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HomeMy WebLinkAbout2011-3848.Weiler.13-11-21 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2011-3848, 2011-3849 UNION#2010-0517-0056, 2010-0517-0057 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Weiler) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Loretta Mikus Vice-Chair FOR THE UNION Sheila Riddell Ryder Wright Blair & Holmes LLP Barristers and Solicitors Counsel FOR THE EMPLOYER Kevin Dorgan Ministry of Government Services Legal Services Branch Counsel HEARING February 19, 2013 - 2 - Decision [1] The grievor, Shawn Weiler, filed a grievance on May 25, 2010, regarding several allegations that he had been derelict in his duties during an incident on May 5, 2010 at the Metro West Detention Centre. This award deals with a preliminary objection to my jurisdiction to hear this grievance on the basis of delay in submitting it to arbitration. [2] For purposes of this hearing the parties have agreed as follows: 1. Shawn Weiler (The Grievor) is employed as a Correctional Officer (CO2) at Maplehurst Correctional Complex in the Ministry of Community Safety and Correctional Services. 2. On May 25, 2010, the grievor filed two grievances: GSB #2011-3848, OPSEU #2010-0517-0058 (Exhibit #1) and GSB #2011-3849, OPSEU # 2010-0517-0057 (Exhibit # 2). 3. A Stage Two meeting was held on June 16, 2010 with respect to the two grievances filed by the Grievor. 4. In a letter dated June 17, 2010, the Employer denied the grievances. 5. The two grievances were referred to arbitration on March 20, 2012. (Exhibit #3) [3] Mr. Kevin Dorgan, for the Employer, took the position that the collective agreement clearly requires the Union to refer a grievance to arbitration within 15 days of the response by the Employer. These grievances were referred well outside of that time limit and this Board does not have jurisdiction to proceed. [4] Ms. Sheila Riddell, for the Union, conceded that the grievances were not filed within the time limits in the collective agreement but submitted that, given the serious nature of the grievances and the effect these accusations have had on the grievor’s personal and professional life, this Board should allow an extension to the time limits and accept jurisdiction. The grievor is not responsible for the delay and deserves to have his complaints addressed. [5] The relevant provision of the Collective Agreement reads as follows: 22.4 If the grievor is not satisfied with the decision of the Deputy Minister or his or her designate or if he or she does not receive the decision within the specified time the grievor may apply for a hearing of the grievance within fifteen (15) days of the date he or she received the decision. - 3 - [6] It is true that an arbitrator has discretion to relieve against time limits of a collective agreement, even mandatory time limits if the criteria set out in section 48(16) of the Labour Relations Act have been satisfied. That section reads as follows: Extension of Time: except where a collective agreement states that this subsection does not apply, an arbitrator or arbitration board may extend the time for the taking of any step in the grievance procedure under a collective agreement despite the expiration of the time, where the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension. [7] However, the history of that provision is significant. In 1992, when it was amended to include the arbitration process, it was an intentional addition that was to widen the arbitrator’s jurisdiction to allow the parties to get to the real issue before the Board. The subsequent amendment in 1995 was again a deliberate change to the Act to make it clear that there was to be no relief for a failure to meet the time requirements for referring a grievance to arbitration. The court decision in Re Leisure World Nursing Homes Ltd. and Service Employees international Union, Local 204 confirms that interpretation. The Court could not have been clearer. It stated in paragraph 19 as follows: “The jurisdiction to grant relief from time limitations with respect to grievances should not be interpreted to also grant relief from time limits from referrals to arbitration. Section 48 (16) is clear and unambiguous. To conclude otherwise is to conclude that the deletion of the words “or arbitration” from the 1995 version had no effect whatsoever. The words in the statute must be given their clear meaning. The Board had no jurisdiction to extend the time limit for referral to arbitration” [8] Where the Union, in the past, had suggested that if the language in the Collective Agreement melds the two procedures so that there is no distinction or separation between the grievance and arbitration process, a Board of Arbitration should apply section 48(16) and exercise its discretion. That question has been effectively answered in the decision of Cherry and the Minister of Finance (GSB#0626/01). In that decision Vice-Chair Gray stated as follows in paragraph 13: … Thereafter, this grievance was not referred to arbitration by the Union for nearly fifteen months, whether that is because the grievor did not ask that it do so or because the Union did not follow through when asked, the result on this issue and in this forum is the same: according to the collective agreement the grievance is inarbitrable. - 4 - [9] The jurisprudence at the GSB on this issue is clear, unequivocal and consistent. Notwithstanding section 48(16) of the Labour Relations Act, an arbitrator does not have the jurisdiction to extend the time limits in a collective agreement for a referral of a grievance to arbitration. [10] For these reasons, Employer’s motion is granted and the grievance is dismissed. Dated at Toronto, Ontario this 21st day of November 2013. Loretta Mikus, Vice-Chair