GSB#1811/98
OPSEU#99B236
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Szabo)
Grievor
- and -
The Crown in Right of Ontario
(Ontario Realty Corporation)
Employer
BEFORE Bram Herlich Vice-Chair
FOR THE Don Martin
GRIEVOR Grievance Officer
Ontario Public Service Employees Union
FOR THE Fateh Salim, Counsel
EMPLOYER Legal Services Branch
Management Board Secretariat
HEARING June 23, 2000, January 29, 2001.
DECISION
On December 4, 1998 the grievor filed a grievance alleging that he had been “unjustly and improperly dismissed”. It is common ground that the events giving rise to that claim were apparent some three years earlier in December of 1995 when the grievor received formal notice from the employer that his position was to be surplused in accordance with Article 24 of the collective agreement. It is that process which is now pointed to as an unjust and improper dismissal.
The employer asserts that the grievance is untimely and ought to be dismissed on that basis. While not seriously challenging the untimely nature of the grievance, the union asks that I exercise the discretion both parties agree I have to extend the time limits in this case. The employer denies that there are any proper grounds for the exercise of that discretion.
This decision is restricted to the timeliness issue and the question of whether I ought to exercise my discretion in that regard.
The parties were able, for the purposes of this decision, to agree upon the basic facts as follows:
The Grievor, John Szabo, commenced employment as an Electrical Inspector with the Ministry of Government Services on October 5, 1987.
By Order in Council 356/93, the Ministry of Government Services functions were transferred to Management Board Secretariat (“MBS”).
On or about July 15, 1993, the Grievor filed two grievances. The 1993 grievances are not related to the present grievance.
In or about 1994, MBS staff providing services to the Ontario Realty Corporation were transferred to the Ontario Realty Corporation (“ORC”). The ORC is a corporation under the Capital Investment Plan Act, 1999, c.23, as amended, carrying out the business of providing, to the Government of Ontario and to others, services and financing related to real property and improvements to real property.
The Grievor was amongst the staff transferred in 1994 and continued working as a Building Contracts Administrator with the ORC.
At all material times herein the Grievor was a member of the Ontario Public Service Employees’ Union (“OPSEU”).
On December 29, 1995 the Grievor received six (6) months notice that his position with the ORC was to be surplused in accordance with Article 24 of the applicable Collective Agreement. Under Article 24, a position could be surplused where there is a shortage of funds or work.
On or about January 10, 1996 the Grievor accepted his surplus notice and severance payments. The Grievor worked through his six (6) month notice period. For the six (6) month notice period, the Grievor, at his own request, was placed with a private sector firm in order to assist him in training for future job prospects. The ORC provided the Grievor with full salary and benefits during his placement.
On January 22, 1996, Mr. Szabo placed the Crown on notice regarding a statement of claim [regarding what was described as his having been “improperly terminated by the Ontario Provincial Government”].
On or about June 20, 1997 the Grievor commenced a civil action against the employer in the Ontario Court (General Division).
On or about May 11, 1998 the Employer brought a motion to have the Grievor’s action dismissed. The Court dismissed the Grievor’s action on the grounds that it had no jurisdiction over the subject matter of the action.
On or about June 30, 1998 the Grievor appealed this decision to the Ontario Court of Appeal.
On or about December 4, 1998, the Grievor filed his grievance.
On or about October 25, 1999 the Court of Appeal dismissed the Grievor’s appeal.
At the initial day of hearing (June 23, 2000), the parties consented to adjourn this matter largely as a result of late notice to the employer that the union intended to call evidence it asserted would establish that, during the civil litigation process, the employer had made representations indicating that it would not pursue any timeliness objections.
When the matter reconvened on January 29, 2001, we heard the evidence of Mr. Robert MacRae, who had been the grievor’s counsel throughout the civil litigation proceedings. At the commencement of that second day of hearing, Mr. Martin had indicated on behalf of the union (and perhaps at variance with the previous advice), that Mr. MacRae’s testimony would fall short of establishing any explicit waiver of time limits by the employer. We were told, however, that it would support the conclusion that there had been at least an implicit agreement or waiver such that the employer ought not to be permitted to rely on its timeliness objection or, put more precisely, such that I ought to be influenced to exercise my discretion in the grievor’s favour. As will be described shortly, Mr. MacRae’s evidence failed to live up to even that diminished advance billing. As a consequence and although the employer had arranged for the presence and possible testimony of counsel who had represented it in the civil litigation, the employer opted to call no evidence.
