Loading...
HomeMy WebLinkAbout1997-2231.ALEXANDER.99-06-14 Decision . . ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUlTE600, rORONTOONM5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G rZ8 FACS/MILE/TELECOPIE (416) 326-1396 GSB # 2231/97 0069/98 OPSEU # 98B135, 98B174 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEV ANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees UnIon (Brent Alexander) - -- Grievor - and - The Crown m RIght of Ontano (MmIstry of TransportatIOn) Employer BEFORE Owen V Gray VIce Chau -- FOR THE Heather E BOWIe GRIEVOR Counsel Gowlmgs, BarrIsters & SohcItors BarrIsters & SohcItors FOR THE MelIssa Nixon EMPLOYER Counsel, Legal ServIces Branch Management Board Secretariat HEARING Apnl 20 1999 - - DECISION [lJ On February 24 1997, the grIevor filed two grIevances wIth respect to events that took place m July 1992 The employer objects that they raIse a mat ter settled m proceedmgs before the Human RIghts CommIssIon and are, many event, untimely The umon takes the posItion that the documents saId to constI tute a settlement of a complamt to the Human RIghts CommIssIOn do not bar these grIevances It demes that the grIevances are untimely but, m the altern a tIve, asks that the time lImIt for filmg the grIevances be extended ThIS decIsIOn deals wIth those prelImmary Issues [2] In 1992 the grIevor was an employee of the Mmlstry of CorrectIOnal Serv Ices He suffered a workplace mJury that year In settlement of proceedmgs con cermng hIS rIghts under the then Workers Compensatwn Act the employer agreed to put hIm m Its redeployment program. C0fiseqllently, he had the oppor tumty to get prIOrIty mtervlews for vacant posItions before those posItions be came the subject of Job competitions [3J In June 1992 the HamIlton DIStrIct office of the Mmlstry of Transporta tIon wanted to fill two Transport Enforcement Officer 3 posItions They contacted the Redeployment Umt at Management Board SecretarIat for clearance of a -- competitIOn. The Redeployment Umt asked that the grIevor be mtervlewed for one of the posItions He was mterVlewed m July by Paul Wake and Bonme Suhr, who were then DIStrIct Manager and Enforcement Coordmator, respectively, for the HamIlton DIStrICt. Mterwards, the Redeployment Umt receIVed the followmg "faxagram" dated July 14,1992 over the sIgnature ofMr Wake As requested, thIS Mimstry has met wIth Mr Brent Alexander to conSIder hIS sUltabIlIty for the posltlOn of TransportatlOn Enforcement Officer 3 (T E 0 3) As IS eVIdent from the attached documentatlOn, Mr Alexander dId qUlte well m answenng questlOns m the mtervlew process While thIS IS mdlcatlve of hIS - . 2 efforts to prepare for hIS mtervIew we must refuse Mr Alexander as a SUIt able candIdate for thIS posItIon. Our reasons are as follows The knowledge reqUIrements for thIs posItIon are qUIte complex and are usually attamed through 2 3 years expenence as a TransportatIOn En forcement officer 2 (T.E.O 2) The mcumbent must be famIlIar wIth all aspects of on road enforcement pnor to conductmg the audIt functIOn m order to effectIVely IdentIfv viola tIons as well as provIde assIstance to the transportatIOn mdustry The trammg penod to qualIfv as aTE 0 2 IS a one-veal' penod, plus the suc cessful completIOn of specIfic related trammg courses These courses are mandatory for both T.E 0.2 and T.E 0 3 posItIOns The knowledge at tamed through thIS tIme mcludes the theory and practIcal applIcatIOn of seven dIfferent complex acts and related regulatIOns as well as mInIstry polIcIes and procedures Mr Alexander could not perform as a qualIfied officer for at least eIghteen months These reqUIrements dIsqualIfy Mr Alexander as a potentIal can dId ate Our other concern relates to the physIcal reqUIrements of thIs posItIon. Part of the responsibIlItIes of thIS posItIon IS the actual safety mspectIOn of com merCIal motor vehIcles ThIs mvolves bendmg, kneelmg and crawlmg under vehIcles, sometImes on a creeper, and usually m the proxlmltv of other com merCIal traffic On road enforcement also reqUIres thIs actIvltv, as well as clImbmg on trucks and mspectmg loads A check of Mr Alexander s employment file mdlcates hIs neck movement IS restncted by one-thud and also that he is-to aVOld-a.ny sustamed reachmg be- yond 12" of hIs body ThIs restnctIOn would clearlv present a problem as an enforcement