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HomeMy WebLinkAbout1993-1998.Bertrand.95-07-24 -;.~,.., .' -. ~: . : : ~.~' ;',' .- "'.',; -- ..'" . , ONTARIO. EMPL.OYES OE LA CDURDNNE _,.", ,;':_, _," '.. '.', .', CROWN EMPL.DYEES OE L 'ONTARIO ,0 1111' GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1ZB TELEPHONEITELEPHONE (416) 326-1388 I 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1ZB FACSIMILEITELECOPIE "(416) 326-1396 I - GSB # 1998/93~ 2005/93, 24.J..5/90 OPSEU # 93E776, 93E765, 91A3l8 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GR.IEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Bertrand) Grievor ... and - .- The Crown in Right of Ontario (Ministry of Health) - Employer ,,/" ~ BEFORE L. Mikus Vice-Chairperson -.. J.Carruthers Member D Montrose Member \ FOR THE S. Lopez GRIEVOR Counsel Cavalluzzo, Hayes, Shilton, McIntyre & Cornish Barristers & Solicitors FOR THE M. Wilson EMPLOYER Counsel Legal SerVices Branch Management Board of Cabinet -- HEARING January 12, 1.995 ;:- - April ll, 1995 -- MANAGEMENT BOARD SECRETARIAT JUt 2 8 1995 - Negotiations Secretariat - - ; ~^ " '" I This is an interim decision concerning three grievances filed by Maria Bertrand, a Medical Technologist 1 with the Ministry of Health (hereinafter referred to as the "Employer') It was agreed by the parties that all three grievances would be_ ,- -- consolidated for hearing before this Board. The fiIst grievance was filed on September 18, 1990, and alleges that the Employer discriminated against her on the basis of handicap by refusing to I allow her to return to work after a period of total disability She asked that she be returned to work on a rehabilitative program approved by her doctor. \ '- .- The second and third grievances were filed on December 5, 1991, and allege the Employer violated article A and article 42 of the collective agreement Both grievances request the same remedy as the first grievance, that is a return to -" work on a rehabilitation program approved by her doctor, retroactive salary and \ benefits, including interest Article 42 deals with the provision for long tenn disability benefits. Article A reads as follows: .ARrICLE A - NO BQtJI'1'!' A.l.l There shall be no disc:Iiminaticn pxactised. by reason of mce, ancestry, place of origin, colour, ethnic origin, dtizEmShip,creed, sex, sexual orientation,age ma:rilal status, family statuu, or handicap, as de1ined in section 10 (1) of the OntaIio Human Rights Code (OHRO) -- At the commencement of the hearing,- the Employer raised the following .- - preliminary objections to our jurisdiction to hear these grievanc;:es: 1 The grievances have been settled or withdrawn a nd the -, Union is estopped from attempting to resurre~em. - 1 - i - 2 2. The griever did not comply with the mandatory time limits set out in the grievance procedure and therefore, according to article 27.13, the grievances are deemed to have been withdrawn. - - -- 3. In the alternative, the December grievances did not go through the second step of the grievance procedure and therefore must be dismissed 4. There has been an inordinate delay in the processing of these grievances. 5. The griever filed a human rights complaint in April of 1991 ! that deals with the same issue as these grievances. This board has no jurisdiction as long as the griever is pursing these issues in that forum. THE FACTS \ - /.'- .// The griever began working under contract at. the Ontario Regional Health Laboratory in Timmins in May of 1985, as a Laboratory TecluUcian and in June of 1986, was hired into a permanent position. In June of 1988, she went off work on sick leave. She returned to work in November of 1988, but went off again in February of 1989. She filed her first grievance on September 18, 1990, because , she and the Employer had been unable to agree on a retum to work program. OnAprilll, 1991, a prehearing was held to discuss that grievance. Mr. Naismith, a Human Resource Consultant with the Employer, testified that, at that - -- :- - meeting, they reached an agreement that the griever would be returned to work as soon as possible but not before 1992. No minutes of settlement were signed and no fonnal agreement. to withdraw the grievance was made by the Union at that time. - I ...... .- ". '" ( \ ,. 