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HomeMy WebLinkAbout1997-1455PALAZZO98_07_08 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (416) 326-139(5 GSB # 1455/97, 1456/97 OPSEU 97F008, 97FOO9 IN THE MA TIER OF AN ARBITRA nON Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before . THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (palazzo) Grievor - and - The Crown m RIght of Ontano (St. Lawrence & DIstnct Ambulance ServIce Ltd.) Employer BEFORE R.H. Abramsky Vice-ChaIr FOR THE M. Keys UNION Gnevance Officer Ontano Public ServIce Employees Uruon FOR THE M. Horan EMPLOYER Counsel Fraser & Beatty Bamsters & SoliCItors HEARING May 6, 1998 i PRELIMINARY AWARD Two grIevances were filed by the grIevor, GUlseppe Palazzo, on October 25, 1997 The first contends that he was unjustly suspended on September 17, 1997 and the other alleges that he was unjustly terrmnated from employment on October 24, 1997 At the outset of the hearIng In thIS matter, the Employer raIsed a prelImmary ObjectIOn to the suspenSIOn grIevance, assertmg that the gnevance was untimely filed. In addItIOn, should that prel1mmary objection fail, It opposes the consolIdatIon of the suspenSIon and discharge grIevances Fmally, It seeks to have the heanng m thIS matter held m Toronto, rather than Ottawa as requested by the Umon. FACTS A. Facts regardmg the filing of the suspenSIOn gnevance. PrIor to ills dIscharge, the gnevor was employed as a paramediC wIth the St Lawrence and DIStrICt Ambulance ServIce, and had held that position smce 1989 On September 17, 1997 a meetmg was held at the Winchester Base, WhICh the grIevor, Local Umon PreSident Warren Brown, OperatIons Manager Myles CaSSidy, and Manager John Kibsey attended The purpose ofthe meeting was to present to the grIevor three diSCiplinary letters - two Records ofWarmng and one Suspension Without Pay - and to diSCUSS management's concerns about the grIevor's behaVIOur A diSCUSSion took place dUrIng whIch the three documents were presented to the gnevor and Local Uruon PreSident Brown. Each document contained space for three signatures one for the grIevor, the Umon representative, and the management representatIve 2 .. Local President Brown testified that after the documents were presented to them, he stated "obVIously these WIll not be sIgned and will be grIeved" to whIch Mr Cassidy replIed "we expected as much." The grIevor testIfied that he stated that he dId not agree with the dISCIplIne and that Mr Brown made It known that the documents would not be sIgned and that "we had mtentlOns on grIevmg the documents" He recalled that the Mr Cassidy replied that thIS was ok.ay, he didn't need their signatures and that all he needed to do was present the documents to them. OperatIons Manager Cassidy recalled that Mr Brown saId that the documents would not be signed but did not remember hIm saymg that they mtended to grIeve them. He did not beheve that was said He further testified that he responded that It was fine that the documents would not be signed smce the goal of the meetmg was to present the documents Mr Cassidy testified that after that diSCUSSion, the grIevor left the room, and Mr Brown stated that he would talk. the matter over WIth Mr Palazzo and see where he wanted to go WIth It. He also mqUlred whether the grIevor could take hiS suspension (48 hours) over a perIod of tIme rather than all at once, to which Mr Cassidy responded that he would consIder It, If requested Mr Cassidy was left WIth the ImpreSSIOn that Mr Brown and Mr Palazzo would subsequently dISCUSS how to proceed He stated that he expected to receIve a grIevance, not because of what had been Said at the meetmg but because Mr Palazzo, m the past, had filed several other grIevances 3 i i Local PresIdent Brown also testIfied that he had asked the gnevor If he would be agreeable to servmg the suspenSIon over tIme rather than all at once and was told "possIbly and that he then spoke to Mr CassIdy about It ThIS was confirmed by the grIevor The next day, Mr Palazzo called Mr CassIdy and asked to serve hIs suspensIOn ImmedIately At that tIme, there was no further dISCUSSIon about the dIscIplme or about the filmg of a grIevance Accordmg to both Umon PresIdent Brown and the gnevor, there was no advance plan to file a gnevance over the September 17th dlscIplme Although Umon PresIdent CassIdy knew that the meetmg was to Impose disclplme on the grIevor, he dId not know the nature of the dIsClplme He met brIefly wlth}.1r Palazzo before the meetmg, but they dId not decIde m advance to grIeve the dlsclplme Instead, they decIded