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Employer 10-04-14
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Professor Hofer responded by indicating that while he had not been given any registration documentation, he did offer to provide proof of payment for the course. 3. February 11, 2007 - The College asked Professor Hofer to confirm that he was not enrolled in the University of Windsor's MBA Program. He responded by writing that the '''Mini MBA'" program "mirrors the Executive MBA in content." Further, he asserted that his agreement with the College for the PD Leave was not conditional upon his enrolment in an Executive MBA program. 4. February 13, 2008 - As a result of a telephone inquiry to the University of Windsor, the College was advised that the "Mini MBA" is a "workshop series" offered to give students a "taste of an MBA" program, delivered as nine modules, offered once a month, over a nine-month period. Upon completion, students receive a "certificate of completion". The University of Windsor described the "Mini MBA" as being "not academically rigorous enough to be considered equivalent to the 1 st year of the Executive MBA program." 5. February 19, 2008 - In response to an inquiry from the College, the University of Windsor wrote that its 'Mini MBA' is not equivalent to one year of its "Weekend MBA". It described the 'Mini MBA' as a "professional development workshop" and as "not credit worthy" for purposes of establishing advance standing in an MBA program. 6. February 29, 2009 - Professor Hofer submitted a "Report" regarding his PD Leave to the College President and the Chair of the Tuition Assistance and PD Committee.3 Professor Hofer reported that he had enrolled in the 'Mini MBA' Program at the University of Windsor. He said: "The course and modules mirror the content in the Executive MBA program offered at the University of Windsor." He added that many of the modules were taught by the faculty from the MBA program. He also reported that the courses had given him "a better understanding of managing people, marketing, accounting, leadership and organizational change." In addition, he described his other achievements and undertakings during the period of his Leave. 7. March 11, 2008 - The PD Leave Committee wrote to the President of the College and the Department of Human Resources indicating its view that Professor Hofer's PD Leave had been granted on the basis that he would undertake a number of things, one of which had been that he would enrol in the University of Windsor's MBA program. The Committee noted that although the Professor had gained "useful knowledge" during his leave from his product development work, it had concluded that he had "not 3 Hereinafter referred to as the PD Leave Committee. 3 honoured the commitment ... to enrol in the University of Windsor MBA program." The Committee noted that the Professor had been granted extensions from the original enrolment dates and then enrolled in a program that was not approved by his supervisor or the Committee and "did not satisfy the requirement of obtaining the educational credentials needed for teaching in the degree program." The Committee then recommended that the College withdraw financial support for Professor Hofer's PD Leave. 8. March 17,2008 - The College supplied Professor Hofer with a copy of the PD Leave Committee's Report and recommendations dated March 11, 2008 (see para. 7 above.) 9. March 19,2008 - A meeting was held with Professor Hofer, a Union representative, the Executive Director of Human Resources and others. At this time, Professor Hofer was told of the Committee's recommendation to withdraw financial support for his Professional Development leave because of his failure to enrol in the University of Windsor's MBA program. Professor Hofer indicated his concern that he had not been given an opportunity to meet with the PD Leave Committee before it had made its recommendation. It was then agreed that a meeting would be convened to give him a chance to address that Committee. The College also advised that it would make a determination about the resolution of the matter only after Professor Hofer had met with the Committee and it had the chance to consider his submissions. That meeting was scheduled for May 2,2008. 10. April 14, 2008 - Professor Hofer wrote to the College indicating that he was withdrawing his request to meet with the PD Leave Committee. 11.April 21, 2008 - The College wrote to Professor Hofer: "Since you've elected not to proceed with the meeting originally set up, unless you have any further information for the College's consideration related to this matter, the College is demanding repayment of $70,324.27." The College asked for full repayment by April 30, 2008, or he was invited to provide a schedule of payments that would be deducted from his monthly pay. There is no record of any response to this letter. 12. May 1,2008 - The College filed a grievance seeking "repayment of monies paid" under the Professional Leave provisions (Article 20) of the Collective Agreement, totalling $70,324.27. 13. May 15, 2008 - The Union responded to the grievance, disputing the claim. 4 14. May 20,2008 - The College wrote to the Union, indicating that it was "not satisfied with OPSEU's response" to the grievance, and said: ". . . we are therefore requesting that the matter be referred to arbitration." 15. October 15, 2008 - The Executive Director of H R for the College wrote to the College Compensation and Appointments Council attaching the May 20th letter to OPSEU [see para. 14 above] and saying, "I neglected to send it to the Council, so I realize that nothing has happened with it to date. Can you please get it on the list. . . in order that it be scheduled." 