officer [4] About a week after the mterVlew, the gnevor telephoned hIS redeployment counsellor, Zuzka SladIk. She told hIm he had not been gIVen the posItlon. She had not yet seen the letter from the MmIstry of Transportatlon, but told hIm she understood It saId he had not been gIVen the Job because he dId not have the re- qmred mImstry courses, and because there was a concern about hIS phYSIcal lImItatlons Some tlme between then and the begmnmg of September, the gnevor spoke to Ms SladIk agam. By thIS tlme she had obtamed a copy of the letter, and she read It to hIm. He expressed concern about the reference to hIS lImItatlons He asked what he could do She also told hIm he could file a gnev ance She also sald that other posltlOns mIght come up m that dIstnct office She suggested that If there was a possibIlIty of other posItlOns he mIght not want to file a gnevance - - 3 [5] In September 1992, after the two telephone conversatIOns wIth Ms SladIk about the outcome of the mterVlew for the TEO 3 posItIon, the gnevor spoke to Mr Wake He expressed concern about the references to hIS physIcal lImItatIOns m the letter Mr Wake told hIm that he had "told them not to put that m the let ter," or words to that effect. The gnevor testIfied that he understood thIS to mean that Mr Wake had had nothmg to do wIth the letter Mr Wake told the gnevor that hIS lImItatIons had had nothmg to do wIth the decIsIOn, that the reason he dId not get the Job was that he dId not have the reqmsIte mmIstry courses The gnevor asked Mr Wake whether there would be any further posItIons Mr Wake replIed that as far as he was aware there would be two TEO 2 posItIons, and that the postmg for them mIght say that candIdates wIth lesser qualIficatIOns would be conSIdered. [6] The gnevor testIfied that he felt wronged at the tIme of hIS conversatIOn wIth Mr Wake m September 1992 If the mmIstry courses were mdeed cntIcal for the posItIOn, he could not understand why they would have mtervIewed hIm for It knowmg, as they dId at the outset, that he dId not have those courses He knew he could gneve, but chose not to do-so because of the Impact he thought that mIght have on hIS chances of obtammg one of the other posItIOns that mIght be commg up [7] The competItIon for the TEO 3 posItIons was cleared by the Redeployment Umt and went ahead m late 1992 The posItIons were filled by people who had the course qualIficatIons the gnevor lacked. The gnevor telephoned Ms Sladik m December 1999 to ask about the antICIpated further MmIstry of TransportatIon posItIons She sald there were none He testIfied that m the ensumg conversatIOn he asked for the first tIme who had SIgned the July letter Ms SladIk told hIm that Mr Wake had SIgned It [8] The gnevor testIfied that at thIS pomt he felt Mr Wake had mIsled hIm He was no longer concerned about the effect of a complamt on hIs chances for other posItIons He took steps to obtam a copy of Mr Wake's July 1992 letter and - - 4 the questIOn and answer paper he had completed for the mtervIew Havmg ob tamed those, m about February 1993 he went to the Ontano Human RIghts CommIsSIOn ("the HRC") to complam that m decIdmg not to gIVe hIm the TEO 3 posItIOn the employer had dIscnmmated agamst hIm because of hIS dIsabIlIty When asked m cross exammatIOn why he had not filed a gnevance then, he Sald that when the HRC suggested he should do that he had read the collectIve agreement, learned of the tIme lImIt for filmg gnevances, and told the HRC that he could not then file a gnevance [9J The gnevor's complamt to the HRC was reduced to wntmg and served on the employer m May 1993 The employer filed a detaIled wntten reply The thrust of It was that the gnevor had been demed the Job solely because he dId not have the reqUISIte courses and knowledge It stated that m the ensumg Job com petItIOn, anyone who dId not have the reqUISIte courses had been screened out The HRC mvestIgated. By the gnevor's own account, the officer responsIble was not encouragmg about the prospect that hIs complamt would be pursued by the CommISSIon. The officer had not found ~eVldence that a TEO posItIon at that level - -- - had ever been filed by someone who dId not have the reqUIred courses The gnevor testIfied that the officer told hIm he would try to make a settlement based on the gnevor s bemg mtervIewed for the next