GSB # 1111/99
OPSEU # 99EO65
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Stone)
Grievor
-and-
The Crown in Right of Ontario
(Ontario Clean Water Agency)
Employer
BEFORE Janice Johnston Vice-Chair
FOR THE Don Martin Grievance Officer
GRIEVOR Grievance Officer
Ontario Public Service Employees Union
FOR THE EMPLOYER Len Hatzis – Counsel
Legal Services Branch
Management Board Secretariat
HEARING February 23, 2001 and March 5, 2001
DECISION
This decision deals with a preliminary motion made by counsel for the employer to dismiss the grievance before me on the basis that it is not timely. No issues were raised by either party with regard to my jurisdiction to hear and determine the matters before me.
The grievor, Mr. David Stone, was employed by the Ontario Clean Water Agency (“OCWA” or the “employer”) from April, 1990 until he was surplused in 1999. He filed a grievance on June 18,1999, claiming that: “No alternative arrangements were made to accommodate my interview for the T.O. 2 position due to illness at time of scheduled interviews. I also believe the competition to be unnecessary.”
The parties provided me with the following agreed statement of facts:
This motion deals strictly with the issue of the timeliness of the grievance filed by Mr. Stone on June 18, 1999, and does not go to the merits of the case.
The grievor at the time of filing the grievance was a member of OPSEU and an employee of OCWA.
A competition for a Thermal Operator 2 position was posted on February 1, 1999. The competition closed on February 12, 1999. This is the competition relevant to the grievance in this case.
Between February 1, 1999, and February 12, 1999, the grievor applied to be a candidate for the position.
The interviews for the Thermal Operator 2 position were conducted on March 1, 1999, by the employer.
The grievor failed to attend these interviews for the reasons that go the merits of the matter.
The grievor was aware on March 1, 1999, that the employer would not make alternative arrangements for the grievor’s interview for reasons that go to the merits of the matter.
Upon receipt of his pre-surplus notice shortly before June 18, 1999, the grievor called OPSEU and was advised to grieve the matter of the accommodation for the interview which is part of the subject matter of the grievance. On June 18, the grievor submitted the grievance at issue.
I also heard brief evidence from the grievor. His evidence establishes that he was aware of the posting for Thermal Operator 2 and that he applied for the position between February 1 and February 12, 1999. On the date of the interviews, March 1,1999, he was off ill. He returned to work approximately two weeks later and worked until he was laid off.
When the grievor received notice that he was to be surplused, he contacted the union. Prior to that, he had not had any discussions with any members of management or union officials with regard to whether or not the job should have been posted, or on the issue of accommodation.
The grievor did not file a grievance sooner in this case, as he did not feel that there was anything that he could do. He did not speak to his local representative or anyone else at the union’s office in the period between when he was told his interview would not be rescheduled and he received his surplus notice. After doing some research and speaking to the union he found out that he could grieve. He filed the grievance at issue in this case immediately after speaking to the union.
Although the grievor knew he could not be successful in the Thermal Operator 2 competition, as he was not interviewed for the job, he did not know that he would be laid off until he received his surplus notice.
During his employment with OCWA, the grievor signed his name to several group grievances. He has not ever read the grievance procedure provisions in the collective agreement and he does not know how grievances are processed. He is aware that grievances are filed by the union to deal with issues between management and the union. Prior to filing the grievance before me, he had never filed an individual grievance.
The parties were in dispute concerning which collective agreement applied in this case. The two possibilities are the “red” collective agreement, which was in force from January 1, 1994, to December 31, 1998, or the “teal” or “black” collective agreement which runs from January 1, 1999, to December 31, 2001. The union argued that the red collective agreement was the applicable one and the employer took the position that it did not matter which agreement applied, as the differences between the relevant language in the two collective agreements did not affect the issues to be determined in this case.
After reviewing the two collective agreements and paying particular attention to the differences between them, I am of the view that for the purposes of deciding the motion before me it makes no difference which collective agreement language is utilized. Because of the conclusions I have come to in this case, the changes in wording are not relevant to and do not affect the decision which I have made. However, to ensure that there is no confusion, I will utilize the language in the red collective agreement as it is in my view, the applicable one.
Article 80.1 of the black collective agreement provides:
This Agreement covers the period from January 1, 1999, until December 31, 2001. The effective date of any changes to the term of this Central Collective Agreement from the previous Central Collective Agreement, unless otherwise indicated, shall be March 27, 1999. This Central Collective Agreement shall continue automatically thereafter for annual periods of one (1) year each unless either party serves notice on the other in writing that it wishes to bargain for a new Central Collective Agreement in accordance with the Labour Relations Act, 1995, and the Crown Employees Collective Bargaining Act, 1993.
The parties agreed that the reference to “term” in the second sentence was a typographical error and the word should in fact be “terms”. Therefore, any changes to the red agreement only come into effect on March 27, 1999. As the events we are concerned with took place in February and in March, but prior to March 27th, the language to be considered is that found in the red collective agreement. The relevant articles read as follows:
22.1 It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable.
22.2.1 It is the mutual desire of the parties that complaints of employees be adjusted as quickly as possible and it is understood that if an employee has a complaint, the employee shall discuss it with the employee’s immediate supervisor within thirty (30) days after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee in order to give the immediate supervisor an opportunity of adjusting the complaint.
22.2.2 If any complaint or difference is not satisfactorily settled by the supervisor within seven (7) days of the discussion, it may be processed within an additional ten (10) days in the following manner:
STAGE ONE
22.3.1 The employee may file a grievance in writing with his of her supervisor. The supervisor shall give the grievor his or her decision in writing within seven (7) days of the submission of the grievance.
22.14.1 Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn.