16.0ctober 27,2008 - The College's grievance was scheduled for arbitration on March 10,2009, and the College's nominee was named. 17. February 27, 2009 - OPSEU's Grievance Officer advised in writing that it would be making preliminary objections regarding timeliness and arbitrability of the College's grievance at the upcoming March 10th hearing. The relevant provisions of the Collective Agreement are: Grievances 32.02 Failing settlement of a complaint, it shall be taken up as a grievance (if it falls within the definition under 32.11 C) in the following manner and sequence provided it is presented within seven days of the immediate supervisor's reply to the complaint. It is the intention of the parties that reasons supporting the grievance and for its referral to a succeeding Step be set out in the grievance and on the document referring it to the next Step. Similarly, the College's written decisions at each step shall contain reasons supporting the decision. Step One An employee shall present a signed grievance in writing to the employee's immediate supervisor setting forth the nature of the grievance, the surrounding circumstances and the remedy sought. The immediate supervisor shall arrange a meeting within seven days of the receipt of the grievance at which the employee, a Union Steward designated by the Union Local, if the Union Local so requests, the immediate supervisor and the supervisor of that person shall attend and discuss the grievance. If a Human Resources representative is to attend, the Union Local will be given the option of having an additional Union representative present. The immediate supervisor and the supervisor of that person will give the grievor and the Union Steward their decision in writing within seven days following the meeting. If the grievor is not satisfied with the decision, the grievor shall present the grievance in writing at Step Two within 15 days of the day the grievor received such decision. 5 Step Two The grievor shall present the grievance to the College President or the President's designee. The College President or the President's designee shall convene a meeting concerning the grievance, at which the grievor shall have an opportunity to be present, within 20 days of the presentation, and shall give the grievor and a Union Steward designated by the Union Local a decision in writing within 15 days following the meeting. In addition to the Union Steward, a representative designated by the Union Local shall be present at the meeting if requested by the employee, the Union Local or the College. The College President or the President's designee may have such persons or counsel attend as the College President or the President's designee deems necessary. In the event that any difference arising from the interpretation, application, administration or alleged contravention of this Agreement has not been satisfactorily settled under the foregoing Grievance Procedures, the matter shall then, by notice in writing given to the other party within 15 days of the date of receipt by the grievor of the decision of the College official at Step Two, be referred to arbitration. 32.03 A If a matter is referred to arbitration, the process contained in this Article shall apply or, by mutual agreement of the College and the Union Local, the process contained in Article 33, Expedited Arbitration Process, may be utilized. Any matter so referred to arbitration, including any question as to whether a matter is arbitrable, shall be heard by a Board of three arbitrators composed of an arbitrator appointed by each of the College and the Union and a third arbitrator who shall be Chair. . . . Representatives of the Council and the Union shall meet monthly to review the matters referred to arbitration and agree to the assignment of a Chair to hear each of the grievances. 32.03 D The arbitration board shall not be authorized to alter, modify or amend any part of the terms of this Agreement nor to make any decision inconsistent therewith; nor to deal with any matter that is not a proper matter for grievance under this Agreement. 32.04 A If the grievor fails to act within the time limits set out at any Complaint or Grievance Step, the grievance will be considered abandoned. 32.04 C At any Complaint or Grievance Step of the grievance procedure, the time limits imposed upon either party may be extended by mutual agreement. Union Grievance 32.09 The Union or Union Local shall have the right to file a grievance based on a difference directly with the College arising out of the Agreement concerning the interpretation, application, administration or alleged 6 contravention of the Agreement. Such grievance shall not include any matter upon which an employee would be personally entitled to grieve and the regular grievance procedure for personal or group grievance shall not be by-passed except where the Union establishes that the employee has not grieved an unreasonable standard that is patently in violation of this Agreement and that adversely affects the rights of employees. Such grievance shall be submitted in writing by the Union Grievance Officer at Head Office or a Union Local President to the Director of Human Resources or as designated by the College, within 40 days from the occurrence or origination of the circumstances giving rise to the grievance commencing at Step One of the grievance procedure detailed in 32.02. College Grievance 32.10 The College shall have the right to file a grievance with respect to the interpretation, application, administration or alleged contravention of the Agreement. Such grievance shall be presented in writing signed by the College President or the President's nominee, to the Union at the College concerned with a copy to the Union Grievance Officer within 20 days following the occurrence or origination