posItIon becommg aVallable at a lower level that dId not reqUIre the courses [10J Thereafter, gnevor receIved the followmg letter dated January 27, 1994 from the HRC officer -- Enclosed IS a copy of the letter whIch you requested from the M.T 0 promIS- mg you an mtervIew and equal treatment should an opemng occur for the po- SItIOn of Enforcement officer Levell The ongmal of thIS letter IS bemg maIled to your reSIdence. ThIS serves to confirm your telephone calls of November 26 and 29 1993, durmg whIch you adVIsed that you WIshed to WIthdrawn your comp1amt on the condItIOn that you receIVed a letter from the M.O T as descnbed above I have been Informed by the staff at the Human Resources Branch at the M.T 0 that you wIll be notIfied m the event of an openmg for an Enforcement Officer 1 As well, you are mVIted to call the M.T 0 at (416) 235-5374, from - - - 5 hme-to-hme to mqmre as to the possIbIlIhes of any posItIOns becommg aVall able Should the M.T 0 ever have an openmg for Enforcement officer 1 and you are not called, you retam the optIOn of re-opemng your Human RIghts complamt agamst the M.T 0 and named Respondents In accordance wIth CommIssIOn polIcy I request that you confirm these m structIOns to me m wntmg However should I not receIve them wIthm two calendar weeks of the date of mallmg thIS letter, I WIll act on vour verbal re- quest and submIt the case-file for closure Enclosed wIth thIS letter was a letter dated January 25, 1994 addressed to the gnevor and sIgned by a Human Resources Consultant at the Mmlstry of Trans portatlOn. That letter sald thIS I am aware that you preVIously applIed and were mterVlewed for the pOSItIOn of TransportatIOn Enforcement Officer m 1992 m the HamIlton Dnvers and VehIcles areaq [SIC] and that you were not chosen as one of the successful candIdates. I smcerely regret any actIOns taken by the Mimstry whIch left you WIth the ImpreSSIOn that you dId not receIVe faIr and eqUItable treatment. At thIS hme. I would lIke to say that you WIll be consIdered for future Trans portatIOn Enforcement Officer Tramee posIhons. At the present hme there are no opemngs. However, should an opemng for a TransportatIOn Enforce- ment Officer 1 level pOSItIOn be advertIsed m the future, and should YOU ap- ply you WIll be mtervIewed and you WIll be treated on.an equal and faIr basIs If you have any questIOns regardmg the above pletl.se do not heSItate to call me at 235 5374 Thank you [11] The gnevor testIfied that after receIvmg these letters he telephoned the officer at the HRC and expressed concern about the settlement One of hIS con cerns, he says, was that whIle the letter from the officer saId that he wDuld be notIfied of TEO 1 opemngs, the enclose~ letter from the mlmstry dId not say he would be mformed, but merely that he would be gIVen an mtervlew If he applIed He acknowledged m cross exammatIon that he dId not ask for a reVIsed letter or do anythmg else to address hIS concerns He saId that after speakmg to the HRC officer he thought that was "pomtless " [12] No TEa 1 pOSItIons became avaIlable between January 1993 and the filIng of these gnevances - - 6 [13] In December 1996 the mImstry posted vacanCIeS for 6 TEO 3's It decIded to remove completIOn of specIfic mmIstry courses from the posted mmImum re- qmrements for the posItIon, m order to encourage more people to apply Of the successful candIdates, one had not completed the mImstry courses The gnevor became aware of that m late January or early February 1997 He decIded to file the two gnevances m questIOn here One complams of Improper fillmg of the TEO 3 posItIon m 1992, m that the gnevor was demed the posItIOn The other complams that the mImstry dIscnmmated agamst hIm m that he was demed the TEO 3 posItIon because of a physIcal dIsabIlIty The gnevor also filed a complamt under the employer's Workplace DIscnmmatIOn and Harassment PolIcy ("the WHDP complamt") Those to whom the complamt was assIgned for mvestIga tIons later completed an mvestIgatIOn and provIded a report, but the result was not satIsfactory to the gnevor [14] Ms Suhr IS stIll an employee of the government. Mr Wake IS not, but hIS whereabouts are known. The file pertammg to theIr mtervIew of the gnevor stIll eXIsts NeIther of the mdIVIduals who were awarded the TEO 3 posItIons m the 1992 competItIon IS stIll m the posItIon One of the