The agreed facts set out earlier require some supplementation in view of the evidence from Mr. MacRae. This was not the first time Mr. MacRae had represented the grievor. Few details were presented or are necessary for our current purposes. It would appear, however, that sometime prior to his alleged dismissal the grievor was a co-defendant (along with his employer) in a proceeding commenced by a person who had dealings with the grievor and his employer. That matter was settled. During the course of or as part of the settlement of that matter, it is alleged that certain promises were made to the grievor by the employer. His subsequent termination, it is asserted, was inconsistent with those promises.
Consequently, when the grievor received his surplus notice, he sought Mr. MacRae’s advice. Although we heard no testimony from the grievor, the evidence and agreed facts before me suggest that the earliest date upon which he sought any counsel from the union regarding his collective agreement rights was in June of 1998 some 2½ years after receiving his surplus notice. In any event, the grievor and his counsel formed the shared view that since the grievor’s rights were founded in a settlement and/or promise secured in the context of the earlier civil action, those rights could not be enforced within the collective bargaining regime or under the collective agreement. The proper manner of enforcing those rights was thought to be by way of a civil action. That action was commenced in June of 1997 (notice of such intention having been provided to the Crown in January of 1996).
From the outset in responding to the Statement of Claim (and throughout the litigation process), the employer took the position that the court lacked jurisdiction to hear the matter because the grievor’s terms and conditions of employment were governed by the terms of the collective agreement and that the proper forum for challenging the grievor’s termination was through the grievance and arbitration procedure, a process that the grievor had failed to engage.
Even in the face of that formal position clearly and explicitly articulated in the employer’s Statement of Defence in July of 1997, the present grievance was not filed until December of the following year.
As set out earlier, the employer’s motion to dismiss the case was granted in May of 1998. In its endorsement the Court concluded that it was without jurisdiction to hear the matter because the dispute fell squarely to the Grievance Settlement Board. The Court took the opportunity to draw comfort from the fact that the effect, if any, of the “collateral” agreement relied upon by the grievor was an issue this Board could determine even, potentially, by considering common law doctrines such as detrimental reliance.
Very shortly after the decision of the Court issued, Mr. MacRae suggested that the grievor immediately file a grievance. Some seven months later that was done. Some three weeks after the decision of the Ontario Court (General Division) was issued, the grievor filed a Notice of Appeal of that decision in the Court of Appeal. That appeal was dismissed in October of 1999.
Although Mr. MacRae may have been called for that specific purpose, there is very little in his evidence, which inclines me to exercise my discretion to extend time limits in this case. Certainly there is nothing in that evidence to support even the inference that there was an implicit agreement or waiver on the part of the employer that it would not raise any timeliness issues in the present proceedings. For as Mr. MacRae candidly acknowledged (despite a suggestion to the contrary in his August 13, 1998 correspondence to the union Staff Representative), the issue of time limits for a grievance was never discussed with any employer representative. Indeed, he acknowledged that the issue of time limits (for a grievance) never even surfaced in any of his discussions with the grievor until after the judgement of the Court in May of 1998. Even then it appears that the issue of time limits was first raised by the union sometime after that date, when the grievor first approached it for assistance.
There is perhaps an equitable appeal to be made for the exercise of discretion to extend time limits in this case. It can be described fairly simply. The employer has maintained throughout that this is the proper forum to determine the grievor’s claim. Having prevailed in that view, it should not now be open to the employer to avoid a determination of the merits of that claim by resort to a “technical” objection such as timeliness.