of the circumstances giving rise to the grievance, commencing at Step 2. Failing settlement at a meeting held within 20 days of the presentation of the grievance, the Union shall give the College its written reply to the grievance in 15 days following the meeting. Failing settlement, such grievance may be referred to arbitration within 20 days of the date the College received the Union's reply. The Submissions of the Parties The Submissions of the Union The Union asserts that the College's grievance was both filed and referred to arbitration beyond the time limits prescribed in the Collective Agreement. Counsel for the Union first dealt with its objection regarding the referral to arbitration. The Union pointed out that although the College's letter of May 20th indicated that it was not satisfied with the Union's response to the grievance, the College only wrote that it was "requesting that the matter be referred to arbitration." The Union asserts that this letter should not be accepted as a proper referral to arbitration. The College's formal request to the College Compensation and Appointments Council to put the grievance on the scheduling list only 7 occurred on October 15th. This was beyond the 20 days prescribed in Article 32.10. The Union asserts that there is a significant difference between how the College and the Union must "refer" matters to arbitration. It was said that under Article 32.02, the Union refers a matter to arbitration simply "by notice in writing given to the other party." This was contrasted to Article 32.10 that does not refer to "notice" to the other party, but instead was said to direct that the matter "may be referred to arbitration." On the basis of this difference, the Union argued that the College's May 20th "request" that the matter be referred to arbitration is insufficient to constitute an actual referral to arbitration under this Collective Agreement. It was said that a proper College referral to arbitration can only be effective when the entity responsible for scheduling is sent the referral pursuant to Article 32.03A. The Union relied upon the following cases to support its contention that there is an important distinction between notice and a referral to arbitration: Seneca College and OPSEU, [1998] O.L.A.A. No. 832 (R.H. McLaren); Dana Brake Parts Canada Inc. v. Canadian Autoworkers Union, Local 199, (2000) 90 L.A.C. (4th) 387 (J. Rose); J.M. Schneider Inc. v. Schneider Employees' Assn. (Contracting Out Grievance), (1998) 75 L.A.C. (4th) 154 (Haefling). Counsel for the Union urged the Board of Arbitration to "resist the temptation" of assuming that there is parity between the parties with regard to the arbitration referral procedures under this contract. It was said that such an interpretation would amount to an amendment of the Collective Agreement. Therefore, it was submitted that since the effective referral to arbitration did not occur within the time limits prescribed in the Collective Agreement, the College's grievance should be deemed to be abandoned, pursuant to Article 32.04A. Turning to the timing of the filing of the grievance itself, the Union argues that the College failed to file it within the 20 days of the "occurrence or origination of the circumstances giving rise to the grievance." It was stressed that the College had 8 "robust and complete knowledge of the occurrence that gave rise" to its complaint as early as January 23,2008, when it knew that Professor Hofer had not enrolled in the Executive MBA program. It was emphasized that the "essence" of the College's grievance is that Professor Hofer received benefits he was not entitled to because he failed to honour a condition of his PD Leave by not enrolling in an Executive MBA program. The Union asserts that by March 11, 2008, the College was in full possession of all the facts that were necessary for it to conclude that it has cause to launch a grievance. The Union credits the College for its "due diligence" in investigating its concerns about Professor Hofer, seeking information about the alternative program he enrolled in and its academic equivalency to the Executive MBA. However, it was said that by March 11, 2008, the investigation was complete and the College was in a position that it knew all the circumstances and occurrences that could form the foundation of its grievance. Accordingly, it was said that this date should be deemed the latest one that could "trigger the clock" for the timely filing of a grievance. However, the grievance was not filed until May 1, which is beyond the 20-day time limit. It was asserted that the College should not be allowed to suggest that the triggering event could be Professor Hofer's failure to repay the monies within the time period requested because the failure to repay is not the essence of the grievance. It was stressed that the time limits in this Collective Agreement are mandatory and the consequences of the breach ought to be the dismissal of the grievance. Support for this argument was said to be found in the following cases: Fanshawe College and OPSEU (Ledwell), unreported decision of K.P. Swan, dated March 10, 1993; Algonquin College and OPSEU (Gatien), unreported decision of J. Brunner dated October 4, 1993; Niagara College and OPSEU (Stubbins), unreported decision of D. Kates dated March 22, 1991 ; Fanshawe College and OPSEU (Dobos), unreported decision of K.P. Swan dated November 26, 1991; Fanshawe College and OPSEU (Hanna), unreported decision of G. Brent dated November 1, 1991 ; St. Lawrence College and OPSEU (Beach et al), unreported decision of B. Keller dated March 30, 1998; Sault College and OPSEU (Piotrowski), [2006] O.L.A.A. 568 (R.D. Howe). 