posIti-ons has been filled agam tWIce smce then, the other has been filed agam once The remedy sought by the umon If the gnevances succeed on the ments IS an order that the gnevor be put m one of those TEO 3 posItIons Argument - [15] The employer concedes that the tImelmess of these gnevances must be assessed by reference to the prOVISIOns of the collectIve agreement that was m force at the tIme of the wrongdomg alleged m the gnevances, not the prOVISIons of the collectIve agreement m force at the tIme the gnevances were filed Under the relevant prOVISIons - ArtIcle 27 of the 1992 93 collectIVe agreement - the tIme for filmg a gnevance runs from the tIme when the gnevor "belIeves he has a complamt or dIfference" wIth the employer ansmg from the mterpretatIon, ap- plIcatIOn, admmIstratIOn or alleged vIOlatIon of the collectIve agreement ArtIcle - -~ 7 27 2 1 proVIdes that an employee who belIeves that he has such a complamt or dIfference "shall first dISCUSS the complamt or dIfference wIth hIS supervIsor wIthm twenty (20) days of first becommg aware of the complamt or dIfference" If the complamt IS not satIsfactonly settled by the superVIsor wIthm 7 days, It may then be addressed through a process whIch may be begun by filmg a wntten gnevance wIthm a further 10 days ArtIcle 27 13 provIdes that If a gnevance "IS not processed wIthm the tIme allowed or has not been processed by the employee or the Umon wIthm the tIme prescnbed It shall be deemed to have been WIth drawn." [16] The employer argues that, on the eVIdence, the gnevor belIeved he had a complamt concernmg the subject matter of these gnevances m the fall of 1992 when he learned of the contents of the letter receIVed by the Redeployment Umt or, at worst, the sprmg of 1993 when he filed hIS complamt WIth the HRC It also submIts that because the gnevor's complamt became the subject of HRC pro- ceedmgs that were settled, the appropnate forum for entertammg any reopemng of the complamt IS the HRC - [17] The umon submIts that the gnevor dId not have the reqUIsIte belIef untIl he was aware of a factual baSIS for complamt. It argues that he dId not have that basIs untIl early 1997, when he learned that someone who had not completed the mmIstry courses had been awarded a TEO 3 pOSItIon. It further argues that the gnevor dId not have the reqUIsIte belIef when he filed hIS complamt WIth the HRC, because at that tIme he belIevedJle could not file a gnevance because of the tIme lImIt m the collectIve agreement. It submIts that the HRC proceedmgs were not settled m any manner that precludes the gnevor from proceedmg m thIS forum, notmg that the gnevor dId not SIgn mmutes of settlement or a re- lease [18] In theIr submIssIons on tImelmess, the partIes' counsel referred to The Queen Ln RLght of Ontarw as represented by the Mimstry of Correctwnal SerVLces v Ontano PublLc SerVLce Employees Unwn et al (1990), 74 0 R (2d) 700 (Ont - - 8 DlV Ct) (denymg an applIcatIOn for JudICIal reVIew of Pwrre, 0492/86 (Venty)), EllLs, 2473/92 (Low) and Cuthbertson, 0992/93 (Bnggs) [19] If the gnevances are found to be out of tIme, the umon asks that tne tIme for filmg them be extended pursuant to subsectIOn 48(16) of the Labour Relatwns Act, 1995, S 0 1995, c 1 Sch A, whIch applIes to these proceedmgs by VIrtue of subsectIOn 7(3) of the Crown Employees Collectwe Bargmnmg Act, 1993, S 0 1993 c 38, as amended The umon argues that the subject matter of the gnev ances - dIscnmmatIon - IS a senous matter and that a gnevance about It should not be dIsallowed because of delay caused by mIsmformatIOn. The mIsm formatIOn alleged IS Mr Wake's statement that there would be other postmgs for whIch the gnevor mIght be a candIdate and the placement counsellor's sugges- tIon that It would be problematIc If he filed a gnevance The umon acknowledges that the counsellor cannot be treated as havmg been actmg on behalf of man agement when she made that suggestIOn. The UnIon submIts that the employer had not demonstrated actual prejUdICe The mterVIewers and theIr file are stIll aVaIlable The report of those assIgned to mvestIgate the gnevor's WHUP had - - not IdentIfied any apparent dIfficulty ansmg from the passage of tIme [20] The employer argues that whIle an allegatIon of dIscnmmatIon IS a sen ous matter, the gnevor does not allege ongomg duect or systemIc dIscnmmatIOn