A variation on that theme infuses the concerns expressed and, to some extent, acknowledged, by both levels of the courts. Indeed, it was concern about this different potential “inequity” which featured much more prominently in Mr. MacRae’s evidence. The grievor wishes to rely on a “collateral” agreement forged, or so it was wrongly thought, outside the reach of the collective agreement and the grievance procedure. It would be inequitable for the employer to prevail in its view that the matter belongs before this Board and to then argue that this Board has no jurisdiction to consider the terms and circumstances of that “collateral” agreement. That view was echoed by the endorsement of the Court of Appeal, which noted and endorsed the employer’s acknowledgement that “there is no basis for an arbitrator to refuse to hear evidence about the alleged representation/collateral agreement and to fashion a remedy accordingly if appropriate”.
But even accepting the legitimacy of that consideration, it does not amount to an unfettered license to, several years later, file the grievance, which ought to have been filed at the outset. The concerns about the impact of legal choice of forum is a separate matter from the general and specific requirements to file grievances in a timely fashion. Indeed, had such a grievance been filed, there is every likelihood that the parties might have been able to agree on the forum in which to first determine the jurisdictional issue perhaps even without prejudice to the right to subsequently proceed in the other forum if necessary.
Why that was not done in this case remains something of a mystery. And, perhaps more importantly, why no grievance was filed early on during the relevant sequence of events is equally mysterious. The grievor, who did not testify, has offered no direct explanation for that oversight or for his apparent utter failure to even raise or discuss the matter with his bargaining agent until sometime in or after May of 1998. That failure is all the more enigmatic when one considers the grievor’s previous familiarity with the grievance procedure, the employer’s indication from the very outset that it had acted pursuant to the terms of the collective agreement and (once the civil proceeding had been commenced) its subsequent immediate and continuing assertion that the matter ought to have been the subject of a grievance rather than a civil proceeding.
The applicable collective agreement contains the following provision:
27.2.1 An employee who believes he has a complaint or a difference shall first discuss the complaint or difference with his supervisor within twenty (20) days of first becoming aware of the complaint or difference.
I note as well that (while the employer disputes that this is a true dismissal grievance – the grievor having been identified as surplus) Article 27.8.2 provides:
Any employee…who is dismissed shall be entitled to file a grievance at the second stage of the grievance procedure provided that he does so within twenty (20) days of the dismissal.
The union suggested that since Article 27.2.1 includes a subjective element tied to the grievor’s knowledge, that the grievor may not have “been aware” of the complaint or difference until, at the earliest, the ruling of the Ontario Court (General Division). That suggestion can be quickly disposed of. While there is undoubtedly a subjective component to the language under consideration, it is of no assistance to the grievor in this case. A grievor who is legitimately unaware of the facts giving rise to an alleged violation of the collective agreement may well have twenty days from first becoming aware of those facts to invoke the grievance procedure. That is hardly the case here. As suggested in Twomey, 1956/97 (Brown), it is knowledge about the facts not knowledge of relevant legal theories, which triggers the collective agreement time limit. There is nothing before me to suggest that the grievor was not, from the outset, in possession of all of the relevant facts asserted to give rise to his claim of improper dismissal. Thus, it is clear that the grievance was out of time and that the only remaining issue pertains to the possible exercise of my discretion.
I am asked to exercise the discretion conferred upon me by section 48(16) of the Labour Relations Act, 1995 which permits me to extend the time if I am satisfied that “there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension”.
Numerous cases have considered the application of this provision including the often cited decisions in Becker Milk Company and Teamsters Union, Local 647 (1978), 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217 (Burkett) and Greater Niagara General Hospital and O.N.A. (1981), 1981 CanLII 4449 (ON LA), 1 L.A.C. (3d) 1 (Schiff).
The factors that those (and many subsequent) arbitrators have considered in determining whether or not to exercise their discretion have been identified by arbitrator Burkett as follows:
The reason for the delay given by the offending party.
The length of the delay.
The nature of the grievance
and by arbitrator Schiff:
The nature of the grievance.
Whether the delay occurred in initially launching the grievance or at some later stage.
Whether the grievor was responsible for the delay.
The reasons for the delay.
The length of the delay.
Whether the employer could reasonably have assumed the grievance had been abandoned.