9 The Submissions of the College The College asserts that both the filing and the referral to arbitration were timely. Further, or in the alternative, it was submitted that this is an appropriate case to exercise the Board of Arbitration's discretion to relieve against the time limits. Dealing first with the filing issue, it was stressed that the grievance dated May 1, 2008, speaks of Professor Hofer's failure to repay the monies he received for his PD leave by April 30th. Therefore, it was said that the lack of payment should be considered the triggering event for purposes of determining the timeliness of the grievance. Further, or in the alternative, the College argues that the "occurrence" that gave rise to the grievance only "crystallized" once the College had all the facts that were necessary for it to determine that it has cause to file a grievance. It was said that those facts included both the determination that the professor had failed to fulfill one of the conditions of his PD leave and his failure to repay the monies to the College. Further, it was stressed that the College engaged in an appropriate and diligent inquiry into all the circumstances concerning the professor's leave. It was stressed that these inquiries were actually delayed by the professor's assertions that the alternate 'Mini MBA' was equivalent to an Executive MBA, his assertion that the MBA had never been a condition of his PD leave, the College's willingness to give Professor Hofer the opportunity to address the PD Committee and finally by his later withdrawal of that request. It was stressed that the College had promised to postpone making any final decision regarding Professor Hofer's PD leave until this process was complete. The College pointed out that the Union regularly demands that full investigations be conducted before the College takes any steps against a member of the bargaining unit. It was suggested that if the Union's objection is upheld, the consequence would be that employers would be forced to file grievances before they are fully investigated. Therefore, it was submitted that the time period for filing this grievance should only be considered to be triggered as of April 14 when 10 Professor Hofer withdrew his request to address the PD Committee or, at the latest, April 30th, when he failed to meet the demand for repayment. Since the grievance was filed on May 1, it was said that the grievance was timely. Counsel for the College relied upon the following cases in support of the proposition that the full investigation should be completed before the grievance time lines can be triggered: Purolator Courier v. Canadian Council of Teamsters, Local 927 (Watters) [1998] C.L.A.D. No. 913 (W.H. Kydd); Williams v. Treasury Board (Post Office Department), [1979] C.P.S.S.R.B. NO.15 (Mitchell); Babcock and Wilcox Canada v. USWA, Local 2859 (Brown), (2006), unreported decision of I. Hunter dated November 20,2006; Metso Minerals Canada Inc. v. United Steelworkers, (2009), unreported decision of D. Randall dated July 6, 2009; Health Employers' Association of British Columbia and B.C.N.U (Hohn), (2008) 180 L.A.C. (4th) 266 (C. Taylor); British Columbia and B.C.G.E.U (Jansen-Jones), (2005) 83 C.L.A.S. 215, 2005 CLB 9935 ( H.A. Hope). Further, or in the alternative, it was submitted that even if the launching of the grievance was untimely, this is an appropriate case for the Board of Arbitration to exercise its discretion to relieve against the time limits in the Collective Agreement. The College asserts that there "are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension" pursuant to s. 14(16) of the Colleges Collective Bargaining Act, 2008. It was stressed that there is no suggestion of any prejudice caused by any "delay" and that all the factors for the granting of relief are operable in this case in accordance with the principles set out in Greater Niagara General Hospital and ONA, (1981) 1 L.A.C. (3rd) 1 (Schiff). Turning to the issue of the referral to arbitration, it was submitted that the referral was timely or, in the alternative, that the Union has waived any defect. It was stressed that after receiving the Union's reply to the grievance on May 13th, the College wrote on May 20 indicating that it was "requesting that the matter be referred to arbitration." It was conceded that the College did not send this on to 11 the College Compensation and Appointments Council4 or ask that it be listed for a hearing until October 15th. However, it was said that nothing in the Collective Agreement requires that the referral be sent to the Council within the time period. Further, it was submitted that the Collective Agreement does not even define or restrict how the referral to arbitration is to be made by a College. Therefore, it was suggested that while there could be no limits on how a College grievance may be referred, the 'best' or most "purposive" way to interpret the Collective Agreement would be to apply the Step 2 procedures to College grievances. This would simply mean that notice to the Union would constitute a referral to arbitration. It was also pointed out that while it is convenient and efficient to give a copy of a referral to the Council, nothing in the Collective Agreement requires such a procedure. Therefore, it was said that notice of the referral to arbitration to the Union is sufficient. It was also stressed that the College's May 20th letter to the Union did not suggest an intention to refer the grievance in the future, nor should it be read as seeking the Union's approval, because none is needed. While admitting that the College is not inexperienced in terms of labour relations, it was said that the College ought to be recognized as being an "unsophisticated grievor", because it is unaccustomed to initiating the grievance process. Therefore, it was submitted that the Board of Arbitration should not impose "unduly technical" impediments to the grievance process. To support its arguments, the Employer relied upon: George Brown College and OPSEU (Richmond), unreported decision of M. Mitchnick dated October 26,2000; Canada Wide Parking and Labourers' International Union, Local 1 059, unreported decision of G. Brandt dated April 7, 2000; Superior Propane and National Automobile, Aerospace, Transportation and General Workers' Union of Canada (CAW-Canada), unreported decision of O.B. Shime dated January 20, 2003; N-J Spivak Ltd. and Teamsters, Local 141, (2002) 103 L.A.C. (4th) 165 (Crljenica) . 