to hear what the employer had to say Immediately after the meetmg, Mr Brown told Mr Palazzo to call hIm or the ChIef Steward Ifhe needed assIstance m fihng a grIevance, to whIch the grIevor responded that he would Although the gnevor could not recall the dates he served the suspensIOn and beheved that he returned to work sometIme m early October, around October 8 or 10 1997 the eVIdence estabhshed that he actually returned to work on September 28, 1997 Mr CaSSIdy explamed that the grIevor worked a "2 on, 2 off" schedule of 12 hour shIfts, and that September 17th was the second day of the two-day "on" schedule Thus, the grIevor was not scheduled to work on September 18 and 19 (dunng whIch he had called and stated that he wanted to serve the suspensIon m full ImmedIately) Consequently, he served the suspensIon on September 20 and 21 (was off September 22 and 23) and then completed the suspensIon 4 , on September 24 and 25 He was then off on September 26 and 27 and he returned to work. on September 28 According to Mr Cassidy, to be timely, the suspensIOn grIevance should have been filed on or before October 3, 1997, calculated 10 working days from the ImposItIOn of the dISCipline Both he and Manager Klbsey were exp.ectlng a grIevance to be filed and were surprIsed when It was not Based on hiS understanding of the collective agreement, any gnevance filed after that date was untImely . On October 16, 1997, the grIevor was suspended again from work for an inCident which occurred on October 15, 1997, and on October 24, 1998, he was discharged The notIce oftermmatIon referred to the prIor 48 hour suspenSIon, and stated, In part, as follows You were recently suspended for four days follOWing a downstaff for whIch the reason for the actIOn was insuffiCient Yet, you again chose to abandon the workplace The company WIll not tolerate these SItuatIOns, and as you have shown no Improvement after repeated inCidents, the deCISIOn has been made to terminate your employment. On examlnatlon-In-cruef, Mr CaSSidy testIfied that the September 17, 1997 suspensIOn was a factor In the deCISIOn to discharge under the prInCiple of progresslve diSCipline On cross-eXaminatIOn, he was asked whether It would have affected the discharge deCISion If there had been a tImely grIevance on the September 17th suspenSion, and he responded that It was not lIkely He was, however, only one of four management offiCials who made the deCISion to discharge the grIevor 5 , The pertInent provIsIons of the collectIve agreement provIdes as follows ARTICLE 8 - GRIEVANCE PROCEDURE 8 01 It IS the mutual desIre of the partIes hereto that complaints of employees shall be dealt WIth as qUIckly as possible and It IS understood that an employee has no gnevance untIl he has followed the procedure outlined In ArtIcle 8 of thIs Agreement. 8 02 A grIevance shall be defined as a dIspute involVing the interpretatIOn or an alleged VIOlatIon of thIS Agreement It Is_understood that a probatIOnary employee may not grIeve hIs dIscharge 803 In the event of a complaint, by any employee covered by thIS Agreement, that he has allegedly been dIsCIplined or otherwIse dealt WIth unjustly, he may file a grIevance against the Employer All gnevances shall be In wntlng and shall contain a statement of the facts glvmg rIse to the grIevance and the artIcle and subsectIon of thIS Agreement that IS alleged to have been contravened In cases of suspenSIon or dIscharge, refer to ArtIcle 11 804STEPI VERBALAVRITTEN If an employee believes he has a grIevance he must wlthm ten workmg days of the inCident glvmg nse to the grIevance give opportUnIty to hIS manager to dISCUSS and resolve It. The manager WIll respond prIor to the end of the tenth workmg day His WrItten response will be sent to the employee and the Local PreSIdent. Note FaIlure to respond wlthm the above speCIfied tIme limits wIll be deemed to be an unsatIsfactory response STEP 2 ARBITRATION Farlmg satIsfactory settlement of the gnevance m Step 1, Within (10) ten workmg days of the response at Step 1, the UnIon on behalf of the employee, may proceed to arbItratIOn lfno such WrItten applrcatlOn to arbItratIon IS receIved WIthin the tIme lImIts, the grIevance shall be deemed to have been abandoned WIthout precedent 8 05 TIme lImIts as speCIfied In the above mentioned steps are binding, however m speClal CIrcumstances, mav be extended by mutual WrItten agreement between Management and the UnIon Local ARTICLE 10 - ARBITRATION 10 01 The partIes agree that any dispute or gnevance concernIng the mterpretatlOn or alleged VIolatIon of thIS Agreement, which