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HomeMy WebLinkAbout2019-2484.Butcher.23-08-09 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2019-2484 UNION# 2019-0616-0014 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Butcher) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Brian McLean Arbitrator FOR THE UNION Laura Johnson Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER Joohyung Lee Treasury Board Secretariat Legal Services Branch Counsel HEARING March 1 and June 20, 2023 - 2 - Decision [1] This is a grievance dated August 15, 2019 which states: I grieve that my employer at the North Bay jail violated specifically, but not limited to, articles 2, 3, 6, 7, of the Collective Agreement, the OHRC, the Health Reassignment Program and any other related acts, policies or legislation by failing in their duty to accommodate me to a position in the workplace after being physically injured in the workplace. My employer failed to offer me the position of Rehabilitation Officer available at the North Bay jail. (emphasis added) [2] The central issue in this grievance therefore is whether the Employer was obligated to offer the Grievor the rehabilitation officer position (the ROP). That relatively straight forward question arises out of quite unusual facts. Those facts have led to the Employer raising two preliminary issues which were argued before me, and which are determined by this decision. The first preliminary motion is that much of the grievance is untimely and ought to be dismissed. The second is that much of the grievance does not make out a prima facie breach of the Human Rights Code (the Code) or the collective agreement and also should be dismissed. [3] The Grievor is a correctional officer at North Bay jail. The Grievor sustained an injury at work in early 2016 which caused him to be absent from the workplace on a medical leave of absence until approximately the summer of 2016. The Grievor now has permanent restrictions resulting from his injury. These restrictions prevent him from assuming direct care and control responsibilities over inmates. [4] In or about late 2016, the Grievor entered the Employer’s Health Reassignment Program, through which the Employer was to search for positions for which the Grievor was qualified and in which he could be accommodated. In the interim, the Employer temporarily accommodated the Grievor in the workplace by assigning him to work in the control module of the North Bay Jail, an assignment in which he would not be required to have direct care and contact with inmates. He remained in that position through 2018 and beyond. - 3 - [5] The ROP became vacant as a temporary position in or about May 2018. The Grievor did not seek the ROP at that time and did not grieve how it was filled. The Union’s particulars, which I must accept as true and provable for the purposes of the motion, state: 2018 Temporary North Bay Rehabilitation Officer Position 6. In or about May 16, 2018, the Employer released an internal posting for a temporary position as a Rehabilitation Officer at the North Bay Jail (the “Temporary Posting”). The Temporary Posting was for a one-year period and contained a deadline of May 31, 2018 for submitting expressions of interest. The Temporary Posting did not include a job description for the position, nor did it provide any information about the qualifications it required. 7. Mr. Butcher did not apply for the Rehabilitation Officer position at that time because he believed that he was not qualified for the position. 8. At no time did the Employer, either via Management of the North Bay Jail, or through the Health Reassignment Program, raise the possibility of assigning Mr. Butcher to the Rehabilitation Officer Position (the “Position”). Instead, the Employer assigned another Correctional Officer, Amanda Saucier (now Etches), to the Position. She commenced her duties in the Position on June 26, 2018. 9. The Union is aware that several other Correctional Officers did apply for the Position in response to the Temporary Posting, including Tracy Hill, who had higher seniority than Ms. Saucier, and Catherine Robichaud who had higher qualifications than Ms. Saucier. [6] In its argument, the Union also stated that there was another reason for the Grievor’s decision not to file a grievance regarding the ROP in May 2018. That reason was that the Grievor was looking for a permanent position and was not interested in the ROP at that time since it was a temporary position. [7] On May 8 of 2019, the Grievor was contacted by a disability accommodation assistant from the Employer’s Centre for Employee Health, Safety and Wellness. - 4 - The disability assistant brought to his attention that there was an opening in a ROP at the Algoma Treatment Centre in Sault Ste. Marie. She informed him that he would qualify for the position through the Health Reassignment Program because he had the skills and qualifications required for the position. This was the first time that the Grievor became aware that he was qualified to work in the ROP. [8] The Grievor did not accept the ROP in Sault Ste. Marie because it would have required him to re-locate 437 km from North Bay, where his children reside. The location of this position fell outside of the 125 km distance for placements through the Health Reassignment Program. [9] Approximately one year later the employee who had assumed the temporary ROP in 2018 was converted to permanent status in the ROP. The Grievor believes that the permanent position should have been given to him as a further accommodation of his medical restrictions and grieved. During the course of the grievance procedure, and otherwise, the Union raised, in addition to the specific allegations set out in the grievance, that the Employer failed to properly post the temporary ROP and improperly assigned the other employee to the permanent ROP after the temporary assignment was concluded. As the grievance notes, the Union takes the position that the Grievor should have been awarded both the temporary and permanent ROP as an accommodation of his disability. The Union’s particulars state: 2019 Permanent Rehabilitation Officer Position 12. At the time that Mr. Butcher learned that he was qualified for the Rehabilitation Officer Position, Ms. Saucier was still occupying the temporary Position at the North Bay Jail. The term of that Temporary Posting expired on June 26, 2019. 