4 Herein after referred to as the Council. 12 Further, or in the alternative, the Employer argues that the Union has waived any time limits with regard to the referral to arbitration. It was pointed out that the parties' joint Committee appointed an arbitrator, scheduled the hearing and the nominees were named to hear this case. It was said that these constituted "fresh steps" taken after any alleged breach of the time limits without the Union raising any objections until one week prior to the first day of hearing. The College says that this amounts to waiver in accordance with the following cases: Centennial College and OPSEU (Glenville), unreported decision of S. Schiff dated October 17, 1997; and George Brown College and OPSEU (Richmond), supra. The Union's Reply Submissions While the Union drew upon the language of Article 33.03 that allows for preliminary objections to be made up until seven days prior to the first day of arbitration, it was also conceded that this provision applies to "expedited arbitrations", so this argument shall not be addressed further. The Union also argued that the case law does not support a notion that an employer can or must complete its investigation if the collective agreement requires that an action be taken within a certain number of days after an event or occurrence happens. It was stressed that the application of contractual time limits should be based on a determination of objective facts, not subjective conclusions. In response to the College's alternative request to extend the time lines, the Union argued that this would not be an appropriate case to do so. It was stressed that it was the College's Director of Human Resources who failed to meet the time periods, and that a high standard ought to be applied to that office, similar to as was done with a union official in Exolon-ESK Co of Canada and C.E.P., Local 36-0, (1993) 37 L.A.C. (4th) 439 (Haefling). Further, it was pointed out that the delay in filing the grievance relates to the initiation stages of the grievance, which is considered more significant in the case law. The Union also 13 took umbrage to the College's suggestion that Professor Hofer was responsible for any of the delay. Finally, while the "nature" of the case was recognized as a factor to be considered in the exercise of discretion, it was argued that this case should not be considered as one of great importance to the parties because no case similar to it has arisen in the past. The Decision There is real irony to this case. It is not unusual for a board of arbitration to hear employers asserting preliminary objections to grievances, trying to have the collective agreements applied to the letter, and seeking to limit the exercise of any arbitral discretion. Similarly, it is not unusual to hear unions arguing that collective agreements should be given "purposive" interpretations, and that the merits of cases should not be defeated by technical objections. The submissions summarized above reveal an unusual role reversal for the parties. This is more than ironic. The submissions put the parties in a position that if they "win" any of their arguments in this case, this could have a significant, but unwelcome, impact on their rights and obligations in future cases. Some of those impacts may not be very comfortable. With that in mind, it must be said that the cumulative years of experience of the members of this Board of Arbitration have taught us that it is rarely in the parties' interests for pronouncements to be made unless they are vital to the real issues in dispute. Therefore, although we have considered all the arguments and cases presented to us and summarized above, the following decision shall be limited to only the key elements that need to be decided. The issue of the timing of the filing of the grievance Both the Union and the College presented compelling arguments regarding the timeliness of the filing of the grievance. However, since the amendments to the Colleges Collective Bargaining Act in 2008, a board of arbitration has had the power to relieve against time limits. Section 14(16) provides: 14 . . . .. an 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 no party will be substantially prejudiced by the extension. Therefore, taking the Union's objection regarding the alleged lateness of the filing at its highest, a matter we decline to decide upon, we would be and are still compelled to consider whether this is an appropriate case to relieve against that time constraint. We are advised that this discretion has not been tested in the College sector to date, but it is a discretion that has existed for years under the Labour Relations Act, S.D. 1995. The factors that should be considered with regard to the exercise of that discretion were defined in the Greater Niagara Hospital case, supra, by Arbitrator Schiff, and have been applied consistently ever since. Further, both parties to this case also relied upon them. Accordingly, the facts surrounding this grievance shall be analyzed in accordance with those factors. 