There is no doubt that the grievance in this matter is one of significant consequence – the grievor claims he has been discharged and seeks reinstatement and compensation. I note again, however, that while it does purport to be a dismissal grievance, the employer asserts that the matter involved the application of the job security provisions of the collective agreement and was not a disciplinary matter. Thus while the consequences of the action challenged by the grievance are undoubtedly severe, this may not be a typical discharge case.
The delay being pointed to is the delay at the very outset of the grievance procedure i.e. the failure to even file a grievance.
The reason and responsibility for the delay are highly problematic in this case. On one level, one might conclude that there simply is no reason, let alone any good reason, for the delay. On the most charitable reading of the facts, the grievor may be seen to have followed bad advice. But even that conclusion is less than apparent. For Mr. MacRae made it clear that his view had been that the civil proceeding was the appropriate route to follow. He advised the grievor accordingly and the action was commenced. Events proved that advice to have been wrong. But even if there is some equitable basis to protect the grievor from his reliance on legal advice, which proved to be misguided, it is less than clear that provides a reason for the grievance not having been filed. Unlike the case of Wicken, 2216/97 (Knopf), (a case in which the Board declined to exercise its discretion to permit a grievance filed some 16½ months after the discharge), there was no suggestion in the instant case that Mr. Szabo had been specifically advised to not file a grievance. No explanation was provided as to why the commencement of the civil action precluded the grievor from filing a grievance (or even consulting with his bargaining agent in that regard). And finally, even if one might be tempted to somehow otherwise “forgive” the delay to the point that the court vindicated the employer’s position in May of 1998, there is simply no explanation before me whatsoever for the subsequent continuing delay in filing the grievance. Even after Mr. MacRae explicitly advised his client, in writing, to “forthwith (immediately)” file a grievance, it took some seven months for that to happen.
The length of the delay is enormous and militates very strongly against the exercise of any discretion. The Board in the Wicken case observed that no case with similar collective agreement language was cited which had permitted a grievance to proceed following a delay of 16½ months from the date of termination. The delay in the present case is more than double that in Wicken; no case was presented to me in which time limits were extended in the face of such a delay.
Finally, I consider the issue of prejudice and whether the employer could reasonably have assumed the grievance had been abandoned. The magnitude of the delay is so extreme in this case that, without more, I might be prepared to conclude that substantial prejudice would result to the employer if it were now required to defend the grievance. Indeed, it may well be that the onus of establishing no such prejudice falls to the party seeking to have the time limits extended. However, there are some reasons to conclude, in this case, that the resulting prejudice might not be as severe as a three year delay might otherwise suggest. For despite the utter inactivity insofar as the grievance procedure was concerned, it was abundantly clear to the employer that the grievor was challenging his termination. And while there may not have been a complete identity between the terrain that would have been covered in the grievance procedure and that which the grievor ill-advisedly sought to traverse in the civil proceeding, there can be little doubt that the principal facts relating to the termination are prominent and central in both. Thus, it is perhaps more difficult for this employer to assert that it could have assumed the grievance, or at least the grievor’s challenge to the propriety of his termination, had been abandoned.
On the other hand and while it may be a factor ultimately of a remedial nature, I cannot help but comment on the differences in the relief sought and available in the grievance as opposed to the civil proceeding. It is only with the filing of the grievance that a claim for reinstatement is made – years after the impugned termination. The claim in the civil proceeding was (not all surprisingly given the variance of available remedies) restricted to damages. Thus, the employer can legitimately assert that no claim whatsoever for reinstatement was made until the grievance was filed years after the fact. There may well be evidentiary matters relating to the issue of reinstatement which were not raised or sought to have been raised in the civil proceeding.
When I consider all of the factors canvassed, I am forced to conclude that this is not an appropriate case for the exercise of my discretion. The magnitude of the delay and the reasons proffered for it are such that, despite the importance of the grievance and the possible mixed nature of the resulting prejudice, I do not consider it appropriate to exercise my discretion to extend the time limits.
The grievance is untimely and is therefore dismissed.
Dated at Toronto this 19th day of February 2001.