has been carned through all the steps of the grIevance procedure outlined In Article 8 and/or Article 9, and whIch has not been settled, may be submItted pnor to the end 6 I of the (10) tenth workmg day to a Board of ArbItratIOn, at the request of either of the partIes hereto and notIficatIon shall be m wrItmg addressed to the other party to thIs Agreement 10 02 Where a gnevance IS to be referred to arbitration It shall be referred to the Crown Employees' Settlement Board for resolutIon. The Board WIll have exclusIve JUrIsdiction to arbItrate the grIevances and will be entitled to exerCIse ItS powers pursuant to the Crown Employees' CollectIve Bargammg Act. ARTICLE 11 - DISCHARGE AND DISCIPLINARY PROCEDURES 11 02 A claim by an employee who has completed hiS probationary perIod that he has been suspended wIthout payor discharged wIthout Just and suffiCIent cause shall be treated as a grIevance and taken up at Step 1 of the grIevance procedure . ARTICLE 4 - DEFINITIONS 401 'Day" as used In tills agreement shall mean calendar days and workmg days" shall mean days upon which the offices of the Employer are open for the transaction of busmess It was the grIevor sand Umon President s understandmg that the gnevor had ten "workmg" days to file a grIevance, but that thiS was calculated m terms of the grzevor 5 workmg days, not days whIch the offices of the Employer were open. Although he was familIar WIth the collective agreement and the gnevance procedure (havmg filed several gnevances III the past two years), he was not aware that the term workmg dav" was defined m the collective agreement Accordmgly, he testified on exammatIOn-m-chIefthat he belIeved he had time, upon hIS return to work after hIS suspenSIOn, to file the grIevance, and then, before he did so, he was suspended agam. As noted, he belIeved that he returned from hIS mItIal suspension m early October and only worked "four or five days" before he was suspended agam. It would appear, however, based on the "2 on, 2 off' work scheduled, he would have worked ten days between September 28 and October 16 1997, the date he was suspended pendmg termmatIon. ! 7 . On cross-exaffilnatIon, the grIevor added that he did not know If any gnevance forms were avarlable at the Winchester Base when he was Informed about the discIplIne on September 17, 1997 He stated that the base was under constructIon and that he dId not know where anythIng was He was also distressed about the disciplIne and asked to be replaced so he could leave, and that request was granted It was hiS opInIOn that the base was In such disarray that he would not have been able to locate a gnevance form, but he acknowledged that he did not look. for any, nor ask. for one He further acknowledged that when he returned from hIS suspenSion, the only effort he made to find a gnevance form was to look. for one at hIS base but he dId not find one He maae no other effort to obtaIn a grIevance form untIl he was dIscharged on October 24, 1997, and then he grIeved both hiS suspenSIon of September 17 1997 and 111S discharge He did not grIeve the two WrItten warnings that he also received on September 171h Accordmg to Operations Manager CaSSIdy, gnevance forms are normally avarlable at all of the bases m an envelope by the Umon bulletm board and that thIS was true even dunng the constructIon. But he had no personal knowledge Ifforms were In the envelope at the time In question. Umon PreSident Brown testified that It was hiS understandmg that the gnevor had ten workmg days, based on hrs work. schedule, to file the gnevance, and he only learned later that "workIng day meant days that the office was open Although he has held Union office for a number of years In varIOUS capaCities, he had only lImited Involvement In the grIevance 8 procedure No eVIdence was presented, however, that It was the Umon S practIce to file grIevances wIthIn ten "working days" as defined by the indivIdual grIevor The two grIevances filed by Mr Palazzo were faxed to the Employer on October 29, 1997 by OPSEU Staff RepresentatIve Mana WysockI. In her cover letter to Mr Cassidy, she wrote "ThIS shall serve to formally adVIse you the UnIon IS refernng the above named grIevances to the GrIevance Settlement Board for an arbItration hearIng. Upon receiving that letter and the two grIevances, Mr Cassidy mformed the Umon that the employer was willmg to bypass Step 1 of the grIevance procedure m regard to the discharge grIevance, but objected to the suspenSIOn grIevance as bemg untimely He confirmed that In wrItmg In a letter to Ms WysokJ, stating as follows