13. Knowing that he was qualified for the Position, the Grievor decided to apply for the permanent position when it was posted. Within a few days of his receipt of the May 8, 2019 email he received with respect to the Sault Ste. Marie Rehabilitation Officer position, the Grievor approached the Deputy Superintendent to inquire when the Permanent Position would be posted. He was told that it would be - 5 - posted; that the Deputy Superintendent hadn’t heard anything about the posting yet; and that the Grievor would see the posting when it went up. 14. The Grievor repeated this inquiry of the Deputy Superintendent several other times about the Position over the course of June and July of 2019. He received substantially similar responses to each of these inquiries. 15. Finally, in or about late July or early August of 2019, the Grievor repeated this inquiry of the Deputy Superintendent. This time he was told that the Position had been filled. Shortly thereafter, the Grievor learned that Ms. Saucier was the employee to whom the Deputy Superintendent had been referring, who had been chosen to fill the Rehabilitation Officer Position. Grievance 16. Upon learning that the Position would not be posted and that Ms. Saucier had been assigned to the role without a competition, Mr. Butcher filed the present grievance, dated August 5, 2019. [10] The Grievance was ultimately referred to arbitration on January 15, 2020. [11] In respect of the facts detailed above, the Union’s position is as follows: 1. That the Employer had a duty to provide the Grievor with a permanent accommodation of his restrictions due to disability and that, in failing to canvass the ROP at the North Bay Jail as a potential accommodated position for the Grievor, the Employer failed in its duty to accommodate him, in violation of the Code, and Articles 2 and 3 of the Collective Agreement; 2. That the Employer had a duty, in accordance with Articles 2, 3 and 6 of the Collective Agreement, and in Accordance with the Code, to post the ROP both when it was initially posted as a temporary posting in May of 2018 and following the expiry of that temporary ROP in June of 2019. The Employer failed to post the ROP, and in doing so violated the posting requirements pursuant to Article 6 of the Collective Agreement and its procedural duty to accommodate pursuant to Article 3 of the Collective Agreement and the Code. - 6 - The Motions [12] The Employer has three preliminary arguments. As noted, in this motion it argues two of them. First it argues that the particulars of the grievance respecting the duty to accommodate do not disclose a prima facie breach of the collective agreement or the Code because the Grievor has already been accommodated by being placed in the control module position. It notes that the Grievor remains in the control module position as of the date of the hearing, five years later. Its second argument is that the grievance respecting the alleged failure to post the temporary ROP in May 2018 was filed out of time, having been filed more than 14 months after the posting and in fact after the one-year term of the temporary job had concluded. This decision determines the motions. Do the Particulars Disclose a Prima Facie Breach of the Code and/or the Collective Agreement? [13] The parties agree on the test for establishing a prima facie breach of the collective agreement or Code. One articulation of the test and the legal principle involved is set out in the Grievance Settlement Board (GSB) decision of Ontario Public Service Employees Union (Martin et al) v Ontario (Community and Social Services), 2015 CanLII 60449 (ON GSB) (Anderson): [3] There is little disagreement between the parties as to the principles applicable to a motion alleging the particulars of a grievance fail to make out a prima facie case. In order to succeed, the moving party, in this case the Ministry, must establish that the "facts asserted in support of a grievance, if accepted as true, are not capable of establishing the elements necessary to substantiate the violation alleged": Couture, 2011 CanLII 100922 (ON GSB), (Dissanayake). Arguments or conclusions do not constitute allegations of fact. Accordingly, they need not be accepted as true for the purposes of a no prima facie case motion. [6] The question is whether the asserted facts, taken as a whole, constitute particulars capable of supporting the violation of the collective agreement alleged. As the Union argues, the words "capable of supporting the - 7 - violation" are of some significance. What matters for the purposes of the no prima facie case motion is whether the party responding to the motion, in this case the Union, has articulated a legal theory which, on the facts it has particularized, could reasonably support