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HomeMy WebLinkAboutReyes 08-08-20 1 IN THE MATTER OF AN ARBITRATION Pursuant to the Labour Relations Act, R.S. 1995 BETWEEN: INTERIM PLACE “Employer” - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (OPSEU), Local 518 “Union” (Individual grievances of L. Reyes 2012-0518-0004/2014-0518-0014) PRELIMINARY DECISION (re Timeliness) ARBITRATOR: Kim Bernhardt On Behalf of the Employer: Sydney Kruth, Counsel, Mathews Dinsdale & Clark LLP On Behalf of the Union: Jane Letton, Counsel, Ryder Wright Blair & Holmes LLP Heard in Toronto on August 16, 2018 2 1. The Union filed two grievances on behalf of Ms. Reyes (the “Grievor”), one on August 3, 2012, and the second on July 19, 2014. In March 2016 the Union notified the Employer that they were forwarding the grievances on to arbitration. The Employer takes the position that the Union missed the Collective Agreement’s mandatory time limits for submitting the grievances to arbitration and that an arbitrator lacked the power to extend the time limits outlined in the arbitration procedure. 2. For the reasons outlined below the Employer’s preliminary objection is upheld and the grievances are dismissed. FACTUAL BACKGROUND The parties are in general agreement about the facts, other than as otherwise noted. 3. The first grievance was filed on August 3, 2012 and alleged that the Employer had fostered a poisoned work environment, failed to provide for the Grievor’s health and safety, and inadequately addressed the Grievor’s concerns about being bullied. According to the grievance these actions were in violation of Articles 5) (Discrimination, Harassment and Bullying), 4) (Management Rights), and 30) (Health and Safety) of the Collective Agreement (C/A) as well as Bill 168 (the Occupational Health & Safety Act; OHSA), and “human rights” (presumably a reference to the Human Rights Code of Ontario; the Code). 4. The Employer provided a written response to this grievance on August 10, 2012 stating that the grievance did not cite a violation of an article under the C/A but rather should be brought forth under the organization’s Workplace Violence and Harassment Prevention Policy (the Policy) and provided information regarding the filing of a complaint under the Policy. No further steps were taken in the grievance procedure by the Union until March 2016 when the Union informed the Employer that this grievance was being moved forward to arbitration (along with the second grievance of July 19, 2014). 5. After receiving the Employer’s August 10, 2012 response, the Grievor left the workplace on a medical Leave of Absence, returning sometime in 2014, prior to mid-July 2014. 3 6. The second grievance was filed on July 19, 2014, again citing violations of Bill 168 (OHSA) and violations of Articles 4, 5, 30 of the C/A (as referenced above in paragraph 3), as well as Article 10 (Discipline and Discharge). The grievance alleges that the Employer’s actions of making misleading and untrue statements about the Grievor’s work performance negatively impacted her in the workplace and caused her great anguish. 7. During the July 25, 2014 Step 1 meeting the grievance was denied, soon after which the Grievor again left the workplace on a medical leave of absence (LOA). In August 2014 the Union contacted the Employer and requested confirmation in writing that the grievance proceedings could be postponed until the Grievor returned from her medical LOA. 8. The Employer responded to this request in an email on August 7, 2014 stating that as the medical documentation said that the Grievor would be off work until August 11, they could “postpone her grievance until Tuesday, August 12. Any further extensions would need to be negotiated”. 9. As with the 2012 grievance, no further steps were taken in the grievance procedure by the Union until March 2016 when the Union informed the Employer that both grievances were being moved forward to arbitration. On March 28, 2016 the Employer responded in writing to the Union and stated that the Employer’s position was that the grievances are untimely and that an arbitrator lacked the jurisdiction to deal with these matters. 10. The parties consented to me hearing this matter, subject to the Employer’s reserving their right to argue that the grievances were untimely, which the parties agreed was the only issue to be addressed at the hearing on August 16, 2018. The parties proceeded by way of documentary evidence and argument; no witnesses were called. Employer’s Argument 11. The Employer submits that the Union failed to meet the time limits cited in the C/A which are mandatory and that any discretion that might have been granted to an arbitrator under the Labour Relations Act,1995 (LRA or Act) was also prohibited by operation of the Act under the C/A provisions. 4 12. The Employer cites the provisions under Article 9 of the C/A in support of its position: “Time Limits 9.04 The time limits fixed in this Article are mandatory but may be extended by the mutual consent of both parties in writing. 9.05 If any step of the grievance procedure has not been processed by the Agency within the time limits as prescribed herein, the grievance shall automatically be advanced to the next step. Should the Union fail to process the grievance, or file for Arbitration within the time limits prescribed herein, the grievance shall be deemed to have been abandoned and Section 48, subsection 16 of the Ontario Labour Relations Act shall not apply.” Emphasis was added in Employer’s submission. 13. The Employer argues that in contravention of the requirements to proceed to Step 2 of the grievance procedure under Article 9.01 the Grievor (and the Union) failed to submit her grievance in writing to the Executive Director (or her designate) within 10 days of receiving the response from the manager under Step 1 (when the matter was brought to her manager’s attention), and failed to notify the Employer in writing within 10 days of the Agency’s decision that the matter was being forwarded to arbitration, as was required under Article 11. Instead, the first grievance was referred directly to arbitration approximately three years and 8 months later, and the second grievance was referred approximately one year and 8 months later. 