I received by fax today two GrIevance forms and a notIce of reference to arbItratIon In a conversatIon WIth your representatIve yesterday, It was agreed that Step 1 of the dIsmIssal GrIevance would be bypassed and we would proceed dIrectly to Step 2 As there IS no agreement to extend the time lImits defined by the CollectIve Agreement, SectIon 8 04, we do not acknowledge a grIevance relatIng to he suspenSIOn leVIed Sept 17 as It has been deemed to have been abandoned wIthout prejudIce B Facts regardmg the consolIdatIOn. The events that led to the September 17, 1997 suspenSIon and the October 24, 1997 discharge are dIstmct, although the dIscharge IS based, m part, on the fact that there had been a pnor suspenSIOn. Accordmg to counsel for the Employer, there wIll be three WItnesses regardIng the September 17, 1997 suspenSIon and SIX concernmg the dIscharge, wIth the only WItness m common Mr CaSSIdy Counsel for the UnIon did not IdentIfy the number of UnIon WItnesses, but noted that the grIevor would be testlfymg about both events 9 C. Facts regardmg venue. The workplace IS near Ottawa and the grIevor and Its wItnesses are located In that area. Counsel for both sIdes are located In Toronto as IS the Vice-Charr The Employer and ItS wItnesses are prepared to travel to Toronto POSITIONS OF THE PARTlliS A. The Employer The Employer contends that the suspension gnevance was untImely and has not been processed In accordance with the collectIve agreement It asserts that the grIevor did not contact hIS manager to gneve tills discipline wIthin the ten working day time limit set forth In the collectIve agreement and that, accordingly, the gnevance filed on October 25, 1997 and Immediately referred to arbitratIOn IS untimely and fads to comply with Article 8 of the agreement. It submIts that the time lrmltatlOns In the collectIve agreement are "binding" and that non-compliance means that the grIevance "shall be deemed to have been abandoned Without precedent" In ItS view, the October 29, 1997 suspension grIevance was filed too late While the Employer acknowledges that the Gnevance Settlement Board has the power to extend the tIme for taking a step In the gnevance procedure under SectIon 48(16) of the Labour Relations Act, which was Incorporated Into the CrOll'n Employees C ollecflve Bargaming Act, as amended, It submIts that the statutory CrIterIa for the exerCIse of that power has not been met That prOVISion provides as follows 10 ! SectIOn 48(16) 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 takmg 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 Although It dId not assert that It WIll suffer substantIal prejudIce If an extensIon IS granted, It dId note that It relIed on the earlier suspenSIon whIch had not been gneved 10 decldmg to dIscharge the gnevor, and subffilts that It would be unfair to allow the Union to now challenge that suspenSIOn. Rather the Employer s maIO contentIon IS .that there are no "reasonable grounds for an extenSIOn" In support of ItS pOSItIOn, the Employer cItes to Re Greater Nwgara General Hospltal and Nurses AssocwtlOll (1981), 1 LAC (3d) 1 (Schiff) 10 whIch SIX factors were IdentIfied for conSIderatIon In regard to thIS Issue Those SIX factors are (1) the nature of the gnevance, (2) whether the delay occurred In InitIally launchmg the grIevance or at some later stage, (3) whether the gnevor was responsible for the delay, (4) the reasons for the delay, (5) the length of the delay and (6) whether the employer could reasonably have assumed the grIevance had been abandoned The Employer asserts that under the facts of thiS case these factors do not establIsh reasonable grounds for an extenSIOn I t submIts that although the nature of the gnevance IS SIgnIficant, smce the suspensIon was relied upon 10 the subsequent dIscharge and the delay was short, the other factors ffillltate agamst an extensIon The delay occurred at the inItial filmg of the gnevance, the gnevor was responsible for the delay; there IS no valId reason for the delay Since the term "workmg day" IS clearly defined In the collectIve agreement, and 11 the employer, based on the contract, assumed the grIevance had been abandoned The Employer also cItes to the follow1Og cases Re John Ziller Lumber Ltd. and Teamsters Ulllon, Local 230 (1996),56 L A.C (4th) 429 (Mitchmck) Re MetropolItan Separate School Board and Canadian Union of Public Emplovees, Local 1280 (1992), 27 L A.C (4th) 154 (Brandt) Hotel-Dieu Grace Hospztal and Ontano Nurses Associatzen (1995), 47 LAC (4th) 66 (Watters) The Employer further contends that the eVidence does