a conclusion that there is a violation of the collective agreement. Therefore, the particulars are to be assessed against the responding party's theory of the case. Whether that theory is correct need not be determined at this stage in the proceedings. Provided the responding party's theory is reasonable and it has provided particulars which, if true, would result in a finding of a breach on the application of that theory, the motion should be dismissed. [14] With respect to discrimination, the GSB commented in Ontario Public Service Employees Union (Grievor) v Ontario (Ministry of Health), 2019 CanLII 78764 (ON GSB) (Anderson), at para. 39: The Union's legal theory is that the Employer has engaged in discrimination as claimed by the Grievor. Discrimination in employment is made out if a clamant establishes three things: (1) The claimant has a characteristic protected from discrimination under the collective agreement or the Code; (2) The claimant has experienced adverse treatment with respect to his or her employment; and (3) The protected characteristic was a factor in the adverse treatment, i.e. a causal nexus between the first two items. While the burden of proof remains on the claimant through-out, because the reasons for the treatment lie within the responding employer's knowledge, relatively little affirmative evidence is required to establish a prima facie case of discrimination, which gives rise to an "evidential burden" on the employer to provide a response justifying its actions: see Peel Law Association v. Pieters, 2013 ONCA 396 (CanLII), at paras. 55 and 56 and 64 to 74. - 8 - [15] I also note the following comments from that case which are applicable here: 7. The Union places particular emphasis on the holding in Peel Law Association that relatively little affirmative evidence is required to give rise to an evidential burden on the employer to provide a response justifying its actions. It notes observations in other cases that there is rarely direct evidence of discrimination. Rather discrimination is often subtle and must be proven by circumstantial evidence. It notes in Ontario Public Service Employees Union (Gauntlett) v Ontario (Ministry of Finance), 2008 CanLII 70504 (ON GSB), within the context of a non-suit motion, Arbitrator Gray held: [32] ... [T]he test must be whether, in the end, one might reasonably infer unlawfully discriminatory motivation from all or some part of the behaviour about which the witnesses testified if all of the evidence they presented about that behaviour and its context is considered to be true and if no evidence is adduced (through those whose behaviour and motivation were in question, or otherwise) to support some other explanation for the behaviour. [33] The test, then, is only whether discriminatory motivation is a possible explanation of the behaviour described in evidence, having regard to all of that evidence, not whether it is the only possible explanation or the most probable of the possible explanations or more probable than the sum of the probabilities of all other possible explanations or whatever the appropriate test may be when it comes time to weigh the evidence. [34] This is not to say that an attempt to prove discrimination will survive a non-suit motion on the basis of facts that would create no more than mere suspicion of discrimination even if left unanswered. The difficulty is in distinguishing between "valid inference" and "mere suspicion." In drawing that line in this context one must consider that the issue concerns the motivation of people for whose conduct the moving party is responsible, whom it is in a position to call as witnesses and who are in the best position to explain why they did what they did. [Footnotes omitted.] - 9 - 8. I accept similar principles apply to a motion for dismissal on the basis of no prima facie case. Assuming the facts alleged by the complainant are true and capable of proof, do they describe conduct which, in the absence of evidence to the contrary, support as a possible inference discriminatory motivation on the part of the persons engaged in that conduct? [16] The Employer’s central argument with respect to this issue is that it had already fulfilled its duty to accommodate the Grievor’s disability by placing him in the control module position in or around mid-2016. It notes that there is no dispute that the control module position is a suitable position, given the Grievor’s medical restrictions and that the Grievor has successfully worked in the position for a lengthy period of time. While it agrees as part of this motion that it cannot rely on the fact that the Grievor remains in that position to this day, it notes that the Grievor had been in that accommodated position for more than a year and a half prior to the posting of the temporary (1 year contract) ROP in May 2018. [17] The Employer also argues that there is no discrimination here and thus the duty to accommodate does not come into play. The Grievor was off work and then was able to return to work with the medical restriction of not being able to have contact with inmates. The Grievor was placed in the temporary position of control module officer at the same rate of pay and other conditions of employment and remained in that job until the grievance was filed and beyond. At the time the grievance was filed, the Grievor had not suffered any adverse employment consequence because of his disability and never has since he was accommodated when he was able to return to work. In these circumstances there is no ongoing discrimination and the duty to accommodate