3 When Mr. Naismith returned to his office he found a copy of a memo dated March 28, 1991, to fifteen ministries and agencies of the government from the - ,- Grievance Settlement Board (hereinafter referred to as the IIGSBI~ advising them-- that the grievances listed in an accompanying attachment had been withdrawn. Included in that list, under the JYIinistry of Health, was listed grievance # 2415/90 (GSB #) and 91A318 (OPSEU #) - Maria Bertrand - Discrimination. Mr. Naismith was surprised when he got-this memo because it predated the preheating and he wondered why there had been a prehearing if the grievance had been settled. , \ .- Unbeknownst to him, there had been a series of letters between the Union and the GSB over this grievance. On January 18, TS91, the Co-ordinator of --.. Grievances wrote to the Registrar of the GSB asking her to arrange a hearing on \ grievance # 91A259. Attached to that letter was a copy of the grievance dated September 18, 1990. By letter dated January 23, 19S1,a similar letter was sent to the aSB requesting a heaIing on file # SlA318. Attached to that letter was another copy of the grievance dated September 18, 1990. By memo dated January 31, ISSI, a Union staff representative wrote to the Co-:- '- - ordinator of Grievances advising him that the letters of January 18 and 23, 1991 purported to refer the same grievance to arbitration and suggested that they - proceed with the first one, that is the grievance numbered 91A259. A letter , I \, 4- dated February 12, 1991, was sent to the Registrar correcting the earlier mistake and asking that grievance 91A259 be forwarded to arbitration. - .- -- Asa result, the preheating on April 11, 1991, was scheduled. Following the prehearing, Ms. Mary Anne Kuntz, Grievance Officer with the Union, sent a letter dated April 29, 1991, to Mr. Naismith advising him, in part, of the following. I am writing in regard to the matter of the grievance of MaIia. BeItIand. I would like to have the grievance adjoumed ( sine die) pending the completion of the rehabilitation period. She has advised me by way of letter dated 23 April 1991 that she has filed a. :. Human Rights Complaint a.gainst the ~try of Health and will seek redress about the discrimination issue in this way.mther than through the grievance .- procedure. She further advises that she is pmpared to retum to work under the Plan proposed by Mms GDJigan. It j;;,my undeIstanding that she is ~lDen~Pleto some modifi~ations if necessaIY although both she ancfI feel that few changes should be required. For example, if Ms. Cahoon is of the opinion that she requires fall days in serology for some aspects of the work, it would seem to make sense to -., schedule her to be assigne4 to those elements of serology when she is up to full time homs after a few weelm of shorter work peIiods. I wm claIi1'y with Mrs. BertIand the time she has in mind regarding her :retum to work. Additionally, it would be useful if you could coDiinu whether or not the plan suggested by Ms. Gilligan in its present fonn is acceptable at this time. If it.is, the only details reJTl~mn,g axe the date of MIs. Bertrand's mtum and the dpfini1inll. of who will participate in the FIiday revieW s..-ri01's. 'In so far as no one could be considered. neuttal - I would SUggest that the President of the Local (who is also a colleague) miaht be as appropriate as anyone to ensure that these meetings are fair and productive for both sides. I wm be away on business for the week of Aprll29, 1991 and will contact you on my retum date. You have indicatecl that the Ministty is committed to ensming a -- smooth re-entry for Marla and I am hOpeful that this can be ,effected in a ;:- - ~Vt:l fashinn for all concemed. I trust that the Ministty will respect MIs. Bertrand's Iiaht to process her concems via the Human Riahts complaint and allow,the Commission Officer the freedom to detezmine whether or not her concerns should be validated. Should you have any questions about this matter in my absence, please contact my colleague Ann Lee who is also famm~T with Mm. Bertrand's gDsvance. Mr. Naismith testified that, when he received ,the April 29, 1991, letter from Ms. ";}~' t".." "" "It '?