not support the Union's assertion that a verbal gnevance was filed at the September 17fh meetmg when the dlsclpl10e was Imposed But It argues that even If that vIew was accepted, an arbitrator has no JunsdlctIon to extend the deadlme for submlttmg a grievance to arbitratIon under the OntarIo Court of Appeals' decIsion 10 Servzce Employees InternatIOnal Ulllon Local 204 and Lezsureworld Nursll7g Homes Lzmzted [1997] 0 J No 4815 The Employer argues that If a verbal grIevance was submItted on September 17th, then when there was no response from the Employer after ten days that should have been Viewed as a negatIve response under the collectIve agreement and the Union then had ten days to submIt the gnevance to arbItratIon which It dId not do Accord1Ogly, It submIts that under tl11S scenarIO, the Union's submISSion to arbItratIon was late and that the GrIevance Settlement Board has no JUrIsdictIOn to relreve agaInst that missed deadline The Employer also contends that the UnIon's attempt to file the grIevance and directly proceed to arbitratIOn does not comply WIth the two-step procedure grIevance arbItratIOn provIsion set forth In the collective agreement 1 t submits that the Union by-passed step 1 12 without any consent from the Employer and should not be allowed to do so In support of Its contention, the Employer cItes to Re Ottawa General Hospital and Ontario Nurses AssociatlOl1 (1992),27 L A.C (4th) 359 (Carter) In terms of the consolIdatIOn of the two grIevances, should Its prelimInary objectIOn fail, the Employer contends that the two grIevances should not be consolidated It submIts that there IS no Justification for consolIdation, since there are no common Issues of fact or law Involved and they do not arIse out of the same occurrence The witnesses It notes, other than Mr CaSSidy and the grIevor WIll be different for each case I t asserts that the only commonality IS the IdentIty of the grIevor and the employer and contends that consoltdatlOn cannot be ordered on that baSIS Nor, In ItS VIew, wIll consolidation result lI1 any cost saVlI1gs Further, ]t asserts that consolIdatIOn w1l1 prejudice the employer because the dIscharge depends on the suspension. Accordingly It submIts that there IS no baSIS to consolidate these two matters In support of ItS Views, the Employer cites to OPSEU (SI171th) and Mllllstry of CorrectlOnal Servlces (1995) GSB No 545/94 et al (Kaplan), OPSEU (Follrmel) and Mllllstry of TransportatIon (1995) GSB No 1530/93 (Kaplan) Finally, In temlS of venue, the Employer argues that the approprIate test IS the balance of convenIence and In thiS case the balance of convenIence IS In favour of Toronto It submits that the employer IS prepared to bear the cost of transportmg ItS adVIsor and WItnesses to Toronto versus haVing to pay for ItS counsel to travel to Ottawa for the hearIng 13 B The PosItIon of the UnIon The UnIon contends that the facts support two dIfferent scenarIOS The first scenarIO IS that a verbal grIevance was filed on September 17 1997, and the second IS that the grIevance was filed on October 29, 1997 It strongly dIsagrees wIth the Employer, however, as to the legal consequences of those two scenarIOS In ItS VIew, the eVIdence supports Its contentIon that a verbal gnevance was filed by the UnIon on September 17th. It contends that under Article 11 02, whIch states that "[a] claIm by an employee that he has been suspended wIthout payor discharged wIthout Just and suffiCIent cause shall be treated as a gnevance and taken up at Step 1 of the grIevance procedure", the UnIon's statement to the employer that IS dIsputed the dlscIplme was suffiCIent to InItIate a grIevance It submits that Union PreSIdent Brown testIfied that he told the employer at the September 17th meetmg that the dlsclplme would be grIeved and contends that thIS testImony was not refuted The UnIon subrruts that WIth the filmg of the grIevance on September 17th, It was then up to the Employer to respond and when It dId not the Union properly referred the grIevance to arbItratIOn. It further submIts that there IS no JUrISdIctIOnal Issue under S.E.J U and Lelsureworld Nursmg Home supra, because under the parties' collectIve agreement, the referral to arbItratIon IS part of the grIevance procedure under Article 8, not arbitratIOn under ArtIcle 10 Accordmgly, It submIts that Lelsure\l'orlJ IS factually dlstmgUlshable 14 The UnIon contends, m the alternatIve, that If the gnevance was not filed until October 29, 1997, then the board has JUrIsdIctIOn under SectIon 48(16) of the Labour Relations Act to relreve agamst that late