does not continue in the absence of discrimination. [18] The Employer also relies on a series of cases which state, in effect, that employees do not get their choice of accommodation or even the best accommodation so long as the accommodation offered to the Grievor is reasonable. A useful starting point in assessing this argument is the Supreme Court of Canada’s decision in Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970, (“Renaud”) where the Court was faced - 10 - with a claim that the Employer and the Union had not accommodated an employee’s religious beliefs in that they refused to change his hours of work so that he could observe his Sabbath. In discussing the duty of the complainant in the accommodation process the Court stated: This does not mean that, in addition to bringing to the attention of the employer the facts relating to discrimination, the complainant has a duty to originate a solution. While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer's business. When an employer has initiated a proposal that is reasonable and would, if implemented, fulfil the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept reasonable accommodation. This is the aspect referred to by McIntyre J. in O'Malley. The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer's duty is discharged. (emphasis added) [19] Here the Employer argues that it offered reasonable accommodation, the control module position, and that accommodation was accepted and continues to be both reasonable and suitable. [20] The Supreme Court’s reasoning in Renaud was applied in Children’s and Women’s Health Centres of British Columbia, where it was clear that the employee was not happy with the Employer’s proposed accommodation. The board of arbitration determined, however, that the employee’s subjective feelings about the offered accommodation were not relevant. It concluded in relevant part at paras. 134- 137: The essence of the duty to accommodate is that the parties to an employment relationship are legally required to take reasonable measures, short of undue hardship, to accommodate the statutorily protected characteristics of individual employees, including that of disability. - 11 - The test of reasonableness is not subjective to the employee. The litmus test is not whether the employee gets what he or she wants. We accept, as we must, the direction of the Supreme Court that what constitutes reasonable measures in relation to the issue of whether the employer has complied with its duty to accommodate a disabled employee, is a question of fact. It is the objective facts that must govern the result, not the subjective feelings or impressions of the grievor or other witnesses as to how she felt about how she was being treated. If we conclude, on the basis of all the facts before us, that reasonable measures to accommodate the grievor’s disability were taken by the employer, the grievance must be dismissed. [21] In addition, the decision in CANPAR and United Steelworkers of America, Local 1976, supra, a decision under the Canadian Human Rights Act, rejects the “most appropriate accommodation” requirement. In that case, to accommodate an employee’s need, for religious reasons, not to work on late Friday afternoons, the employer assigned the grievor to a more centrally located route which allowed for the substitution of other drivers on Friday afternoons, without difficulty. A number of other alternatives were suggested, but not the one that the grievor favored – retention of his former route, with relief on late Friday afternoons. The Company argued that it was under no obligation to suffer hardship itself by being compelled to hire an additional employee, or to adjust the grievor’s former route in ways that were not operationally feasible. The arbitrator ruled that “it is incumbent upon the employee concerned to contribute positively to the process, and to accept an offer of reasonable accommodation, even though it might not be the specific accommodation which the employee would prefer.” (93 L.A.C. (4th) at 212) Even if the new route were less desirable, he ruled that “it would not be unreasonable to expect the grievor to contribute to the process by accepting the adjustment.” The arbitrator concluded, at p. 214: While it may be arguable that different formulas of accommodation might be fashioned, some of which could be more appealing to [the grievor], it is not the obligation of the Company under the Canadian Human Rights Act to necessarily offer an employee seeking accommodation the precise accommodated assignment that he or she might demand. In contrast, the case cited by the Union, Quesnel v. London Educational Health Centre, - 12 - supra, does state, at para. 16, that “[w]hat is appropriate in a given situation will vary from person to person, but the analysis must recognize that, short of undue hardship, the highest point in the continuum of accommodation must be achieved.” In that case, however, the “highest point” in the accommodation continuum, the construction of an elevator, was found to be “impractical and the cost prohibitive.” Accordingly, a lesser form of accommodation, a ramp, was ordered. In my view, an employee in a health reassignment situation is not entitled to the “most appropriate accommodation.” An employee is entitled to a “reasonable accommodation”, short of undue hardship, considering all of the circumstances. Consequently, the issue is whether the Control position is a reasonable accommodation in all of the circumstances, regardless of whether there might be other possibly more appropriate accommodations short