-'1' -; ,~ ( \ 5 Kuntz, he was confused about the first two paragraphs. He knew that lIadjoumed sine diell meant the grievance was to be held in abeyance until - - some future date. However, he read the second paragraph to mean that the _- grievance was to be withdrawn in favour of the proceedings at the Human Rights Commission. He believed that they had reached an agreement at the preheating to retum the griever to work as soon as she was able. He made no efforts to contact Ms. Kuntz or Ms. Lee because he was satisfied that the grievance had been withdrawn. \ -- Ms. Kuntz denied there had been a settlement at the prehearing on April 11, 1991 She testified that they spent a considerable amount of time and energy " attempting to reach an agreement but, at the end of the day, nothing had been --' finalized. The griever's return date was uncertain. The Employer wanted - \ something in writing from the Union summarizing its position and Ms. KImtz wrote the letter of April 29, 1991, setting out what she believed was a clear I request that the grievance be held in abeyance pending the outcome of the human rights complaint. It was her evidence that at no time did she suggest that the grievance had been withdrawn. --, - :- - In fact, the grievor did not return to 'work and on December 5, 1991, 1iled the second and third grievances. At ~ first stage grievance meeting it was agreed - that she would return to work on a thirteen week rehabilitation programme. By - co ( - 6 letter dated December 17, 1991, the Union wrote to the Employer suggesting changes to its proposed rehabilitation programme. Included in that letter an - ,- -- agreement was noted that the griever would retum to work on January 6, 1992, and that the grievances would be held in abeyance pending completion of the programme. As far as Mr. Naismith knew, the griever completed the rehabilitation programme and the grievances were settled. He stated that he would not have been involved in the actual implementation of the rehabilitation programme and assumed that, because he heard nothing, it had gone well. On April 6, 1992, the griever was notified ilia! she was being declared surplus and ._ that, unless she was reassigned to another position by October 6, 1992, she would be, released from employment - n' -., Mr. Naismith gave the grievances no further thought until he was advised of a prehearing meeting scheduled for May S, 1994, to discuss them. At that prehearing, the Employer did not raise any objections concerning these grievances but by letter dated May 27, 1994, it advised the Union that it intended 'to raise preliminary objections to these grievances on the grounds that they were not properly processed through the grievance procedure, that the - -- - mandatory time limits had not been adhered to, and that there was undue delay and prejudice. Mr. Rob Kinnear is a staff rep~sentative with the Union and took over the ---,-,----- - -0 ~ ~ '1 grievor's file from Mr. Wentworth, who is now deceased. He was in the Timmins office from March of 1992, to November of 1994. When he took over:Mr. - ,- Wentworth's case load he read the griever's file to familiarize himself with the -- December grievances and the rehabilitation plan. He received a call from the Employer concerning problems in the rehabilitation programme and met with the Employer and the grievor on I ~arch 6, 1992, to discuss those concerns. At that meeting the Employer raised concerns about the griever's performance and the grievor raised concerns about the atmosphere in the workplace. She felt ,they did not want her back and were~eing unnecessarily hard on her in its - .- evaluation of her rehabilitation. Those concerns were repeated to the Employer in a phone call by Mr. Kinnear to the griever's supervisor on March 20, 1992. According to Mr. Kinnear's evidence, the Employer had to have known that the -.' rehabilitation programme was_not going well. Mr. Naismith asked for an \ extension of the programme but the griever refused. Instead she was declared surplus. The rehabilitation programme began in January of 1992, but, according to Mr. Kinnear, was never completed. He was unsure as to whether it was physically completed but maintained that it was never satisfactorily completed as far as-.tne - griever and Union were concerned, primarily because the original plan had. been altered by her supervisor. He did not know whether a second stage grievance meeting was held before he took over the me. - 0; ( \ 8 ARGUMENT - - -- Ms. Wilson, counsel for the Employer, reviewed the griever's work history as follows: she worked from January 1, 1990, to February 16, 1990; she was off work: from February 16, 1990, to December 31, 1990, and all of 1991, she returned to work on January 6, 1992, and went off on sick-leave from June 16, 1992, to September 23, 1992; she went off work on November 27, 1992, and remained off work until April 12, 1994. There is no dispute that all of those ; / absences were as a result of her disability .