filing. It also cItes to Re Greater Nwgara General Hospital and Ontano Nurses AssocwtlOn supra but contends that the factors favour an extensIon of the deadlIne, and that overall, the factors provIde reasonable .grounds" for an extensIOn. It submIts that the nature of the gnevance - the gnevor's_suspensIon - IS a very Important matter WIth SIgnIficant consequences to the gnevor and that the delay was extremely short - a matter of days, not months or years It further submIts that the grIevor had a legItImate reason for the delay - ills ffilsunderstandmg of a "workmg day" and the dISarray caused by the renovatIon of the base But even If the reason IS not a "good" one the Union contends that the reason for the delay IS only one factor and IS not controlling. In support of thIs VIew, the Union cItes to Re Queenswav General Hospltal and Ontanu NI/nes Assocwtion (1996), 57 L AC (4th) 194 (Kaplan) and Re Parkll7g Authonty of }omnto and C.u P E. Local 43 (1990), 10 LAC (4th) 318 (Brandt) The Union further submIts that the Employer has CIted to no prejudIce It will suffer If an extensIon IS permItted. On balance therefore, the Union contends that the board should exercIse ItS dIscretIon to relieve agamst the delay m filmg. Insofar as the Union allegedly bypassed Step 1 by ImmedIately proceedmg to arbItratIon, the UnIon notes that tills concern was not raised by Mr CaSSIdy m ItS October 29, 1997 letter to the Union, and submIts that It dId not become a concern untIl counsel for the Employer wrote a letter to the GSB outlImng ItS prelrmmary objections m March 1998 Further, It submIts that any mIssed step can be remedIed prIor to the start of the arbItratIOn hearIng IS In terms of consolIdatIon, the Union argues that the cases should be consolIdated They both mvolve the gnevor and Mr Cassidy and while there may be other wItnesses called, those two are the key wItnesses Further, It submits that there would be a cost savmgs through consohdatIon smce the wItnesses would only have to be called to testIfy once and consolrdatIon WIll avoid delay Without consolidation, the Union argues that It would have to aWait a decIsion on the suspenslOn grIevance before the dIscharge case could begIn, smce the discharge relred on the earlIer suspenSIon. If the gnevances are consolIdated, both could be heard and decided at the same time On the Issue of consolIdatIOn the Union cites to Re Loeb lGA SOllthslde and U FeW Jlltemul/()l1u/ (1t'/()11 (994) 39 LAC (4th) 353 (KIlgour) In regard to venue, the Union submIts that the heanng should take place m Ottawa. The grIevor, the Umon representative, the witnesses the worksIte are all located close to Ottawa and on a balance of convenIence test, Ottawa IS preferable to Toronto The Umon submIts that the fact that the Employer will have to pay for ItS counsel to travel to Ottawa should be of no bearIng i I I DECISION i I I i A. The SuspensIon GrIevance I I I After carefully consldenng the facts and the legal arguments of the parties, I conclude I that although the grIevance was not filed until October 29, 1997, thiS IS an approprIate case I l f f I I f I 16 , I I . to exerCIse my dIscretIon under SectIOn 48( 16) to relIeve against the time constraint In the partIes' collectIve agreement. It IS my VIew, based on the testimonIa] eVidence presented, that a verbal grIevance was not lodged at the meeting on September 17, 1997 At best, Umon President Brown stated that the discipline "WIll be grIeved" and this was cOl~firmed by the gnevor He testified that I Mr Brown mdIcated theIr "intention" of grIeving to management Their testImony indIcates that a future Intent to gneve was expressed whIch IS qUite different than stating "consider thIS a grIevance" All they did was signal that a gnevance would be forthcoming; that dId not amount to lodging a verbal gnevance at the meetll1g Clearly, the grIevor and Umon President Brown disagreed WIth the dISCiplIne and under ArtIcle 11 02, It IS possible as the Ul1Ion asserts, to VIew their disagreement With the dIscIplme as creatmg a gnevance That prOVISion stales that "[a] claim by an employee that he has been suspended WIthout pay WIthout Just and suffiCient cause shall be treated as a gnevance and taken up at Step 1 of the gnevance procedure" It IS qUite clear, however, that no one - neIther the grIevor, the Umon nor the Employer - treated what occurred as creatmg a gnevance At the conclUSion of the meetmg, there was diSCUSSion about the grIevor's taking the suspenSIOn over time rather than all at once and the matter was left open. It was Mr Cassidy's understandmg that the