14. Because of the Union’s breach of the mandatory time limits, the Employer viewed the two grievances as having been abandoned. Furthermore, the Employer states that Articles 9.04 and 9.05 (cited above at paragraph 12) not only establish that the time limits are mandatory, but also that there is no authority for an arbitrator to exercise their discretion to alter the time limits under Section 48, subsection 16 of the OLRA. 15. Section 48, subsection 16 reads as follows: “Extension of time (16) 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 5 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.” The Employer points out that this provision only gives an arbitrator discretion to extend the time limits for the grievance procedure, not extending time limits for referring a matter to arbitration (as had been allowed in previous versions of the Act). As Article 9.05 specifically states that this provision of the OLRA does not apply, these grievances should be deemed to have been abandoned. Only the parties could agree to extend the time limits, which was not done, and the arbitrator lacks any authority to amend the mandatory time limits 16. The Employer relied upon two decisions in support of their argument. Following the courts’ decisions in S.E.I.U., Local 204 v. Leisureworld Nursing Homes Ltd., 1997 CarswellOnt 830, [1997] O.J. No. 1469, affirmed December 1, 1997, CA C27655 (Ont. C.A.) [Leisureworld] the Employer argues that the courts confirm that arbitrators have no jurisdiction to extend the time limit for referral to arbitration. 17. The Employer also relied upon Arbitrator Hunter’s decision in Service Employees Union, Local 210 v. Canadian Red Cross Society (Union Dues Grievance), [2000] O.L.A.A. No. 111 [Red Cross], at paragraph 20, for the proposition that under similar C/A language as the current one, the parties, but not the arbitrator, are authorized to extend, in writing, the time limits in the grievance procedure and/or referral to arbitration. 18. In response to the Union’s argument that fairness required that the grievances be allowed to proceed, the Employer argues that in light of the length of the delay, it would not be fair to proceed when so much time has elapsed, which has prejudiced the Employer’s ability to respond. Union’s Argument 19. The Union does not dispute the facts or timelines and confirms that they have no further documents to provide about the process followed for the grievances or referral to arbitration. 20. The Union stipulated that it was the Grievor’s understanding that the Union was handling the grievance process while the Grievor was absent 6 from the workplace on her medical LOA, and speculates that it was possible that the Union was trying not to interrupt the Grievor while she was on her medical LOA. 21. Although the Union did not call any witnesses to testify, they argue that it was obvious that the Union representative at that time believed that the grievances had been held in abeyance, as evidenced by the March 2016 email correspondence between the Union and the Employer. During the course of the correspondence the Union notifie d the Employer that “there were two grievances held in abeyance” that the Grievor indicated she wanted to move forward to arbitration. 22. The Union does not dispute that the C/A requires the parties to agree in writing to waive mandatory time limits, and that there is no evidence of such a written agreement. 23. The Union asks that I consider the nature of the Grievor’s concerns and in the interest of fairness find that the grievances are arbitrable. The grievances allege that the Grievor was subject to a poisoned work environment, bullied, and subjected to breaches of the OHSA and the Code. As a result, the Union argues that the grievances are serious and go to the core of being an employee entitled to being treated with dignity in the workplace. 24. The Union observes that the Grievor’s illness is tied to her workplace concerns and the reason why she was unable to move the grievances forward. The Grievor has been unable to work since July 2014 and the Union argues that justice requires that she should have a determination of the issues that have made her so ill. ANALYSIS 25. There is no dispute that the time limits for referring grievances to arbitration under Articles 9 and 11 of the C/A are mandatory. Nor is there any dispute that these time limits were not adhered to for either of these grievances. 26. Despite any understanding that the Grievor or her Union Representative might have had that there was an agreement with the Employer to hold 7 the grievances in abeyance until the Grievor returned from her medical LOA, there was no evidence of any such agreement, never mind evidence of a written mutual agreement, as is required under Article 9. 27. Under Article 9 the consequence for failing to process the grievances or file for Arbitration within the time limits is that the grievances are deemed to have been abandoned. 28. Only the parties are able to extend the time limits; an arbitrator cannot due to Article 9 which ousts any discretion that an arbitrator might have under s. 48 (16) of the OLRA. Simply put, I do not have the authority to waive the mandatory time limits. 29. The Union asked that I consider the fairness of not proceeding with grievances that raise important workplace issues, but I am not able to take such factors into consideration as I lack jurisdiction to exercise any discretion under this C/A and the OLRA. I am also bound by the courts’ decisions in the Leisureworld case that I lack the power to extend time limits for steps in the arbitration procedure. DECISION 30. I do not have the authority to change the time limits, they were breached, there was no mutual agreement to extend them, and as determined by Article 9 these grievances were abandoned and cannot proceed. Issued this 20th day of August 2018 in Oakville, Ontario by ___________________________ Kim S. Bernhardt, Sole Arbitrator