- There is also no dispute that the .Employer was advised by the GSB that .the grievance of September 18, 1990, had been withdrawn and that it was not raised -., again with the Employer until D~cember of 1994, when it was forwarded to arbitration. Now the Union is attempting to revive this grievance by claiming a clerical error had been made. During all that time the Employer has considered I the grievance settled or withdrawn. It acted upon that assumption to its detriment and the Union is now estopped from attempting-to resmrec::t it There has been an inordinate delay with serious consequences for the Employer. I -- Memories have dimmed in the interVal, some of the documents are available and - -' one of the decision-make:r:s is no longer with the Employer. The facts conceming the December grievances are equally confusing. They - ( ~ were filed while the griever was on LTIP and, as a remedy, ask for a, return to i work on a rehabilitation programme. There is no dispute that she was returnee. I I I ,- to work on a thirteen week programme and the grievances were to be held in -- abeyance pending completion of that programme. The griever completed the progranune and was returned to work. Nothing further was said about the grievances or the rehabilitation programme until May of 1994. The Union and the griever cannot wait two years to advise the Employer that the rehabilitation programme was not successful. The time to have done that ~ in 1992, when the programme ended. The Employer felled on the Union's silence as .- - agreement that the Employer had complied With the tenns of the settlement. The Union cannot nowc1aim that they were not. --' Ms. WIlson referred the Board. to the following cases in support of her position; \ Re St. Clair College and OPSEU auly 13, 1992), unreported (Shime), Be Hanwell and Ministry of Conectional Services (May 14, 1984), GSB # 609/82 (Swan); Be OPSEU and Ministry of Health (Febma..ry' 21, 1990), GSB # 576/81 (Teplitsky), Be Bolfe and Ministry of Ccmecticmal Services (February 21, 1990), GSB # 1161/89 (Watters), Be Foxbes ami MhdBtty of Health, (August 3, 1993), GSB # 3187/92 (Devlin), Be Connelly and Ministry of Health (December 1, 1989), GSB # 960/88 - (Dissanayake), Be Algcma Ccntractors Ltd. and United Steelwcrkms. Local 4694 (1980),26 LAC. (2d) 292 (Hinnegan),Bs Rigglesvt~ and Ministry of T1cmsportaticn (April 19, 1991}, GSB # 637/90 (Fisher), Be MotoLmly& DiIect - ---- - --- \ 10 _ --- - TImlSport Ltd v. Canada (Canadian Hmnan Bights Commission) (1991), 36 G.G.E.L 201 (Federal Court of Canada); Be Allied and Tecbnical Wcrkms, - - District BO, and Liquid CaIbcmic Canadian Cmp. Ltd. (1971), 23 LAC. 78 -- (Rayner); Be Kohut and Naticna1 Antamobile JAerospace and Agricultural Wmkem' Union of Canada, Local 3903 (1991), 1991 O.L.R.B. Reports (December) 1367, :Re Bl'lCk and Ministry oflUmmue (November 14, 1990), GSB # 1795/89 (S.Stewart), Ghosh v. Domglas Inc. (1986), IS C.C.E.L. 105 (Ontario Supreme Court) \ - .- Ms. Wilson directed the Board to the relevant provisions of grievance procedure. They read as follows: /po-:-:,' ARTICLE 27 - GlUBVANCE PROCEDtmE 27.4 If the g.tievor is not satisfied with the decision of the Deputy Minister or -., his designee or if he aoes not receive the decision within the specifiecl \ time the gtievor may apply to the GIisvance Settlement Board fer a hearing of thegIievance within fUleen (15) days of the date he received the decision or wi1hi:n fifteen (15) days of the specified time for receiving the decision. 27.13 Where a gxievance is not processed within the time allowed or has not been processed by the employee or the Union wUhin the time prescribed it.shall be deemed to have been WithdIawn. 27.16 The Grievance Settlement1!oani.shall have no jmisdict10n to alter, change, amend or enlaIge any provisions of the Collective AQIeement. -- Ms. Lopez, counsel for the Union, took the position that the grievance of ~ - September, 1990, was never withdrawn or settled. The Union evidence has shown that initially a clerical error resulted in an incOtrect memo advising the - Employer that the grievance had been withdrawn. The Union took immediate - I -~ 11 steps to rectify the error. - ,- Inany event, argued the Union, the evidence is clear. The parties attended a -- prehearing on April 11, 1991 The grievance was neither withdrawn nor settled at that preheating. Mr. Naismith conceded that when he received the March 28, 1991 memo, he wondered why there had been a preheating at all. When he received the letter from Ms. K:untz he was more confused. He testified that in one paragraph the Union wanted to adjourn the grievances siDe die while in another it seemed to say it would be pUISuing