of undue hardship. (emphasis added) [22] Similarly, in Balog 2004 CanLII 55290 (ON GSB) 114 the Vice Chair stated: In my view, an employee in a health reassignment situation is not entitled to the “most appropriate accommodation.” An employee is entitled to a “reasonable accommodation”, short of undue hardship, considering all of the circumstances. Consequently, the issue is whether the Control position is a reasonable accommodation in all of the circumstances, regardless of whether there might be other possibly more appropriate accommodations short of undue hardship. [23] The Union argues that because the Grievor had permanent medical restrictions, there was a continuing obligation on the Employer to find a permanent accommodation to replace the temporary accommodation of control module officer. It argues that since, unlike the Grievor, the Employer knew the Grievor had the capability to perform the ROP it should have offered him the temporary ROP. Had he accepted that position then, like CO Saucier, he would have been placed in the permanent ROP and would have then had a permanent accommodation for his permanent medical restrictions. Alternatively, even if the Grievor was not offered or did not accept the temporary ROP he should have been placed in the permanent ROP in 2019 when it became available. - 13 - [24] The Union asserts that the Employer knew it had an ongoing obligation to find the Grievor a permanent position since it was doing just that as part of its health reassignment process. It was through that process that the Grievor was offered the ROP in Sault Ste Marie, which he rejected. It is improper for the Employer to offer him the permanent ROP in Sault Ste. Marie but not offer him the available permanent ROP in North Bay, where he lives and works. Decision [25] The central question before me in this part of the motion is has the Union pled sufficient facts to establish a case of discrimination. This requires me to consider whether the Employer has satisfied its duty to accommodate the Grievor by assigning him to work in a temporary position or whether it had an ongoing obligation as part of the duty to accommodate to find a permanent position. In my view this is a question that can be answered as part of this motion. All of the facts that are required to answer the question are before me and none of the salient facts are in dispute. The parties made full legal argument on the point. There would be no benefit to hearing evidence. [26] The starting point of the analysis is that there is no dispute that the control module position is appropriate to meet the Grievor’s medical needs. The Grievor had been in the position for more than a year before he filed this grievance with no suggestion that, other than its temporary nature, he had any concerns about it. In my view, the Employer had fulfilled its duty to accommodate the Grievor at that point and for so long as it was prepared to continue the Grievor in the temporary position, as it was. Its duty to accommodate would only arise again if something changed so that a neutral requirement had an adverse impact on the Grievor. [27] I am satisfied that accommodation in the temporary control module position was and is entirely reasonable. It might be “better” if the Employer found a permanent position for him but, as the cases relied on by the Employer make clear, that is not required. I note that the Grievor was free to apply to permanent job openings that - 14 - were within his medical restrictions with or without accommodation. However, the Employer was not required to offer him more. [28] I disagree that the Employer’s efforts under its health reassignment policy are relevant here. It is not suggested that the policy is a part of the collective agreement. It is one of the ways that the Employer satisfies its duty to accommodate when employees have permanent restrictions. It clearly also is a potential way to provide the Employer more flexibility in how it schedules employees and can make openings in positions for others that require accommodation. The question is whether the Employer has complied with its duty to accommodate, not whether it has conducted its health reassignment process in a particular way. [29] For these reasons, I find that the Union has not pled facts which make out a prima facie case of discrimination under the Code or collective agreement. The Employer placed the Grievor in a job that met his medical restrictions and retained him in that position as of the date the grievance was filed, and he remained in that position to at least the date at which all of the events raised in the Union’s grievance occurred. It was reasonable for the Employer to do so. The Grievor, in effect, seeks better accommodation. However, as the cases relied on by the Employer make clear, the duty to accommodate does not require the Employer to provide a better job so long as the accommodation provided is reasonable. [30] In coming to this conclusion, I do not necessarily mean to say that a temporary accommodation of a permanent disability will always amount to reasonable accommodation. For example, it is not difficult to imagine that a series of temporary accommodations might interfere with a disabled employee’s dignity and well-being. Of course, that is not what happened here. The Grievor was placed in a temporary position for a considerable period of time and remained there as of the date of the grievance. - 15 - Are Aspects of the Grievance Untimely? [31] The collective agreement contains the following provision regarding when grievances must be filed: 22.2 If