The suggestIOn that It would be problematIc If the gnevor filed a gnevance dId not come from a member of management The alleged mIsmformatIOn dId not prevent hIm from filIng a complamt w~th the HRe Nothmg but hIS own belIef that hIS gnevance was out of tIme prevented hIm from filmg a gnevance at that tIme Nothmg prevented hIm from dIscussmg the matter WIth the umon earlIer than he ultImately dId m 1997 In all the CIrcumstances, the employer could rea sonable have assumed long before 1997 that the gnevor had abandoned any complamt he may have had about the events of July 1992 A delay of thIS magm tude should only be the subject of relIef m exceptIOnal CIrcumstances WhIle the mdIvIduals and file are stIll avaIlable, delay of thIS magmtude meVItably affects memones and the abIlIty to mvestIgate - - 9 Decision [21] In Cuthbertson, supra, the Board found that the grIevor had had a genu me belIef that he had no complamt or dIfference wIth the employer until he had eVIdence to substantiate an allegatIOn that the collective agreement had been vIolated GIVen the language of Article 27 of the 1992 93 collective agreement and the mterpretatIon of that language by the Board and the DIVISIOnal Court m PLerre, supra, the Board found that for that gnevor the time for filmg a grIevance had not begun to run until he had eVIdence that he thought supported an allega tIon that the collective agreement had been VIolated. It dId not matter whether hIS belIef was objectively reasonable, only whether It was genumely held. The decIsIon m Cuthbertson, does not stand for the propOSItion that for all gnevors the time for filmg a grIevance under Article 27 of the 1992 93 collective agree- ment does not begm to run untIl the gnevor belIeves he or she has eVIdence to substantiate an alleged vIOlatIOn. [22] I am satisfied that m September 1992 the grIevor belIeved that the em ployer had acted Improperly m denymg h~m the3EO _ 3 posItion followmg hIS July 1992 mtervIew and that he could file a grIevance about that under the col lectIve agreement Accordmgly, I find that he "belIeved" then that he had a "complamt or dIfference" wIthm the meamng of Article 27 of the collectIVe agreement m force at the time The time for filmg a gnevance began to run at that time He deCIded not to file a grIevance Apart from any relevance they mIght have had on an applIcatIOn to extent the time lImIt, hIS reasons for that decIsIOn dId not affect the applIcatIOn of the time lImIt speCIfied m the collective agreement The grIevances are out of time unless the time lImIts are extended. I turn to the questIOn whether to grant an extenSIOn. [23] On the gnevor's own eVIdence, by some time m December 1992 he no longer had any reason not to complam about hIS treatment m July He had been told m September, and then belIeved, that he could file a grIevance It IS a rea sonable mference that m December 1992, before he contacted the HRC, he still - - 10 beheved that he could file a gnevance He dId not yet know about any tIme hmlt for so domg - he says he became aware of that only after he went to the HRC He chose to complam to the HRC, rather than approach the umon about filmg a gnevance When the HRC suggested that he file a gnevance, he looked at the collectIve agreement and concluded that he had mIssed the tIme hmlt for filmg a gnevance He dId not check hIS mterpretatIOn wIth the umon He sImply offered the tIme hmIt to the HRC as a reason why It should entertam hIS complamt. [24] The HRC mvestIgated hlS complamt Eventually, there was the corre spondence of January 1994 The gnevor IS more reluctant to descnbe that as a "settlement" now than he was m hlS Apnl 7, 1997 WDHP complamt. In any event, he dId nothmg to pursue hIS complamt at the HRC or anywhere else for three years after receIVmg that correspondence Such mactIon strongly supports the conclusIOn that he abandoned his complamt In answer to that, he would say that he retamed the nght to reVIVe hlS complamt before the HRC Whether that IS so or not, he clearly dld nothmg to preserve any nght to pursue hIs complamt m the gnevance and arbltratIon process under the collectIve agreement He cer - -- - tamly abandoned hlS complamt m so far as It mIght have been pursued m that process [25] The dIscretIon to extend tIme hmlts for filmg a gnevance should not be exercIsed so as to faCIlItate