its interests elsewhere. He .never \ - made any inquiries about the Union's intentions. The Union's evidence, on the other hand, was clear. Neither it nor the griever ever considered this grievance settled. --.. \ With respect to the December 6, 1991, grievances, the Union took the position that the Employer waived any objections to the form of the grievance by attending the preheating conference and failing to raise an objection at the time. As well, there is no evidence before this Board that the grievances were settled. The parties agreed to hold the grievances in abeyance pending successful completion of the rehabilitation programme. The Union made it clear to the -;- '- Employer at the time that it was not in agreement with the programme itself or its application to the griever. It was not a success therefore the grievance was not settled. The Union representative who handled the grievance is no longer 1Z- I available to tell the Board ccut discussions concerning a second stage I meeting. - - -- The Union conceded that these grievances did not conform to the usual procedures. It pointed out that these are unusual circumstances. They do not involve an isolated incident, cut rather, a long tenn dispute concemmg complex issue of accommodation and rehabilitation. Further, there has been a long delay I in getting this issue to arbitrali:m becam1e of the Uments understanding that the griever would first seek redre8s throug~ the Human Rights Commission. In fact, - .- the only reason the Union did ask that a hearing be scheduled was in respome to the Employer's letteref Novetn.l:er SO, 1994, to the Com...'I'l'1ission in which it ft" / tockthe position that it would be more appropriate for the matter to be heard --- uncier the LaDom' Be~ Act R.S.O. 19S0. c. L.2 provisions than the Human \ __ Code R.5.0 1990, c. H.19. There are, argued the Urdon, several reaso."'1S for that delay The ;never was ill dming this tL.~e and was 'absent from work for much of the time invclved.She was not aware mrti! 1994 that theCo~"'!USSion wculci .defer to arbitration and that the Employer would support that decision. If the Board agrees that the union did net comply with the provisions of the -;- - oollec1ive agreement, the Union asked the ~oard. to exercise its discretion under the Labour Rele.1i~ Act to extend. the time limits. That Act gives the Board broad powers, including the follOWing: -- . 13 - 8. JttdBd1ctkm8Dd pon_ - An arbitrator or board of arbitration shall make a 1inal and. conclUsive settll'llI)ent of the c:Uf[erences between the parties and, for that purpose, has the fonewing powem: - l. To determine the nature of the differences in order to address ,- their real substance, -- 2. To detennme iill quest10ns of fact or law that BIise, 3. To interpret and apply the requirements of humanriqhts and other employment-related statutes, despite any conflict between those requirements and the terms of the collective agreement... (8.3) Roft'"'~ of time. - An arbitrator or board of arbitration may extend the time for any step in the gIievance or ar.b.ittaDon procedure under a collective agreement, despite the expiration of time, if he, she or it is ~ti!rl'iM that there are rea1'onl'l r,le' grounds for the extension and that the opposite party will not, be substantially prejucUced by the extension. \ In this case, argued the Union, there is no evidence of prejudice to the .- Employer. It has not shown that some or all of the documents no longer exist. Mr. Naismith testi.fied that no serious attemp~ have been made to find the only witness who is no longer employed at the Employer. -" \ In support of its position the Union relied on the following cases: Be United Foed and Commen:ial Warkms Urden, Loca117S/633 and Peztrtj' Lane Food Markets Ltc!. (1993), 1993 O.L.R.B. Reports (March) 230; Re Reg'EmCY Tawem Hotel Ltc!. and Hotel and Club Employees' Union Local 299 (1913), 4 LAC. (2d) 440 (Schifi), Be CN/CP Telecommunicaticms and Canadian JbJB~91ion of -- - :- - Comnnmicaticms and Jmied Workms (1981), 3 LAC. (3d) 54 (Roberts) and Be Beckem Milk and TeamstBm Union, Loca1647 (1978), 19 LAC (2d) 217 (Burkett) . \ I - 14 ~1'l - - T'ne o:Jjections to our jmisdiction are that - - l. The gri..cvances have been settled or withdrawn and the Union is estopped from attempting to restim!ct them. I f'\ T"ne g:L~!' did not comply with the mandatory time limits set out I ~ I i:'. the grievance procedure and therefore, according to article I I I 27.13, the grievances are deemed to have been withdrawn. 3. m the alternative, the Decc...mber grievances did not go through the second step of the grievance procedure and therefore must be I I dismissed.. I I I 4- 'fnere !-12S been an inordinate delay in the processing of these grievances. .- .. The grLcvor filed a human rights complaint in April of 1991, that o. deals with the same issue as ,these grievances.. This board has no jurisdi.-"1ion as long as the griever is pursUing these issues in that forum. -., \ Dea;hg with the last objection fiIst, there is no question that the griever is e:tt!tie:: to proceed with the grievance and the human rights complaint ~~neousiy She is not required to elect one over the other. Indeed, until re~n: amendments to the Crown Emplcyees Collective Bargai:ning Act 1993 I a.."l:i tns Public Service Act RS.O 1990, c. P 47, it was accepted by some boards I ! I , 0: a::btration that issues raised in a. ?utnan rights complaint were beyond theit- :- - jt!:isd--tion. In the absence of an express requirement that a griever elect one I I I I fo:tm: aver another, we are not prepared to decline jurisdiction of her grievance o:!. t!rls basis. I I I ! . -.!: ~ IS --- We are of the opinior., hoyy=v~, E:cpioyets ~~ OIl the ~...E ci ~- settlement must prevail. TIle::st t=ievance was filed in 5eptem~... of ..9SC, anp. - alleged that the Employe:- ha:::. 'Violamd article!:.;:,y f:::frm; to allow ::te ~~ to- return to work. At the A;nill_. 1991, preheatin; me pa:tiss ~~c:. t:: agree on a return to work ~ bu: "9F....re frns::-~= by the ia::: t. ...:: t."t= ~.::.v...~s return cate was unce:--=_ Ms. Ku:= testifiec !-:~- the de:ails :::::lS :'l:~. were never fbalisec. and the ~"''i- -e was not se~ 'fm: evi~n-c, h:Jw;,,=:, was clear tha1: there was a:l ?~cTtt tna: the ~ w:oDlC. refl~ t:: ~~;: as soO!'. as she was able, but no soons: fr~ 1992. Tns lStte: 0: April2S. 199_ ....~. the - exception of 'Jc~igna.tin; a ne..:.l...cJ. ?...::son to "tr~!l:i the review sesslO!:S ~d agreeing on ~ date oi rem=., suggests that me details of the :,:~. we:; 'Virtually resoivsd. Tne lette:, nuLw~tandin~ Ms. Xmttz' evj~-c, also -- requests that the grit:.Cl:':~-e be adjo:.i:lled siDe die ~g co:::;Jls:tO:: == the \ rehabilliation period" IT'he -~ ...,,:lSisten: w::: th~.. "'=:ree~c- -=~c..: to .. :"-- -, -......,. -. ~ . --~"'- work ill janua...ooy of 1992 an:: ==ma~.ec at won:: ....C jtme of fr~ ~ ~;2:. There was no evidence tha: tle Union or the :-iev::r eve: a.::mse:: :us ='~loyer that it considered the ~-.T'.s c: the a.greemen! ha:. no: bec-n InS: := t'".a: t or she intended to pmsue the ~...yc. .~. Wmle it is =:Ie tha" there W'aS n-CV'e: a fo~mal notice of withdrawal of the Osvan...~j in the ...:.....~~l~ ci ~ :::ase. i: was -- - . - reasonable for the E.m;Jlo~ to believe that i! ~..: been settle:.. 0:= ~=n on this is buttressed by the ia::: ~~ ths grLevor ffie= a Tievan-""e ~~,... De=smbe: 5, 1991, tha! is identical in ~~~ to the fc:::=: TL=va.nce. ~ ~-,c!l::es I ~ - 16 allege the Employer violated article A by of the collective agreement by discriminating against the griever on the basis of handicap. Both grievances - ,- ask, by way of remedy, for an order that the employer cease these - discriminatory practices and that the, griever be retumed to work on a rehabilitation programme approved by her doctor. The earlier grievance asks for retroactive wages and benefits to January 1, 1990, the latter asks for full retroactive salary and benefits without reference to time. The filing of the December 5, 1991, grievance indicates, in our view, a belief on the part of the griever at least, that the September 18, 1990, grievance was no longer , , \ - .- outstanding We base our decision on the evidence before us. We reject the Employer's argument that.,grievance had been specifically withdrawn. We - - ,/" accept"the Union's position that it was clerical error which was immediately -., corrected by the Union. \ For the same reasons we find that the 1991 grievances have been settled Although it is clear that the Union never formally withdrew' those grievances, it is equally clear that the parties agreed upon a rehabilitation programme, the successful completion of which would resolve the grievances. There was no dispute that the griever did participate in that rehabilitation programme, -- ;- - although it was not clear whether she actually finished it In any event, no further discussion took place between the Employer and the Umonor the grievorregarding -either the rehabilitation pro~e or the grievances' for - I ! ~- ! e ~ 11 - approximately two years when the Employer was advised that a prehearing had been scheduled. During the interval, the Employer, with reason, believed the - ,- grievance had been settled. 