1. The Nature of the Grievance This issue concerns both the monetary and the contractual components of the grievance. In this case, the monetary claim against Professor Hofer is $70,324.27. The contractual issue concerns the rights and obligations of a professor who has been granted professional leave under Article 20 of the Collective Agreement. The value of a $70,324.27 claim can be said to be relative. In relation to the College's overall budget, this is not a considerable amount. However, for the Professor, or any individual, it is a significant amount. Further, in terms of the parties, this sum could be equated to the value of a full-time academic position, something of great value to a College and its bargaining unit. Further, while it is true that the application, interpretation and consequences of any breach of Article 20 are not common or frequent 15 issues in this sector, this does not diminish the importance of this issue to the parties. Professional Development Leaves are an important benefit to professors, the students and to the College. This is acknowledged in the language of Article 20 itself: The College recognizes that it is in the interests of employees, students and the College that employees are given the opportunity by the College to pursue College-approved professional development activities outside the College through further academic or technical studies or in industry where such activities will enhance the ability of the employee upon return to the College to fulfill professional responsibilities. Further, there is an elaborate and careful process in the contract, setting out the conditions and terms for the granting of the leaves. These leaves are highly prized and not automatic. The fact that no other cases have gone to arbitration on this clause may mean that it is not common for problems to arise with respect to the administration or fulfillment of these Leaves. But that does not mean that there is no value in offering guidance to the parties with respect to the interpretation, application and consequences of violations of Article 20. The arbitration process can serve many purposes, one of which is to educate the parties so that similar problems do not arise in the future. For all these reasons, it must be concluded that there is significant importance to this grievance, both in terms of its monetary and contractual nature. 2. Whether the delay occurred in initially launching the grievances or at some later stage It is considered more serious if the delay occurs at the early stages of the process because this may prevent the other side from marshalling or preserving evidence if it is lulled into a belief that no complaint will be made. In this case the alleged "defect" or lateness arose at the very first step: the filing of the grievance. However, it must also be noted that all 16 through the months of February to April 2008, the Union and Professor Hofer were aware of the College's concerns and complaints. Further, there has never been any suggestion that either were lead to believe that the College would walk away from these concerns. 3. Whether the Grievor - i.e. the College - was responsible for the delay Assuming, without deciding, that there was a delay in this case, the "responsibility" does lay with the College to some extent. While it knew by mid-March all the material facts relating to its claim that the Professor had failed to fulfill the conditions of his PD Leave, the College did not launch the grievance until May 1 st. The College had complete control over when it chose to file the grievance. However, the issue of "responsibility" in this case is intricately linked to the following factor of "reasons" for the delay, so it shall be addressed in further detail in the next paragraph. 4. The reasons for the delay There are several reasons why the College chose to wait until May 1 to file the grievance. First, while it suspected as early as January that the Professor had failed to meet one of the conditions of his Leave, it began an investigation into the matter. That investigation included asking the Professor for information, seeking particulars from relevant outside sources, responding to the Professor's assertions, and considering all the details that had been gathered. Further, it afforded the Professor his requested opportunity to address the PD Leave Committee before the College made its formal decision. Finally, while the College issued a demand for repayment once it determined that monies should be paid back, the grievance was not filed until the deadline set for payment had passed. All these "reasons" add up to a demonstration of what even the Union recognized and credited as "due diligence". To hold these reasons 17 against the College could result in a situation where employers would feel compelled to impose discipline or file grievances before a full and fair investigation was completed. This is not a situation where time limits have been wantonly ignored or disrespected. Nor is this a situation where any delay in filing can be attributed to anything other than the undertaking of fair and appropriate investigative and procedural practices. 