the reVIval of a gnevance or potentIal gnevance that has been abandoned, regardless of the length of the delay It may be otherwlse If the abandonment was mduced by the fraud or deceIt of the OppOSIte party, but that IS not the case here Apart from the problem of attnbutmg what the coun sellor saId to management, there lS no basls for concludmg that elther she or Mr Wake sald anythmg to the gnevor that she or he knew to be untrue at the tIme It was saId. In any event, the gnevor does not clalm to have rehed on anythmg eI ther of them sald after December 1992 Indeed, he proceeded thereafter m the belIef that Mr Wake had been untruthful. - - 11 [26J Even If the delay between January 1994 and February 1997 IS merely treated as unexplamed and not, as I have done, as affirmatIve eVIdence of aban donment the CIrcumstances do not JustIfy an extensIOn of the tIme lImIt for filmg these gnevances [27] It IS easy to see why what the gnevor learned m early 1997 led hIm to re gret havmg not pursued the sense of mJustIce he first felt m August 1992 Courses that he had been told were essentIal m 1992 were not treated as essen tIal m 1996 A vanety of mferences mIght be drawn from that It does not neces sanly follow, however, that Mr Wake lIed when he SaId he consIdered the courses essentIal m 1992 nor, mdeed, does It necessanly follow that the employer breached any legal oblIgatIOn It had to the gnevor at that tIme WhIle the con duct and outcome of the 1996 competItIOn would undoubtedly be relevant and figure prommently many hearmg of these gnevances on the ments, the fact that the gnevor only learned of those matters m 1997 does not explam or excuse the precedmg delay [28J The umon argues that delay should "Qe of n()~ons~quence m the exerCIse of my dIscretIOn to extend the tIme lImIts If the employer cannot demonstrate that It suffered IdentIfiable prejUdICe as a result of the delay I dealt wIth that argu ment m my decIsIOn of August 24, 1998 m Gamble, 1635/96, m the context of a request to extend the tIme lImIt specIfied m a collectIve agreement between the LCBO and the OLBEU [19] By Ontano law, every collectIve agreement must provIde for the set tlement by arbItratlOn of dIsputes about the mterpretatlOn, apphcatlOn, ad mInIstratlOn or alleged vlOlatlOn of Its proVIslOns. s 48 LRA. The collectIve agreement may, and usually does, proVIde for a grIevance procedure, under whIch such dIsputes must be the subject of dIscusslOn wIth a VIew to settle- ment before they are referred to arbItratlOn. Even when the collectIve agree- ment contams no mandatory tIme hmIt for glYmg notIce of a dIspute so that It can be dealt wIth m the resolutlOn process provIded, the claImmg party s un due delay m glYmg such notIce may lead an arbItrator or arbItratlOn board to declme to deal wIth the dIspute ThIS mvolves the exerCIse of a dIscretIon SImIlar to the courts apphcatlOn of the eqUltable doctnne of laches The exer Clse of that dIscretlOn turns largelv on whether the clalmmg party s delay has caused prejUdICe to the respondent. see, generallv, Brown and Beatty, Cana dwn Labour Arbltratwn (3d ed., Canada Law Book) , 2 3210 - - 12 [20] Emplovers and trade umons often agree on specIfic mandatory tIme lImIts for filmg gnevances under theIr collectIve agreements. ThIS reflects wIdespread understandmg that workplace dIsputes are best addressed as qUIckly as possible after they anse, and that the employer should be adVIsed promptly If ItS conduct IS regarded as contrary to the collectIve agreement (just as an employee or the trade umon should be adVIsed promptlv when the employer consIders hIS, her or ItS conduct Improper) so that It can govern It self accordmgly and mmlmlze the consequences for Itself and others should the complamt be establIshed. Delay m ralsmg complamts for resolutIOn IS an tIthetIca1 to labour relatIOns expectatIOns and accepted practIces [21] In some CIrcumstances, the stnct applIcatIOn of a one-sIze-fits all tIme lImIt would seem unfair and a lImItatIOn proVIsIOn that seemed to cause un fairness mIght do more harm than good to labour relatIOns Unless the partIes have expressly excluded ItS applIcatIOn, subsectIOn 48(16) of the Labour Rela twns Act affords arbItrators the power to extend collectIVe agreement tIme lImIts m the gnevance process, mcludmg agreed upon tIme lImIts for filmg