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HomeMy WebLinkAbout2016-2532.Pozderka.21-03-09 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# 2016-2532 UNION# 2016-0536-0003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Pozderka) Union - and - The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE Deborah Leighton Arbitrator FOR THE UNION Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Andrew Lynes Treasury Board Secretariat Legal Services Branch Counsel HEARING February 13, 2020 and September 3, 2020 -2- DECISION [1] There are seven grievances before me alleging, inter alia, that multiple disciplines, and ultimately the termination of the grievor’s employment are without just cause. This decision addresses the issue of timeliness of one of those grievances. The employer issued a five-day suspension to the grievor on May 14, 2015. He grieved the discipline on June 12, 2015. The grievance was not referred to arbitration until some eighteen months later, on February 19, 2017. The employer moves that the grievance should be dismissed as untimely. The union urges me to exercise my discretion to extend the time required for advancing a grievance to arbitration and order that the matter should be heard. [2] The hearing proceeded with documentary evidence and oral argument. Counsel for the employer argued that although the Board has the discretion to extend time limits under Article 22.6.1, I should not exercise it here because the referral to arbitration is simply too late, having been referred to the Board 18 months after the grievance should have been forwarded. Counsel argued that there is no issue about whether the grievor was aware of his rights to file a grievance for discipline. He was familiar with the grievance procedure. The grievor had previously filed a grievance in 2014 that was heard and decided by the Board in 2016. (GSB 2014-4953) Counsel emphasized that even when the grievor became a president of the local union in 2016, the grievance was still not referred to arbitration. [3] In counsel’s submission, the only reason given by the union for the delay in referring the grievance to the Board was that the grievor was trying to resolve the matter without an arbitration. Even considering this reason, when the employer advised the grievor in June 2016 that the investigation into the underlying incident was closed and the employer was of the view that the grievance had been abandoned, the grievance was not referred to the Board for a further seven and a half months. -3- [4] Counsel argued that there are three factors to be considered by the Board in exercising its discretion to extend the time limit for referral to arbitration: the length of the delay, the reason for it and the importance of the grievance. Counsel relied on the following cases: OPSEU (Chu) and MCSS, 2016 Canlii 76530 (ON GSB): OPSEU (Nedai) and MAG, 2016 Canlii 59601(ON GSB); OPSEU (Johnson) and MAG, 2011 Canlii 60319 (ON GSB); Clayton, et al and MCSCS, 2000 Canlii 20359 (ON PSGB). [5] Counsel for the union argued that the initial grievance and the emails provided between the grievor and the employer after the discipline was issued on May 14, 2015, showed that the grievor disagreed with the discipline. The emails establish that the grievor was trying to resolve the matter through negotiations with the employer. He emphasized that in the grievor’s mind the discipline was for an incident with another employee that he considered a misunderstanding. The employer’s proposed Minutes of Settlement in November 2015 proves that a negotiation to settle the matter was occurring at this point. [6] Thus, counsel submitted that it was clear that the grievor’s goal was not to go to the Board for a full hearing. Thus, there was reason for the delay. Some of the emails also indicate that the grievor was concerned about the delay in resolving the matter. The grievor also thought that there was a connection between the employer’s investigation and a response to the stage two grievance meeting, and even when he was advised in June 2016 that the employer considered the grievance abandoned, he did not refer the matter to arbitration. However, once the grievor received the eight-day discipline issued on November 29, 2016, he filed a grievance for that discipline on January 13, 2017 and several weeks later he filed the grievance at issue here, on February 19, 2017. [7] Counsel for the union agreed with the test to be applied in exercising the discretion to extend time limits for a late referred grievance. He emphasized that the delay was not at the very beginning the grievance procedure, which has been considered a more problematic delay by the Board, than an untimely referral to -4- arbitration. The evidence shows that the employer knew that the grievor contested the discipline. [8] Counsel argued further that the nature of the grievance in this case being a five- day suspension, which the employer was relying on in part when it made its decision to issue an eight-day suspension should be considered in exercising my discretion to extend the time for referral. Discipline grievances are of serious import to a grievor. Given the potential impact on the grievor here, counsel argued that the employer must demonstrate actual prejudice in proceeding with its case. Counsel relied on the following cases: Becker Milk Co. v. Teamsters, (1978) 19 L.A.C. (2d) 217 (Burkett); Greater Niagara General Hospital v. ONA, (1981)1 L.A.C. (3d) 1 (Schiff); OPSEU (Robbins) and LCBO, (GSB 2013-0526) (Lynk); OPSEU (Clark) and MNRF (GSB 2018-0037, et al) (Dissanayake). Decision [9] The issue before me is whether to exercise my discretion to extend the time limits required by the collective agreement to allow the five-day discipline grievance to heard. The parties agree, and decisions of the Board establish that Article 22.14.7 of the Collective Agreement provides the Board with the discretion under section 48(16) of the Ontario Labour relations Act (OLRA) to extend time limits in the grievance and arbitration process of the collective agreement. CHU, supra. Article 22.14.7 provides as follows: Notwithstanding article 22.14.6 the GSB has the jurisdiction to apply section 48(16) Of the Ontario Labour relations act to extend the timeliness specified in the collective agreement at all stages of the grievance and arbitration processes. Section 48(16) of the OLRA provides as follows: 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 the collective agreement, despite the expiration of the time, where the arbitrator or arbitration Board -5- is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension. [10] The Chu decision held that “the effect of this provision is that a time limit can be extended if the arbitrator is satisfied that there are reasonable grounds for the extension and that such an extension will not substantially prejudice the opposite party.” The Board here also referred to the well-established