that could not be repaIred by lImItIng the remedy and by the umon's agreement that the absence of certam documents should not weIgh agamst the employer Nevertheless, VIce-Chair Knopf found that the de- lay was too great, that there were not reasonable grounds for an extensIOn of that magmtude under subsectIOn 48(16) of the LRA. [31] LIkewIse, I find that the delay here IS SImply too great, that thIS IS not a proper case for relIef under subsectIOn 48(16) of the Labour Relatwns Act The grIevance IS therefore dIsmIssed as untimely Dated at Toronto this lit day of September, 1998 ~v: