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HomeMy WebLinkAbout1996-2804.Wilson.02-11-28 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2804/96 UNION# 97B307 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Wilson) Grievor - and - The Crown In RIght of Ontano (Mimstry of Health) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE UNION Graham WillIamson Koskie Minsky BarrIsters and SOlICItorS FOR THE EMPLOYER Andrew Baker Counsel Management Board Secretanat HEARING January 24 and November 8 2002 2 AWARD ThIS decIsIOn deals wIth a prelImInary motIOn made by counsel for the employer to dIsmIss the gnevance before me on two bases (1) that It was not tImely filed, and (2) that It IS barred by a pnor settlement. Facts On October 18 1996 the gnevor Douglas Wilson, filed the folloWIng gnevance I gneve that because of the Inhumane way my Mimstry officIals and management treated me dunng my Illness, I am holdIng them responsIble for me gOIng on L T I.P and C.P.P dIsabIlIty I hold them fully responsIble for all the stress and harassment whIch led to my M.I. [mental Illness] and severe mental depressIOn. AccordIng to my doctors In recent medIcal documentatIOn I wIll never work agaIn. To be counseled and rehabIlItated for any work wIll never happen because of my health. It IS undIsputed that all of the alleged events whIch are the subJect of the 1996 gnevance - the alleged IncIdents of Inhumane treatment, stress and harassment - occurred pnor to November 1988 In a March 12, 2001 statement of partIculars, the events whIch are the subJect of the gnevance are set out. Solely for the purposes of the Employer's prelImInary motIOns, those partIculars are accepted as true The partIes' also submItted two wIll-say statements, one by the gnevor and one by Don Coutts, who has served In human resources wIth the Mimstry of Health and Long Term Care SInce 1973 Dunng the relevant penod, Mr Coutts served In a human resources capacIty for the Windsor Central Ambulance CommumcatIOns Centre, at whIch the gnevor was employed. To the extent that the two wIll-say statements vaned as to dates of certaIn events, the Umon agreed that Mr Coutt's eVIdence should be preferred. 3 The partIculars, combIned wIth the wIll-say statements, show that the events whIch are the subJect of the 1996 gnevance began In March 1986 when the gnevor learned that hIS then-four year old son had a braIn tumor whIch reqUIred surgery The gnevor took tIme off work to attend the surgery and was absent from March 19 to March 28 1985 Unfortunately the gnevor's son had to be re-admItted on Apnl 12, 1985 because of a lIfe-threatemng complIcatIOn, and the gnevor took addItIOnal tIme off work from Apnl12 to Apnl 28 1985 The gnevor requested compassIOnate leave for hIS absences but that request was turned down on July 5 1985 A gnevance followed, whIch was resolved through a settlement In June of 1986 Mr Wilson, who had used vacatIOn and lIeu tIme to cover hIS absence receIved the vacatIOn tIme and credIts back. In July 1985 the gnevor receIved a letter from hIS manager statIng that, although he realIzed that Mr Wilson was under stress, he was concerned about hIS abIlty to attend work on a regular basIs Mr Wilson spoke to hIS Umon about the letter a gnevance was filed and resolved at stage II of the gnevance procedure on September 4 1985 The letter was removed from Mr Wilson's file AccordIng to the partIculars, Mr Wilson was undergoIng tremendous emotIOnal stress due to these proceedIngs and the harassment at work by hIS manager Mr Wilson's manager had refused hIm earlIer ShIft changes and was pressunng hIm to take hIS lIeu tIme by June 15 1986 In vIOlatIOn of the collectIve agreement. On May 12, 1986 the gnevor's supervIsor threatened hIm that management would buIld a negatIve case on hIm to make It easy to suspend hIm. On May 16 1986 Mr Wilson's doctors gave hIm a letter saYIng that he should not be workIng due to "severe agItated depressIOn" and he remaIned off work untIl August 14 1986 4 He then sought compaSSIOnate leave under ArtIcle 30 of the collectIve agreement for one day on October 9 1986 to accompany hIS son for aCT scan. In response, he was reqUIred to answer a number of dIfferent questIOns about the legItImacy of hIS request by vanous managers before they would consIder It. On January 19 1987 he was granted compassIOnate leave, but not under ArtIcle 30 (whIch was leave wIth pay) but rather under ArtIcle 54 (whIch reqUIred hIm to use hIS vacatIOn credIts to pay for the leave) On February 3 1987 Mr Wilson filed a gnevance on thIS matter allegIng that the demal of hIS request "for no reason" caused hIm "mental stress and anxIety" and has "made me absent from work on sIck leave " On August 13 1986 Mr Wilson filed a complaInt wIth the Ontano Human Rights CommIssIOn agaInst hIS employer complaInIng of harassment by hIS manager because of hIS handIcapped son The substance of the complaInt IS almost IdentIcal to paragraphs 2, 3 4 5 6 7 and 8 of the statement of partIculars filed In the Instant gnevance On January 23 1987 an unfortunate IncIdent occurred at work dunng hIS ShIft for whIch he was held responsIble His doctor removed hIm from work effectIve January 26 1987 By letter dated February 3 1987 Mr Wilson was advIsed that a pre-dIscIplInary heanng would be held to advIse hIm of the facts of the InVestIgatIOn concermng the IncIdent on January 23 1987 On February 6 1987 Mr Wilson went to the emergency room of the local hospItal due to depressIOn and anxIety and saw the socIal worker The socIal worker Issued a report dated February 6 1987 whIch stated that the gnevor's dIfficultIes at the workplace were caused by the "non-empathetIc" response of hIS needs anSIng from hIS son's Illness 5 By letter dated February 13 1987 the Mimstry of Government ServIces and Employee CounselIng dIsclosed (wIth Mr Wilson's consent) that he was a clIent of the VocatIOnal RehabIlItatIOn Program In the Employee CounselIng ServIces and concurred wIth the recommendatIOn that Mr Wilson should not be workIng at that tIme Mr Wilson's condItIOn worsened and hIS physIcIan advIsed hospItalIzatIOn for acute agItated depressIOn, but Mr Wilson wIshed to attend hIS pre-dIscIplInary heanng on February 17 1987 On February 20 1987 Mr Wilson's physIcIan advIsed that he was alarmed by the gnevor's condItIOn folloWIng the pre-dIscIplInary meetIng and stated that subJectIng hIm to It was a form of mental cruelty On March 11 1987 the DIrector of the Ambulance ServIces Branch wrote to Mr Wilson that hIS actIOns on January 23 1987 were subJect to dIscIplIne, but that hIS physIcal and mental health were cause for concern and mIght be mItIgatIng cIrcumstances In thIS matter He then ordered Mr Wilson to attend a mandatory physIcal and psychIatnc reVIew Mr Wilson's physIcIan obJected to thIS reVIew on the basIs that It would be detnmental to Mr Wilson's mental and physIcal well-beIng, and he referenced the numerous documents that he had provIded IndIcatIng the seventy of Mr Wilson's condItIOn. On March 21 1987 Mr Wilson filed a gnevance agaInst the employer for vIOlatIng hIS nghts and JeopardIZIng hIS health and safety by caUSIng unJust mental cruelty and harassment. 6 In March, 1987 Mr Wilson was assessed by a psychIatnst specIalIst at the Hotel DIeu HospItal In Windsor and dIagnosed as suffenng from a depressIve reactIOn wIth agItatIOnal and obsessIOnal features In October 1987 Mr Wilson had a heart attack. He then went on what was referred to as "Long Term Income ProtectIOn" benefits On or about October 13 1987 he was asked to turn In hIS keys, umforms and gate pass by hIS supervIsor On November 30 1987 the gnevor was suspended wIthout pay for 20 days for hIS actIOns on January 23 1987 In the letter the RegIOnal Manager claimed that the delay In the dIscIplIne was In VIew of Mr Wilson's health problems Because the gnevor was not attendIng work, however the suspenSIOn was not ImmedIately served. On December 21 1987 Mr Wilson gneved the dIscIplIne On December 29 1987 Mr Wilson was referred for a cardIOvascular assessment folloWIng hIS release from the hospItal He was dIagnosed as a patIent WIth coronary sclerotIc heart dIsease, convalescIng from a recent extensIve antenor wall Infarct. By letter dated January 18 1988 Mr Wilson's physIcIan wrote to the Gnevance Settlement Board adVISIng that Mr Wilson's recovery was beIng delayed due to the delays In dealIng wIth hIS gnevances On February 2, 1988 Mr Wilson applIed for a specIal compassIOnate leave under ArtIcle 30 for hIS absence from May 15 to August 24 1986 dunng hIS first epIsode of depressIve Illness 7 On Apnl 13 1988 Mr Wilson's physIcIan wrote to the manager of the Windsor Central Ambulance DIspatch Centre adVISIng that Mr Wilson could return to work on May 16 1988 as a radIO dIspatcher wIth the lImItatIOn that he work no more than 24 hours a week, no more than 8 hours per day and not be reqUIred to lIft more than 20 pounds The record IS not clear whether the gnevor actually returned to work at thIS tIme On June 13 1988 the Gnevance Settlement Board began a heanng on Mr Wilson's gnevances and five addItIOnal dates were set for November 1988 On July 25 1988 the gnevor's doctor advIsed that Mr Wilson was "able to resume regular dutIes" On August 8 1988 the DIrector wrote to the gnevor adVISIng hIm that as a result of hIS clearance to return to work, hIS benefits under the Long Term Income ProtectIOn plan would cease, effectIve August 5 1988 and on that date he would be declared surplus under then ArtIcle 24 of the collectIve agreement. No vacanCIes were IdentIfied for the gnevor and he was placed on a leave of absence wIthout pay untIl August 19 1988 when he exercIsed hIS semonty nghts to bump another employee from an ambulance dIspatcher posItIOn. Mr Wilson filed a gnevance dated July 29 1988 concernIng thIS matter In a settlement dated November 3 and November 16 1988 to settle "all outstandIng matters between the Gnevor and the Employer" all of the gnevor's outstandIng gnevances, as well as hIS complaInt before the Ontano Human RIghts CommIssIOn, were resolved. The settled gnevances Included the February 3 1987 gnevance (regardIng the demal of compassIOnate leave under ArtIcle 30) the March 21 1987 gnevance (regardIng the allegatIOn that the employer was JeopardIZIng the gnevor's health and safety to the extent of caUSIng unJust mental cruelty and harassment) the 8 December 21 1987 gnevance (regardIng the 20-day suspensIOn) the July 29 1988 gnevance (regardIng hIS beIng declared surplus) and the August 13 1986 complaInt before the Ontano Human Rights CommIssIOn. The dIscIplIne was reduced to a five-day suspenSIOn and the letter of dIscIplIne was amended, wIth a twelve-month sunset clause for the revIsed letter of dIscIplIne The gnevor was compensated for the penod August 8 1988 to the date of hIS return to work on August 19 1988 and any vacatIOn credIts he used dunng that penod were restored. In addItIOn, the gnevor was paid the sum of$158 70 In early March 1989 the gnevor went off work wIth chest paIn. He was off on short-term sIckness benefits from March 6 1989 to August 30 1989 EffectIve August 31 1989 he went on L T.I.P benefits, floWIng from hIS InabIlIty to perform hIS home posItIOn. EffectIve August 31 1991 he contInued on L T.I.P benefits, floWIng from hIS InabIlIty to perform any occupatIOn. Also dunng thIS tIme, Mr Wilson began to receIve a Canada PenSIOn Plan DIsabIlIty PensIOn. He contInues to receIve monthly benefit cheques from both plans In Mr Wilson's wIll-say statement, he relates hIS medIcal hIStOry SInce March 1989 His last surgery for hIS heart condItIOn appears to have been In 1990 although complIcatIOns arose In late March 1994 whIch reqUIred an 8-day hospItalIzatIOn. In addItIOn, hIS chest surgery resulted In a ventncle hernIa whIch reqUIred three operatIOns between 1993 and 1995 Further Mr Wilson's father developed an abdomInal aneurysm and underwent surgery for whIch he was hospItalIzed for 35 days Subsequent to hIS release, he suffered a senes of small strokes, and ultImately passed away In December 1994 9 Shortly thereafter the gnevor's mother-In-law became cntIcally Ill, and ultImately passed away In June 1995 The gnevor states that health problems prevented hIm from filIng a gnevance pnor to 1996 As of 1996 the gnevor ceased hIS weIght gaIn, and In fact, reduced hIS weIght, and got hIS dIabetes and blood sugar levels under control The gnevor further states that In 1995 he met wIth a former co-worker Gerald Redmond who subsequent to a heart attack, had medIcal restnctIOns whIch IndIcated that he was only able to work 8 hours per day not the twelve hours per day reqUIred by the Employer The Gnevor understood that the Employer had refused or been unable to take Mr Redmond back on a reduced work week. AccordIngly Mr Redmond applIed for LTIP but hIS claim for benefits was reJected on the basIs that he was fit and able to perform 8 hours work per day The gnevor attended wIth Mr Redmond at the Gnevance Settlement Board, and understands that a medIated settlement was reached whIch awarded Mr Redmond a lump sum payment. As a result of thIS settlement and hIS dIscussIOn wIth Mr Redmond, the gnevor began to wonder If he was elIgIble to file a gnevance of any sort. The gnevor states that he first spoke to the Umon about the possIbIlIty of filIng a gnevance In October 1996 and that the gnevance was filed shortly thereafter The wIll-say statement ofMr Coutts, however refutes the tImIng of the gnevor's recollectIOn of the gnevance of Mr Redmond. AccordIng to Mr Coutts, and the documentatIOn he provIded, the only gnevance filed by Mr Redmond was dated July 29 1988 (the same date as the gnevance filed by the gnevor) It was also sIgned by the gnevor as Umon steward, and It was IdentIcal to the July 29 10 1988 gnevance filed by the gnevor Further Mr Redmond's gnevance was settled at the GreIvance Settlement Board on August 8 1990 not In 1995 The gnevor acknowledged that he was prevIOusly actIve In the Umon, and held Umon offices In the Late 1970s and early 1980s The posItIOns held were steward, secretary-treasurer and local presIdent. He states that hIS last posItIOn expIred In 1981 AccordIng to Mr Coutts, however the gnevor was known to hIm as a umon steward In the late 1980s, as eVIdenced by hIS sIgmng Mr Redmond's gnevance In that capacIty and hIS attendIng the Stage II meetIng for the gnevance of Mr Redmond. Further he states that Mr Wilson was elected as an officIal delegate to attend a RegIOnal Wage NegotIatIOn Demand SettIng meetIng on September 16- 17 1988 and was elected as DIrector of the Ambulance DIvIsIOnal Employee RelatIOns CommIttee Team for RegIOn 1 for the Umon. Decision ArtIcle 22.2 1 of the relevant collectIve agreement (the 1994-98 agreement) provIdes as follows It IS the mutual desIre of the partIes that complaInts of employment be adJusted as qUIckly as possIble and It IS understood that If an employee has a complaInt, the employee shall dISCUSS It WIth the employee's ImmedIate supervIsor WIthIn thIrty (30) days after the CIrcumstances gIVIng nse to the complaInt have occurred or have come or ought reasonably have come to the attentIOn of the employee In order to gIve the ImmedIate supervIsor an opportumty to adJust the complaInt. ArtIcle 222 1 has been held to reqUIre an obJectIve standard, as opposed to a subJectIve standard, In aSseSSIng whether a gnevance IS tImely OPSEU (Narine-Singh) and MinistlY of Education and Training GSB No 0035/98 (LeIghton) OPSEU (Joly) and Ministry of the Solicitor General and Correctional Services GSB No 1009/97 (Brown) OPSEU (Upshaw) and MinistlY of Health, GSB 11 No 2163/97 (Abramsky) Under thIS standard, It IS not when the gnevor actually knows he or she has a complaInt, but when, on an obJectIve basIs, the CIrcumstances gIVIng nse to the complaInt occurred or came to or "ought reasonably have come to the attentIOn of the employee " In thIS case, I conclude that the gnevance was not filed wIthIn 30 days of the CIrcumstances gIVIng nse to the complaInt, or came to or ought reasonably have come to the gnevor's attentIOn, but Instead, was filed years later The October 16 1996 gnevance alleges as follows I gneve that because of the Inhumane way my Mimstry officIals and management treated me dunng my Illness, I am holdIng them responsIble for me gOIng on L T I.P and C.P.P dIsabIlIty I hold them fully responsIble for all the stress and harassment whIch led to my M.I. [mental Illness] and severe mental depressIOn. AccordIng to my doctors recent medIcal documentatIOn I wIll never work agaIn. To be counseled and rehabIlItated for any work wIll never happen because of my health. There IS no dIspute that the CIrcumstances gIVIng nse to the complaInt In thIS matter all took place before November 1988 The gnevance alleges a course of conduct by the employer begInmng In March 1985 and contInuIng untIl November 1988 whIch caused hIm to become mentally and physIcally III That the gnevor was aware of a causal lInk between the employer's alleged actIOns and hIS detenoratIng physIcal and mental well-beIng IS clear from a number of the gnevances whIch he filed dunng thIS penod of tIme, partIcularly the March 1987 gnevance whIch alleged that the employer vIOlated hIS nghts and JeopardIzed hIS health and safety by caUSIng unJust mental cruelty and harassment. Under these facts, the gnevor knew about the CIrcumstances gIVIng nse to the complaInt by November 1988 12 The Umon argues, however that what the gnevor dId not know then was that hIS Illness would preclude hIm from ever workIng agaIn. His gnevance asserts that the Mimstry's conduct dunng hIS Illness was the dIrect cause of hIS "gOIng on L T .I.P and C.P.P dIsabIlIty" and hIS never beIng able to work agaIn. If those "facts" constItute part of the "CIrcumstances gIVIng nse to the complaInt" the questIOn becomes - when dId those CIrcumstances anse, when dId they come to the gnevor's attentIOn, or when should they "ought reasonably have come to the attentIOn of the" gnevor? Based on the eVIdence presented, the gnevor went on L T I.P and C.P.P dIsabIlIty and knew that he would not be able to work agaIn as of August 31 1991 at the latest. On that date, the gnevor was determIned to satIsfy the more stnngent standard for dIsabIlIty under L T I.P whIch, as set out In ArtIcle 70 2 4 of the collectIve agreement, reqUIred that he be "unable to perform the essentIal dutIes of any gaInful occupatIOn for whIch he or she IS reasonably fitted by educatIOn, traInIng or expenence" Clearly It was In August 1991 when the defimtIOn for receIpt of L T.I.P changed from beIng totally and permanently dIsabled from hIS own occupatIOn to beIng totally and permanently dIsabled from hIS own or any other occupation that the final "cIrcumstance" gIVIng nse to the gnevance arose There was no eVIdence presented of any changed CIrcumstances or new medIcal documentatIOn or dIagnoses In 1996 or Indeed at any tIme after August 1991 Under the facts presented at the heanng, the gnevor knew as of August 1991 that he was totally and permanently dIsabled from hIS own or any other occupatIOn. Consequently even assumIng that the "CIrcumstances gIVIng nse to the complaInt" Include hIS gOIng on L T I.P and C.P.P dIsabIlIty and hIS InabIlIty to ever work agaIn, all of the CIrcumstances gIVIng nse to the complaInt occurred, came to hIS attentIOn, or ought reasonably have come to the attentIOn of the gnevor by August 31 1991 at the latest. 13 In so rulIng, I cannot accept Umon counsel's argument that It was not untIl the gnevor's health started to stabIlIze In 1994 to 1995 that the CIrcumstances gIVIng nse to the gnevance arose Counsel submItted that the gnevance Involves more that Mr Wilson's gOIng onto L T I.P and C.P.P dIsabIlIty but Includes all of hIS health problems and the fact that he was never gOIng to work agaIn. The wIll-say statement ofMr Wilson, however does not IndIcate that hIS health dId not stabIlIze untIl 1994-1995 The eVIdence submItted shows that there were substantIal penods of tIme - 1991 and 1992 - wIthout any maJor new health Issues an SIng. From the eVIdence submItted, those years appear to be a penod of stabIlIty In addItIOn, there IS no eVIdence of any new "cIrcumstance" relevant to hIS gnevance whIch arose after August 3 1 1991 There IS no eVIdence of anythIng new In regard to hIS InabIlIty to work that occurred after that date Although hIS gnevance states that hIS "doctors In recent medIcal documentatIOn [state that] I wIll never work agaIn" that was not a new CIrcumstance whIch first arose In 1996 He first became aware of that unfortunate fact - at the latest - by August 31 1991 There IS no eVIdence to support the gnevor's assertIOn that he was Incapable of filIng hIS gnevance untIl November 1996 The medIcal InfOrmatIOn contaIned In Mr Wilson's wIll-say statement does not support that conclusIOn. WhIle It does It establIsh that there were substantIal pen ods of tIme that he due to hospItalIzatIOns, operatIOns, or personal cIrcumstances, may not have been able to file hIS gnevance there were clearly other penods when he could have done so but dId not. 14 Nor was Mr Wilson unaware of hIS nght to file a gnevance That IS eVIdent from hIS earlIer tImely filIng of gnevances about some of the CIrcumstances Involved In October 1996 gnevance, as well as hIS actIve role as a umon steward and local presIdent. There IS also no basIs to conclude that the gnevor learned anythIng In 1995 from the settlement of the gnevance of Mr Redmond. The eVIdence shows that Mr Redmond's gnevance was settled In 1990 not In 1995 and that the gnevor was aware of that gnevance from ItS InCeptIOn on July 29 1988 Mr Redmond's gnevance was IdentIcal to the gnevance filed by Mr Wilson on the same date and that gnevance was resolved by Mr Wilson In the November 1988 settlement. Consequently on the specIfic facts presented, I conclude that the October 16 1996 gnevance was filed over five years after the last CIrcumstance gIVIng nse to the gnevance arose The Issue then anses whether there IS any basIs to exerCIse my dIscretIOn under SectIOn 48(16) of the Labour Relations Act to relIeve agaInst the tIme lImIts contaIned In the partIes' collectIve agreement. SectIOn 48(16) provIdes arbItrators wIth the dIscretIOn to extend the tIme lImIts found In a collectIve agreement, If there are reasonable grounds for the extensIOn and the OpposIte party wIll not be substantIally preJudIced by allowIng the gnevance to proceed. The partIes agreed that the factors to be consIdered In decIdIng whether there are reasonable grounds for extendIng the tIme lImIts were outlIned InRe Becker Milk Co and Teamsters Union (1978) 19 LAC (2d) 217 (Burkett), at p 220 The exerCIse of the eqUItable dIscretIOn vested In an arbItrator under the Act reqUIres a consIderatIOn of at least three factors These are (I )the reason for the delay gIven by the offendIng party (iI) the length of the delay (ill) the nature of the gnevance If the offendIng party satIsfies an arbItrator notwIthstandIng the delay that It acted wIth due dIlIgence, then If there has been no 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 15 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 thIS case, there was no valId reason presented for the substantIal delay In filIng thIS gnevance As noted above, there was no eVIdence that the gnevor was Incapable, physIcally or mentally from filIng the gnevance untIl October 1996 CertaInly there were pen ods of tIme when he could not have filed the gnevance, but there were also tImes, long before 1996 when he could have done so Under the facts presented, Mr Wilson dId not act wIth due dIlIgence I also find that the more than five-year delay In thIS case was truly extreme In OBLEU (Gamble) and LCBO GSB No 1635/96 (Gray), a delay of "nearly 24 months" was found to be "extreme" In OPSEU (Rondeau) and Ministry of the Solicitor General and Correctional Services GSB No 217/97 (LeIghton) at p 8 a 26 month delay was determIned to be "so long that It would not be appropnate to exerCIse the dIscretIOn under subsectIOn 48(16) of the Labour RelatIOns Act to extend the tIme lImIts" Here the delay IS over five years There was no case cIted by the Umon whIch comes even close to allowIng a delay of thIS magmtude The maIn thrust of the Umon's argument was that the nature of thIS gnevance compelled a heanng on the ments There IS no questIOn that the October 1996 gnevance Involves very senous allegatIOns and very senous Issues The gnevance essentIally claims that the employer through ItS actIOns, ruIned Mr Wilson's mental and physIcal health to the extent that he can never work agaIn. But the nature of the gnevance IS only one factor and It sImply cannot, by Itself, lead to a conclusIOn that there are reasonable grounds to extend the 30-day tIme lImIt negotIated by the partIes In theIr collectIve agreement for a five year penod. 16 In other cases cIted by the Employer arbItrators have declIned to exerCIse theIr JunsdIctIOn to extend the tIme lImIts, despIte senous allegatIOns of a long-standIng pattern of dISCnmInatIOn, harassment and mental cruelty or sexual harassment. See e g OPSEU (Joly) and Ministry of the Solicitor General and Correctional Services GSB No 1009/97 (Brown) (a 10-month delay) OPSEU (Rondeau) and Ministry of the Solicitor General and Correctional Services supra (a 26-month delay) I further conclude that the employer would be substantIally preJudIced by an extensIOn of the tIme lImIts In thIS matter The employer's actIOns whIch form the basIs of the gnevance all took place before 1988 eIght years before the gnevance was filed. The passage of so many years may be vIewed as presumptIvely preJudICIal As noted by Vice-Chair Gray In OBLEU (Gamble) and LCBO supra at p 13 even where there IS no IdentIfiable specIfic preJudIce resultIng from the delay the preJudIce caused by delay may be more subtle The memones of wItnesses who are stIll avaIlable wIll nevertheless have faded, partIcularly If there has been no notIce that they may have to testIfy about those memones As a result, theIr testImony may be or may seem less relIable, and thence less persuaSIve than It would have If there had been tImely notIce of the dIspute Counsel for the Umon argues, however that thIS sItuatIOn does not apply here because there were earlIer gnevances, so the partIes were on notIce that the employer's actIOns were beIng challenged. ThIS argument, however Ignores the fact that those gnevances were settled In November 1988 and eIght years went by before the October 1996 gnevance concermng those same factual matters was filed. Under thIS cIrcumstance, there was no tImely notIce that wItnesses mIght be reqUIred to recall these events QUIte to the contrary the settlement of those gnevances would have led the IndIVIduals Involved to the OpposIte conclusIOn. 17 AccordIngly for the reasons set forth above, I conclude that thIS IS not an appropnate case to exercIse my dIscretIOn under SectIOn 48(16) of the Labour Relations Act to extend the tIme lImIts for filIng a gnevance Further because I conclude that the gnevance was not tImely filed, I need not address the Employer's other argument that the 1996 gnevance IS barred by the November 1988 settlement. To conclude 1 The October 1996 gnevance was not tImely filed. It was not filed wIthIn 30 days of when the CIrcumstances gIVIng nse to the complaInt occurred, or came to or ought reasonably have come to the gnevor's attentIOn, but Indeed, was filed more than five years later 2 There are not reasonable grounds to extend the tIme lImIts set forth In the partIes' collectIve agreement under SectIOn 48(16) of the Labour Relations Act and to do so would substantIally preJudIce the employer 3 AccordIngly the gnevance must be dIsmIssed as It was not tImely filed. 4 In so rulIng, I need not consIder the Employer's other argument that the 1996 gnevance IS barred by the November 1988 settlement. Issued at Toronto thIS 28th day of November 2002 ~ RandI H. Abramsky Vice-C air