5. The length of the delay Taking the Union's objection in its best light, the delay in this case runs from mid-March until the first of May, approximately six weeks with a Collective Agreement that has a 20-day filing deadline. Arbitrators recognize that a hallmark of arbitration ought to be the speedy and expeditious processing of grievances. The maxim, "Justice delayed is justice denied", has real application in the labour relations context. Further, the parties define the time guidelines they consider to be appropriate for their workplace in their contracts. So by setting 20 days as the time for launching a College grievance, the parties have set their own bar for timeliness. However, while a six-week delay does not meet that standard, it is not an outrageous or shocking deviation from the set limit. We can and must take arbitral notice that in this sector, given the scheduling demands of all the people involved in the processing of grievances, a six-week delay is not very significant, especially in a case like this one where time was not of the essence for anyone. We are not dealing with a layoff or discharge case where someone has lost his/her income or professional status or where there is ongoing accrual of potential liability for an employer. Therefore, it must be said that the delay was not considerable or significant in this case. 6. Could the responding Union or the affected employee reasonably have assumed that the grievance or complaint had been abandoned? 18 This has been addressed already in sub-paragraph 2 above. All through January to March 2008, the College was communicating with the Union and the Professor, letting them know that there were serious concerns about alleged failure to fulfill the conditions of the PD Leave. There would be no basis upon which they could have assumed that the College would not pursue this matter, nor has this been claimed. 7. Whether there has been any prejudice to the Union or the affected employee by the delay Neither the Union nor the Professor have asserted that there has been any prejudice created by any of the alleged time delays in this case. Nor is there any evidentiary basis upon which to find any prejudice. A consideration of all these factors leads to the inescapable conclusion that this is an appropriate case to grant an extension of the time required for the filing of the College's grievance. This is an important case to the parties and the affected employee in terms of dollars and contract interpretation. Even if there was a delay in contractual terms, it was not lengthy, it created no prejudice or suggestion that the complaint was being abandoned, and the reasons for the alleged delay were all legitimate and well-intentioned. Accordingly, the mere timing of the filing of the grievance is not deemed to be a reason for its dismissal. The issue of the timing of the referral to arbitration The Union asserts that the College failed to properly refer its grievance to arbitration within the prescribed 20-day timeframe. This assertion is based on the fact that the College's May 20th letter merely said that it was "requesting that the matter be referred to arbitration" and no actual referral occurred until the October 15th letter to the College Compensation and Appointments Council asking that the grievance be listed for scheduling. This raises the question of what constitutes a proper referral to arbitration for a College grievance under this Collective Agreement. The parties agree that a 19 referral to arbitration for a Union grievance is quite clear. This is governed by Step Two of Article 32.02 that provides: "the matter shall then, by notice in writing given to the other party within 15 days of the date of receipt by the grievor of the decision of the College official at Step Two, be referred to arbitration." The parties accept that "notice in writing" to the College constitutes a referral to arbitration. Where they differ in this case is whether "notice in writing" to the Union will also constitute a "referral to arbitration" for the College. The case law does recognize that giving notice or voicing a desire for arbitration is not the same as making a referral to arbitration under many contracts. In the case of Babcock and Wilcox Canada (Comeau) v. USWA, Local 2859, supra, it was held that a union's letter to the employer setting out its "request for arbitration" did not comply with a collective agreement's requirements because the request had to be made to an arbitrator in order to constitute an actual referral to arbitration. Similarly, in the case of Dana Brake Parts Canada Ltd. and CA W, Local 199, supra, it was held that where a contract provided that a submission to arbitration "shall" include the nomination of an arbitrator, the failure to do so within the time provided for meant that the grievance was untimely. On the other hand, the Canada Wide Parking v. Labourers International Union case, supra, reviews much of the case law on this issue and concludes that they "demonstrate a consistent approach to determining what is required in order that a matter be 'referred to arbitration'." That was said to be: ". . . the giving of notice to the other side that the unresolved matter will be advanced to the next step, viz determination by an independent arbitrator with the power to issue decisions that are binding on both parties" [at p. 12]. Accordingly, situations where the union simply advises the employer that it will be "seeking" arbitration, or "requesting an arbitrator", have been held to be a sufficient "referral to arbitration"; see Superior Propane Inc. and National Automotive, Aerospace, Transportation and General Workers' Union of Canada (CAW-Canada); and N-J Spivak Ltd. and Teamsters 141, supra. In this latter case, Arbitrator Crljenica made a point of emphasizing that a "request for arbitration" can mean notification 20 to the other party that one intends to proceed to arbitration. He adopts a "purposive" and 'labour relations approach' to interpretation: Where a contract may be interpreted in more than one way, and if a literal interpretation would achieve a result which is contrary to the purpose and intent of the parties, it is appropriate to apply a non-literal interpretation which promotes the purpose and intent as can be discerned from reading the articles in question in their entirety. [at p. 172-173] We accept and adopt a purposive and labour relations approach to the interpretation of collective agreements. This does not mean that clear language that