gnevances The arbItrator or arbItratIon board may only exerCIse that power however If satIsfied of two thmgs that there are reasonable grounds for the extensIOn and that the OpposIte party WIll not be substantIallv prejUdICed by the extenSIOn. [22] There are two schools of thought about what may constItute "reason able grounds" for extenSIOn. Some arbItrators have said that to establIsh "rea sonable grounds" the umon must establIsh a reasonable explanatIOn for the defaultmg party's non-complIance wIth the tIme lImIt, that the cause of the delay was beyond the defaultmg party s control and not due to that party s faIlure to exerCIse due dIlIgence Re Corporatwn of the CLty of Toronto (Ab bott), supra, at 127, Re Carborundum Canada Inc., supra, at 439 Others, m cludmg thIS arbItrator, take the VIew expressed hJLarbItrator Burkett m the above-quoted passage from Re Becker Milk Co Ltd., that while the reason ableness of the excuse for the delay IS an Important consIderatIon, the nature of the gnevance and the length of the delay must also be consIdered m as- sessmg whether there are reasonable grounds for extenSIOn. Adoptmg that VIew, Professor SchIff offered an expanded lIst of consIderatIOns m Re Greater Niagara General HospLtal, supra: the nature of the gnevance, whether the delay occurred m mltIally launchmg the gnevance or at a later stage, whether the gnevor was responsible for the delay, the reasons for the delav the length of the delay and whether the employer could reasonably have assumed the gnevance had been abandoned. - [23] However one descnbes the consIderatIOns, on thIS VIew of the "rea sonable grounds reqUIrement an extensIOn to permIt a gnevance to proceed concermng a senous and Important matter, such as a dIscharge may not be precluded when the defaultmg party s excuse for delay IS not Itself reason able In that event, however, the length of the delay and other delay related consideratIOns become cntIcal m assessmg whether there are reasonable grounds for an extenSIOn. [25] The effect of delay may be that the Opposite party would suffer sub stantIal prejUdiCe If an extensIOn were granted. PrejUdICe caused by delay IS sometImes eaSIly identIfied. A Witness who would have been avaIlable for an ensumg arbitratIOn heanng had the grievance been filed m a tImely way may - - 13 have smce dIed or become mcapacItated or otherwIse unavailable to testIfy Documents that the respondent would have preserved had It known of a dIs- pute to WhICh they were relevant may have been destroved m the ordmary course of busmess, or lost. Other actIOns may have been taken that demon strablv would not have been taken had the dIspute been asserted m a tImely way and whIch may now be to the respondent's detnment If the dIspute IS allowed to proceed. Here there IS no Identrfiable element of specIfic prejUdICe resultmg from the delay- no demonstrably needed WItness who has dIed or otherwIse become unavailable m the meantIme, no arguably relevant docu ment that has been destroyed or lost. [26] The prejudIce caused by delay may also be more subtle and, bv ItS na ture, dIfficult to demonstrate. The memones of WItnesses who are strll avaIl able WIll nevertheless have faded, partrcularly If there has been no notrce that they may have to testrfy 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 notrce of the dIspute Those now concerned wIth the dIspute may not be able to determme what testImony or documents would have been dIscovered and preserved earlIer had there been trmely notrce of the dIspute They may not know what statements would have been gIven at the trme by those WItnesses whom they can now Identrfy, nor what mIght have been found m documents known to have eXIsted then that have smce been destroyed. Indeed, they may not now know of or dIscover helpful WIt. nesses or relevant documents whose eXIstence would have been dIscovered had trmely assertIOn of the dIspute tnggered an earlIer search for them. It IS m the nature of these forms of prejudIce that theIr precIse effects and perhaps even theIr eXIstence m a partrcular case cannot be demonstrated. [27J It must be remembered that- subsectIOn 48(16) of the LRA Identrfies the eXIstence of reasonable grounds for an extenslOn IS a questIOn dIstmct from whether the OpposIte party would suffer substantral prejUdICe If an ex tensIOn were