Umon and gnevor would diSCUSS how to proceed It was possible, though unlIkely, that the grIevor might Simply accept the diSCipline upon further reflectIOn, or accept It If It was served over time rather than all at once Further, Umon President Brown adVIsed the gnevor that Ifhe needed any help from him or the chief steward 17 , about filmg a grIevance he should contact them, which the gnevor agreed to do Such an offer IS mconsIstent wIth the Idea that a grIevance had already been lodged Consequently, In lIght of the fact that none of the partIes treated what occurred on September 17, 1997, by Itself, as creatmg a grIevance, I cannot conclude that a gnevance was filed by the operatIon of Article 11 02 Nor, m my VIew, would It be appropnate to treat the dISCUSSion that took. place at the September 17 meetmg as a first step grIevance meetll1g The purpose of the meetll1g was to Impose dIsclplme on the gnevor, not to "diSCUSS and resolve" a grIevance over that dIsclplIne Accordmgly because no grIevance was filed on September 17 1997 I need not diSCUSS the ImplicatIOns of the Court of Appeals deCISIon 111 S E.! U and LelslIreworld Nurs717g Homes Ltd. supra Instead, the eVidence establIshes that the sLlspenSlon gnevance was faxed to the Employer on October 29 1997, and was thus untImely under the collectIve agreement. Under ArtIcle 8 04, an employee must submit hiS gnevance, verbally or m wrItmg, "wIthm ten worlang days of the mCldent gIvmg rIse to the gnevance " The October 29, 1997 filmg was beyond that ten-day perIod Nevertheless, I find that there are reasonable groLlnds for extendmg the time for filIng ( under ArtIcle 48(16) of the Labour RelatIOns Au FIrst, as the counsel for the Employer IX . I noted In argument, there IS no substantial prejudice to the Employer AccordIngly, the Issue must turn on whether there eXist "reasonable grounds for the extension" In my VIew, the factors set forth In Re Greater NlOgara General HospUal and Ontano Nurses Assoczatjon, supra, generally support a conclusIon that there are reasonable grounds for extendmg the time lImIts First, the nature of the grIevance IS a serIOUS one The suspenSIon has Important consequences for the gnevor smce It led, It part, to his subsequent discharge Second, the length of the delay was qUite short - less than a month after It should have been filed ThiS IS SignIficantly less than 111 somc other cases See e g, Re John Zmcr Lumber Ltd. and Teamsters Ul7Ion supra(and cases CIted thereIn) Further although the delay occurred m InitIally launchIng the gnevance the delay was so short that the employer clearly had a full opportUnIty to gather ItS eVldencc and marshall ItS arguments In addItIon, whIle the grIevor was responsible for the delay, there IS no eVIdence of bad faith or mtentIonal dIsregard of the tIme limits WhIle the grIevor, m lIght of hIS experIence WIth the grIevance procedure, and the Umon should have been aware of the defirutIon of"workmg days" contamed m the collcctlve agreement, there IS no eVIdence that they intentIonally dIsregarded the deadlIne Instead the gnevor erroneously belIeved that he had more tIme to file a grIevance when he was su,>pended aga1l1 on October 16 1997 That the gnevor should have made more ctl(.)r1 to obtaIn a gnevance form and file the grIevance IS clear The fact that the base was In disarray cannot excuse hIS lack of effort 19 , because, as he acknowledged, he dId not look for a form He also demonstrated a lack of dIlrgence when he returned to work. But thIs lack of diligence IS not determInatIve The prevailIng arbItral view IS that the reason for the delay IS only one factor among many to consIder under SectIOn 48(16), and IS not an automatIc bar See Re Parking Authorzty of Toronto and CUP E., Local -13 \llpra at p 321, Re QlfeenSlvay General HospItal and OntarIo Nurses AssociatIOn supra at p 203 In the Re QueenSlvay General Hospltal case, wluch Involved a late submiSSion to arbltratlOn, the board determIned that the reason for the delay was "Inadvertence (or pOSSibly worse )"obut dIstIngUIshed between the reason for the delay and the determmatlon of whether reasonable grounds for the extensIon" eXIst under SectIon 48( 16) The board stated at p 203 [T]he reason for the faIlure to refer IS a dillcrent Issue than whether there are reasonable grounds for extendIng the time Illles In general the case for domg so will be strengthened If good reasons arc given for the faIlure to refer But tIllS IS not to say that SImply makIng a mistake of thIS kInd wIll serve as an automatIc bar to the exercise of a Board of ArbItratIon's