signifies an expressed mutual intention can be ignored in favour of what a board of arbitration may feel is a "better labour relations result". A purposive approach to interpretation means that where the express intention is not clearly spelled out or where there is more than one way to apply contract language, the result that most accords with the fundamental values of labour relations and that is consistent with the other provisions in the contract will be the result that will govern . Applying these principles to the issue at hand, it must also be remembered that, as with all arbitrations, the most important determining factors are the contract language and the facts. Article 32.10 provides that a College grievance "may be referred to arbitration within 20 days of the date the College received the Union's reply." Article 32.10 does not prescribe a method or procedure for referral. The Union grievance language is more precise; it provides that the "matter shall then, by notice in writing to the other party. . . . be referred to arbitration." Therefore, the question becomes whether the Union is correct in asserting that the College's May 20th letter stating it was "requesting that the matter be referred to arbitration" is insufficient to constitute a referral under this Collective Agreement? For several reasons, the answer to this is 'no'. 21 First, while cases do recognize a distinction between a notice and a referral to arbitration, arbitral jurisprudence has long recognized that technicalities should not bar a hearing of the merits of the case unless there is clear contractual language that signifies that the parties have chosen to hold each other to such precise standards. In this case, the notice of May 20th can only be read as the College's indication of its dissatisfaction with the Union's reply to the grievance and as the College's clear articulation of the fact that it intended to move the dispute to the next stage in the grievance process, i.e. to arbitration. It is true that the language used is a "request" rather than a "referral". However, in this case this is a distinction without a difference. Nothing suggests that the Union perceived this letter as something seeking its "permission" to move on to arbitration because "permission" is not required. Further, nothing in the evidence suggests that the letter gave the Union the impression that the College was seeking permission or had any intention other than to proceed to arbitration. The Union has never suggested that it was surprised when the matter was scheduled for hearing and, indeed, only raised any timeliness objections one week before the hearing was to begin. All this is relevant to the fact that if the purpose of a referral to arbitration is to give the other side "notice" of the intention to proceed to arbitration, it is clear from the College's letter of May 20 and the Union's response thereafter that the College had made its intention clear. Further, that intention was stated within the timeframe provided for a referral to arbitration within this Collective Agreement. Second, even if the purposive approach is not accepted, and even if "notice" is something different than a referral, we must also conclude that the College's referral to arbitration meets the requirements of this Collective Agreement. We do not agree with the Union that there are different standards or procedures required of the parties with regard to the referral to arbitration. Article 32.10 specifically incorporates the Step 2 processes under Article 32.02 when it says that College grievances shall be filed "commencing at Step 2". This must mean that the Step 2 processes apply to the College grievances. Step 2, according to 22 the Union itself, provides that mere notice in writing to "the other party" amounts to a referral to arbitration. The College's May 20th letter met this condition. This conclusion is buttressed by the words "other party" in the last paragraph of Step 2. If the Step 2 referral to arbitration process was only meant to apply to the Union for purposes of the referral to arbitration, the words one would expect to see would have been 'by notice in writing given to the College. . . be referred to arbitration.' Therefore, the use of the words "other party" rather than "the College" must be read consistently with Article 32.1 O's incorporation of Step 2 and mean that the College and the Union share the same rights and obligations regarding the referral to arbitration, except where there are specific differences. Accordingly, while the Union has 15 days to make the referral, the College has 20. This interpretation gives meaning to all the words of the contract and allows for a consistent application of its provisions. Therefore, we conclude that the May 20th letter from the College amounts to a timely referral to arbitration under this Collective Agreement. This means that the parties' submissions regarding "waiver" of the time limits is irrelevant and need not be addressed. Accordingly, although the Union's two timeliness objections were ably and thoroughly presented, they must be dismissed on the basis of the facts of this 23 case and the applicable contract language. Therefore, the case shall proceed to a hearing on its merits. Dated at Toronto this 14th day of April, 2010. "Paula Knopf" Paula Knopf - Chair I concur "John Pod more" John Pod more - Employer Nominee I concur - see Addendum below "Pamela Munt-Madill" - see Addendum Pamela Munt-Madill - Union Nominee Addendum of Pamela Munt-Madill The irony of the result in this case does not escape me. However, I agree with the Board's conclusions regarding the proper test to be applied in exercising its discretion and the application of that test to this case. Therefore, I concur with the decision.