case law on the factors that arbitrators must consider and weigh in deciding if the delay is reasonable and not prejudicial to the opposing party, citing both Becker Milk, supra, and Greater Niagara, supra. As established in these leading cases and as agreed to by the parties before me, the key factors are the reason for delay, its length, and the nature of the grievance. The factors to be considered were further elaborated in Greater Niagara, supra, as follows: the nature of the grievance; whether the delay occurred in launching the grievance or at a later stage; whether the grievor was responsible for the delay; the reason for the delay; the length of the delay; whether the employer could reasonably have assumed the grievance had been abandoned. [11] Each case must be decided on its own facts. In this case there is no question that a delay of 18 months is significant. The parties to this collective agreement have agreed that complaints or differences between them shall be addressed as quickly as possible. Once a grievance is filed there is an obligation on management to hold a meeting with the employee within 15 days of the receipt of the complaint and a decision must be made within seven days of that meeting, copied to a union steward. Article 22.6.1 provides that if the grievor is not satisfied with the decision made by management regarding the grievance or “does not receive the decision within the specified time, the grievor may apply through the union to the Grievance Settlement Board (GSB) for a hearing of the grievance within 15 days of the date he or she received the decision or within 15 days of the specified time limit for receiving the decision.” (emphasis added) Therefore, the grievor has no obligation to wait for the employer’s response to a stage two meeting on the grievance. In fact, it is incumbent on the union and grievors to preserve their rights and be diligent in referring the matter to -6- arbitration, even if no stage 2 meeting has been held. Thus, in the case here, the length of the delay is a compelling factor in denying the discretion to extend the time limit. [12] The reason for the delay is that the grievor believed that the five-day suspension was meted out because of a misunderstanding between himself and another employee and was trying to clear up the confusion and settle the grievance. The union submitted that the discussions between the parties led to the Ministry offering Minutes of Settlement in November 2015. There is no evidence of a response by the union to that offer, or of additional negotiations. There was no evidence of an agreement between the parties to suspend the time requirements for referring the grievance, while negotiations were pursued. The reason given for the grievor’s delay thus ended somewhere around November 2015. There was no reason for the delay offered or argued after this point. [13] However, the delay continued for another seven months until the grievor was clearly advised in June 2016 that the employer considered the grievance abandoned. The grievance was then approximately 11 months late. And still the grievance was not referred for another seven and a half months. Thus, the only reason for the eighteen-month delay in referring this grievance to arbitration is for only part of the delay and is weak. [14] The nature of the grievance is serious since it grieves a five-day suspension. The grievance is of even more serious import to the grievor because the employer relied on it to issue further progressive discipline, which ultimately resulted in the grievor’s dismissal from employment. However, I should observe here that the Board has rejected the idea that if the late grievance is part of progressive discipline leading to dismissal, this alone should not excuse the lateness. See Chu, as an example. [15] In considering the seriousness of the grievance in the context of length and reason for the delay, Robbins, supra, is helpful. In Robbins, the delay of three and a half -7- months filing a grievance on the 15-day suspension was balanced against the fact that the grievor was not responsible for the delay and had little or no experience with the grievance procedure. In coming to his decision to allow the grievance to proceed, Vice-Chair Lynk referred to MCSCS and OPSEU (McClelland) a decision of Vice-Chair Briggs involving a three-day suspension that was also three and a half months late. In this case, as in the case before me, the grievor was subsequently dismissed. Vice-Chair Briggs did not accept the reason for the delay and dismissed the motion to extend the time limit for filing the initial grievance. Vice-Chair Lynk distinguished McClelland from the case before him noting as follows: McClelland is distinguishable from our case because the length of the suspension was considerably smaller, and the grievor who bore primary responsibility for the delay, had previously filed six grievances and was very familiar with the grievance process. (Para. 41) [16] The facts in McClelland are like those before me, both in the serious nature of the grievance and the weak reasons for the delay. The grievor before me is responsible for the delay. He was aware of his rights and the procedure for grieving. Yet he did not refer it to arbitration for 18 months. He did not refer it to arbitration until over four weeks after he had filed a grievance for a subsequent eight-day suspension. The Board in McClelland dismissed the motion to extend based on these factors and a delay of three and a half months. What is clearly different in the case before me is that the delay of 18 months is significantly longer. Even though this is a serious grievance, I am of the view that the extreme delay and the lack of a reason for the delay lead to the conclusion that I should not exercise my discretion to extend the time for the referral to arbitration. [17] One last point needs to be addressed. The union argued that the employer must show prejudice to justify the denial of an extension of a time limit in the collective agreement in such a serious grievance. Vice-chair Lynk in Robbins, citing arbitrator Burkett in Vale Inco Ltd., stated that “all other factors and considerations being equal, a real prejudice should have to be shown by the employer in order to justify the denial of a time extension where the time limit -8- breach involved a relatively short or moderate period of time”. (Para. 41) I agree with this reasoning and if the delay here was moderate not 18 months, my decision might be different. However, the evidence pertaining to this grievance goes back to events in 2015. Such a delay is simply too long and is inherently prejudicial. [18] Consequently, having considered the evidence and submissions before me, and for the reasons above, I hereby grant the employer’s motion and dismiss the grievance. Dated at Toronto, Ontario this 9th day of March, 2021. “Deborah Leighton” ______________________ Deborah Leighton, Arbitrator