'If, as the Union asserts, the rehabilitation - - programme was not a Success and, if it considered the matter outstanding, it was the Union's obligation to advise the Employer of its position. It did not in either case and the consequences of the failure to do so leads us to the inescapable conclusion that the grievances were settled The parties agreed that the grievances would be held in abeyance until the completion of the rehabilitation programme. When the~habilitation progranunes were completed, - .- successfully or otherwise, the onus was on the Union to advise the Employer that it 'intended to pursue. the grievances. In the absence of any such notice, the agreement to hold the matters in abeyance had expired, leaving the grievances --.. settled. \ In our view, the Employer might have also been led to believe that the grievances were settled when neither the grievor nor the Union made any overtures after the- griever was sent the April 6, 1992, letter advising her that she - would be ~eclared surplus. We would ha~ thought that if she believed the . -- Employer had an obligation to retum her to her fonner position with :- - accommodation, that letter would have prompted some discussion. Even if we were persuaded otherwise, we do not believe the grievances should , \ 18 proceed for other 'reasons. The amendments to the Crown Employees Collective Bargaining Act give boards of arbitration broad powers to relieve - ,- against technical objections to the timely processing of grievances. Thatpower..- however is discretionary and depends, in large measure, on the circumstances of the individual case. The most often quoted case in this regard is that of Beckers Milk (supra) In that case, at page 220, the board stated that, in the exercise of its equitable discretion under s37 (Sa) of the Labour Relations Act It5.0.1970, c. 232, it should have regard to the following. (i) the reason for the delay given by the offending party; : eii) the length of the delay; \ - .- (ill) the nature of the grievance. It went on to say. ..If the offending party satisfies an arbitrator, notwithstanding the delay, that it acted with due diligence, then if there has been no -_0. prejudice the arbitrator should exercise his discretion in favour of extending the time-limits. \ If, however, the offending party has been negligent, or is otherwise to blame for the delay, either in whole or in part, the arbitrator must nevertheless consider the second and third factors referred to above in deciding if reasonable grounds exist for an extension of the time-limits. ~ In applying those factors to the instant case, the Union has argued that there are valid reasons for the delay; that is, 111e complexity of the issues, the protracted efforts to retum the griever to work, the fact the griever was absent for much of - -- that time due to her disability and, finally, the griever's belief that the Employer -- had agreed to adjourn her grievance pending the result of her human rights complaint Those reaso~ do' not explain why, after each rehabilitation period, neither the grievor nor the Union advised the employer that it was unsatisfied \ 19 with the results and considered the grievances to be outstanding. There has been much written about the benefits to the parties in dealing expeditiously with - ,- disputes. It is important for them to know their legal rights, obligations and - - liabilities. We are not convinced that due diligence was exercised as required in the Beckem Milk award. While we agree that it was not unreasonable for the grievances to involve a protracted period of time, we would not agree that in the circumstances of this case, there are reasonable grounds to extend the time limits. \ -.- Returning to the factoIS to be considered in Beckem Milk, there were no reasons given in the instant case for the delay and the length of the delay is - significant. There was no evidence of prejudice to the Employer. Nevertheless, --.. even considering the serious nature of the grievances, we would not be inclined, given all of the facts of this matt~r, to exercise our equitable discretion to extend the time limits. It would be unfair to the Employer to do so. For all of those reasons the grievances are dismissed. Dated at Toronto, this 24 day of July 1995. -- - L~ "I Dissent" ~~ - \~~ (dissent to follow) Mr. J. Canuthers :Mr. D Montrose Vice-Chair Union Nominee Employer Nominee