the complaint or difference is not resolved at the local level an employee may file a grievance, in writing, through the Union, with their manager within thirty (30) days after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee, who will in turn forward the grievance to the designated management representative. [32] The Union argues that the circumstances giving rise to the grievance occurred and ought reasonably to have come to the attention of the Grievor when the Grievor became aware that he had the necessary skill and ability to do the resource officer job. That only occurred, it argues, in May 2019 when he was advised of the opportunity to take the ROP in Sault Ste. Marie as is described in paragraph 10 of the particulars. [33] I disagree with the Union. First, to the extent that the Union asserts that there were breaches of the collective agreement when the temporary ROP was internally posted in North Bay, it is clear from the particulars that the Grievor was aware that the posting made on or about May 16, 2018, was an “internal posting for a temporary position as a Rehabilitation Officer at the North Bay Jail”. He was also aware that the posting was for a one-year period and contained a deadline of May 31, 2018, for submitting expressions of interest. He must also have been aware, as the Union states now, that the posting did not include a job description for the position, nor did it provide any information about the qualifications it required. In other words, the Grievor had all of the information he required to make the claim that he made more than a year later, that the posting was not done in accordance with the posting provisions of the collective agreement. There is no suggestion that there was any information that the Grievor did not have. - 16 - [34] I also find that the Grievor’s ignorance that he was qualified for the ROP does not change the date at which the timeline runs. The Grievor was aware at the time that the posting did not contain the qualifications for the position as the Union asserts was required. At that time, he had at least two options open to him: he could have asked about the qualifications, or he could have filed a grievance to require that the qualifications be included in the posting. Instead, he did neither; he made an assumption that he was not qualified. In any event, the Grievor did not want a temporary position and there is no suggestion that he should have been offered a permanent ROP at that time. The only reason that any of this is even an issue is because the person who was awarded the temporary position, CO Saucier, was then directly awarded the permanent position which is the remaining part of this grievance. [35] The point is that the time limits in the collective agreement refer to the circumstances giving rise to the complaint. The complaint is that the ROP was not posted properly. All of the circumstances giving rise to that complaint were known to the Grievor at the time he decided not to file a grievance. [36] I come to a similar conclusion with respect to the accommodation aspect of the grievance. Leaving aside the issue of whether the Grievor had already been accommodated, which is discussed above, I find that the circumstances of the grievance ought reasonably have come to the attention of the Grievor at the time of the temporary ROP posting. The Grievor was seeking a permanent position. It was open to him to find out whether the temporary ROP was within his medical restrictions and skills and abilities. Whatever else might be said, there was no obligation on Employer, as part of the duty to accommodate, to move the Grievor from one temporary position to another and therefore, there was no obligation for it to advise the Grievor that he was qualified for the temporary ROP. [37] For these reasons I find that the grievance respecting the May 2018 events is untimely. The Union urges me to extend the time limits in accordance with my authority to do so under the collective agreement and the Labour Relations Act. - 17 - Both parties referred to Becker Milk which sets out a list of factors which arbitrators might consider in deciding whether to exercise their discretion to extend time limits. Of those factors, critically, the length of the delay is significant. In fact, it is so significant that the temporary job which the Grievor seeks to obtain has already concluded. What the Union seeks is an extension so that the Grievor can make a theoretical application. [38] Moreover, the Grievor’s explanations for the delay are not compelling. One is that he did not want the job because it was temporary; he only wants it now because of the possibility that it might assist him in getting the permanent job. The second is that he was not aware that he was qualified for the job. These sorts of explanations could, if accepted, lead to chaos in the job posting process. Employees could claim ignorance about all sorts of things and then seek to overturn a posting award after making a conscious decision not to participate in the posting process. [39] These are not circumstances which suggest that the period of time for filing a grievance regarding the May 2018 posting should be extended and I decline to do so. [40] As a result of this decision, what remains of the grievance relates to the challenge to the direct awarding of the position to CO Saucier. I refer the matter to the parties for consideration of next steps which I note may involve notice to the incumbent. Dated at Toronto, Ontario this 9th day of August 2023. “Brian McLean” _____________________ Brian McLean, Arbitrator