granted. A defaultmg party who lacks a reasonable excuse for delay cannot claIm the benefit of the more liberal VIew of the reasonable grounds test, whIch treats the length of the delay as a dIstmct consIderatIOn m assessmg reasonable grounds, and then mVIte the arbItrator or arbItratIOn board to Ignore the delay because It has not resulted m specIfic demonstrable prejudIce to the OpposIte party s abilrty to defend ItS posItIOn If the grIevance IS allowed to proceed. [28] The possibIlrty that delay may have had more subtle prejUdICIal ef fects, effects that may not be detectable or demonstrable, IS one reason why the length of the delay IS an appropnate consIderatIOn m assessmg whether there are reasonable grounds" for an extensIOn, even when the respondent cannot demonstrate actual prejUdICe Another reason why delay should be treated as a consIderatIOn mdependent of any demonstrable prejUdICIal effect IS respect for the bargam the partres have struck. The partres here have agreed that a dIscharge grIevance must be filed wIthm 10 days They made theIr mtentIOn that thIS be mandatory clear by theIr further agreement that gnevances not processed wlthm the trme prescribed are deemed to have been wIthdrawn. Of course, they did thIS m the shadow of subsectIOn 48(16) of the LRA, the applrcatIOn of whIch they could have precluded but dId not. There IS nothmg m the subsectIOn, however, that suggests that arbItrators are to en tIrely Ignore partIes agreement to specIfic trme lImIts as a consIderatIOn In exercIsmg the power conferred, or that they are to proceed as though they - - 14 were sImply exerclsmg the dIscretIOn to dIsmIss for delav that they could have exercIsed If there had been no such agreement. [29] Even when the OpposIte party cannot demonstrate substantIal conse- quent prejUdICe delay that IS due to lack of due dIlIgence on the part of the gnevor or someone actmg on hIS or her behalf can be so extreme that the 1m portance of a dIscharge grIevance WIll not be suffiCIent baSIS for usmg the power m subsectIOn 48(16) of the LRA to overnde agreed upon tIme lImIts for filIng a gnevance [29] Even If the gnevor here dId not abandon hIS potentIal gnevances, he cer tamly dId not exerCIse due dIlIgence m consultmg the umon about them or oth erWlse pursumg them. Even Ignormg the delay before January 1994, the delay thereafter IS so extreme that the Importance of these gnevances IS not a suffi clent baSIS for usmg my power under subsectIOn 48(16) of the Labour Relatwns Act 1995 to overnde the agreed upon tIme lImIts for filmg a gnevance The re quest that I do so IS therefore demed. [30] It IS not necessary for me to determme whether the outcome of the gnevor's 1993 complamt to the HRC constItuted a settlement that would have precluded hIm from makmg the same allegatIon of dlscnmmatIOn m tImely pro- ceedmgs before thIS Board. Even If It dId, that "settlement" would probably not preclude the gnevor's other gnevance m the absence of a broadly worded release of all clalms ansmg from the demal of the pOSItIon. That other gnevance IS to the effect that denymg the gnevor the TEa 3 pOSItIon m 1992 was a breach of the collectIve agreement even If dIscnmmatIOn on a prohIbIted ground played no part m the deCISIOn Although thIS IS framed m hIS 1997 gnevance as ansmg un der ArtIcle 6 ("but not exclusIVely") ofthe- 1994-98 collectIve agreement, the claIm as framed at hearmg IS not that hIS skIll and abIlIty were relatIVely equal to those of a successful but more Jumor fellow applIcant m a competItIOn. HIS clalm IS that he ought to have been gIVen the pOSItIon WIthout a competItIOn, on the baSIS that he had a nght to It If he had the mmlmum qualIficatIons for the Job ThIS nght IS saId to flow ultImately from an agreement by whIch proceedmgs under the then Workers Compensatwn Act were settled The Issues before me were argued on the ImplICIt assumptlOn that such a clalm could be the subject of - - 15 a gnevance under the collectIve agreement In the result, It WIll also be unneces sary for me to determme whether that assumptIOn IS true [31] I have found that these gnevances are untImely and I have demed the re- quest that I extend the tIme for filmg the gnevances m order to render them tImely Accordmgly, the gnevances are dIsmIssed Dated at Toronto thIS 14th day of June, 1999 I ~ / Gray, VIce Charr - -