statutory dIscretIon. What has to be examIned In each case IS whether there are reasonable grounds for extendIng the tIme Irmlts I agree Wlth tlus approach. Consequently, although the reason for the delay may be weak and the grIevor bears the responSIbIlity, overall there are reasonable grounds for an extensIon gIven the Importance of the Issue, the shortness orthe delay the absence of bad faIth, and the lack of any real prejUdICe to the employer Whde the employer reasonably could have assumed that the grIevance had been abandoned under the collectIve agreement, that assumptIon was short-lIved and ended on October 29 1997 20 I I In so rulIng, I do not lrghtly dIsmIss the Employer s reliance on the time lImIts In the gnevance procedure and the fact that the partIes made the time lrmlts "bmdmg" But both parties are aware that the Section 48(16) of hdwlIr RelatIOns Act overrIdes the collectIve agreement (unless the parties specIfically opt-out of It whIch was not done here) and that It empowers an arbitrator to consider requests for extcndlng the deadlmes Accordmgly, any relIance by the Employer had to be tempered by the knowledge that a late grIevance could be filed, subject to Section 48( 16) of the Act Accordingly, for the reasons set forth above I am satIshed that there are "reasonable grounds for extension and that the opposite party will not be substantIally prejudiced by the extension WIthin the meanmg of SectIon 48( 16) or the Au ThIS means, however, that the suspension grievance arrIved at arbItratIon WIthout haVing gone through Step 1 As the UnIon suggcsted thiS can be remedied before the arbItratIon hearIng At that tIme, the parties can dISCUSS It and attempt to resolve It B The consolIdatIOn Issue. The GrIevance Settlement Board's consolidatIon rule provIdes, In pertinent part, as follows WHERE ORDER MAYBE MADE Where two or more proceedings are pendlllg before the GrIevance Settlement Board and It appears to the Grievance Sct t Icment Board that, (l)(a) they have a question oflaw or fact In common (b) the relref claImed m them anses out of the same transaction 21 or occurrence or (c) for any reasons an order ought to be made under this rule the GrIevance Settlement Board may order that (d) the proceedings be consolidated, or heard at the same tIme or one lmmedIately after the other; or (e) any of the proceedings be, (i) stayed untIl after the determination of any other of them Thus, there IS broad dIscretIon to consolIdate cases not only when there are questIons oflaw or fact m common or the relIef claImed arISes out of the same Mtransactlon or occurrence, but "for any reasons an order ought to be made under tIllS rule" I conclude that there are two reasons to consolidate the gnevances In thIS case - to aVOId delay and to save costs Clearly If the cases are not consolidated, the dIscharge gnevance could not commence until the conclUSion of the suspensIOn case and a deCISIon was Issued ThiS could be many months away If the gnevances are consolidated, eVIdence on both gnevances could be heard at the same time and both gnevances determined at one tIme LikeWIse, consolIdatIOn would mean both Mr Cassidy and the grIevor would only have to testify once, m one proceedmg, versus tWIce III two proceedings ThIS WIll save tIme and costs, and IS suffiCIent to order consolIdatIOn. Further, consolidatIon WIll cause no prejudIce to the Employer Each grIevance wIll nse or fall on ItS ments Accordingly I order that the two gnevances be consolidated 22 C The venue Issue. It seems to me that there are conveniences to be had by holding the hearIng In Toronto and converuences to be had by holding the hearIng In Ottawa. I know of no requIrement that the hearIng be held In the same cIty In Its entirety Accordingly the hearIng WIll be held In Toronto when the Employer presents Its case and In Ottawa when the Union presents Its case ClOSing arguments WIll be held In Toronto CONCLUSION For all of the foregoing reasons, I conclude as follows 1 The grIevance was untImely filed on October 29 1997 but I am satIsfied that the statutory cnterIa under SectIon 48(16) of the Labol/r Re/C1/f()/J,\ 4c/ has been met, speCIfically that there are "reasonable grounds for the extenSIOn and that the opposIte party WIll not be substantIally prejudIced by the extenSIOn." 2 The two grIevances are consolIdated for hearing ,., In terms of venue, the hearIng will be held III Toronto whIle the Employer presents ItS case .) and In Ottawa whIle the Umon presents ItS case ClOSing arguments wIll be held In Toronto Issued thIS 8th day of July, 1998 In Toronto 2J