22.14.6 The GSB shall have no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreement.
Counsel for the employer argued that the grievance was untimely. He pointed out that we are dealing with a two-part grievance. The first part of the grievance raises the issue of accommodation for the interview and the second issue raised is the necessity for the competition. In employer counsel’s view, the “circumstances giving rise to the complaint” in this case either came to the attention of the grievor or ought to have come to his attention, with regard to the issue of accommodation, on March 1, 1999, when he was informed that alternative arrangements would not be made and with regard to the issue of the competition, no later than February 12, 1999, when the competition closed.
Therefore, counsel suggested in accordance with article 22.2.1 of the collective agreement, the grievor had until March 12,1999, to file a grievance with regard to the competition issue and until April 1, 1999, to file a grievance on the accommodation issue. As the grievor did not file the grievance until June 18, 1999, he was late by approximately three months on the competition issue and two and one half months on the accommodation issue. At no time has the employer agreed to extend the time limits for the initiation of the grievance in this case. Accordingly, counsel for the employer took the position that both aspects of the grievance should be dismissed on the basis of timeliness.
Counsel for the union argued that the grievance was not untimely. It was his position that the “circumstance giving rise to the complaint” was the receipt by the grievor in June, 1999, of notice that he was to be laid off. It was only at this point that he
realized the significance of the job competition and that he needed to file a grievance. Counsel suggested that there was no requirement that the circumstances giving rise to the grievance must be identical to the circumstances that are the subject of the grievance.
While I give credit to union counsel for an innovative argument, I am of the view that the circumstances giving rise to the grievance in this case are the posting of the job competition and the knowledge of the grievor that his request for another interview date would not be accommodated by the employer. These circumstances occurred in February and March, 1999, and there is no dispute that the grievor was aware of them. Therefore, the thirty-day period for the raising of the complaint with his supervisor that the job competition was unnecessary commenced on February 12, 1999, at the latest, and the thirty-day period for the initiation of the complaint that his request for an alternative interview date should have been accommodated, started running on
March 1, 1999.
As a complaint was not initiated nor a grievance filed within the time frames articulated in the collective agreement, the grievance which the union seeks to arbitrate is untimely.
The parties also disagreed on the manner in which the time limits in the collective agreement should be characterized. The union argued that the time limits in the collective agreement were directory in nature and the employer submitted that the time limits in the applicable collective agreement were mandatory.
The union argued that the time limits were directory as there was no penalty in the collective agreement for a failure to meet the time limits for the filing of a complaint. I disagree with this assertion. I do not accept the union’s interpretation of articles 22.2.1, 22.2.2 and 22.3.1 and the subsequent analysis that the consequences in article 22.14.1 are triggered only by a failure to file a grievance as opposed to a complaint. In light of article 22.14.1, which provides that a grievance not processed within the time allowed shall be deemed to be withdrawn. I am satisfied that the time limits in the collective agreement are not directory in nature in the sense that counsel for the union used the term.
The parties were in agreement that I have the discretion under section 48 (16) of the Labour Relations Act, 1995 (the “Act”) to extend the time limits in the collective agreement. The parties have not agreed to language in the collective agreement specifically exempting the jurisdiction of an arbitrator to extend the time limits in the collective agreement, as they are permitted to do by section 48 (16). Therefore, the time limits in the collective agreement are not “mandatory” in the sense that the jurisdiction of an arbitrator to extend them has been eliminated upon the agreement of the parties.
However, having said that, clearly the collective agreement language is “mandatory” in the sense that it is strong collective agreement language which sets out specific time frames to be complied with and imposes a penalty for a failure to comply with the applicable time limits set out in the grievance procedure. The intention of the parties in drafting this language is a factor I will consider in determining whether it is appropriate to exercise my discretion pursuant to section 48 (16) of the Act.
The parties agree that I have the jurisdiction to extend the time limits in this case pursuant to section 48 (16) of the Act, but disagree on whether or not I should do so. They also agree that the two key cases outlining the factors to be taken into by an arbitrator in deciding whether or not to exercise the discretion to extend the time limits
are Becker Milk Company and Teamsters Union, Local 647 (1978), 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217 (Burkett) (the “Becker Milk case”) and Greater Niagara General Hospital and O.N.A. (1981), 1981 CanLII 4449 (ON LA), 1 L.A.C. (3d) 1 (Schiff) (the “Niagara Hospital case”)
Arbitrator Burkett identified the following factors to be considered:
The reason for the delay given by the offending party.
The length of the delay.
The nature of the grievance.
This list was repeated and expanded upon by Arbitrator Schiff as follows:
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.
As have many arbitrators before me, including other Vice-chairpersons at the Grievance Settlement Board, I accept that the factors articulated above as the ones relevant to the determination I must make.
Counsel for the employer argued that it was not appropriate for me to exercise the discretion found in section 48 (16) and to extend the time limits in this case. He argued that I should only extend the time limits if I was satisfied that there were reasonable grounds for the extension and that the employer would not be prejudiced by any extension of the time.
In reviewing the factors to be considered, employer counsel pointed out that the nature of the grievance at issue was a job competition, not a discharge grievance. When dealing with discharge grievances, the importance of the grievance due to the finality of the loss of employment, is a factor given serious consideration by arbitrators.
In the case before me, even had the grievor been interviewed for the job, there is no guarantee he would have gotten it. Therefore, in counsel’s submission, I should not
exercise my discretion based on the nature of the grievance.
Counsel for the employer pointed out that the delay in this case occurred in initially launching the grievance. This could prejudice the employer in preparing its case and militates against the extension of the time limits.
Employer counsel stressed that in this case the grievor was solely responsible for the delay and has no one else to blame for it. The only reason he advanced for the delay was the fact that he didn’t feel that he could do anything. He did not speak to a union representative about filing a grievance notwithstanding the fact that he was aware of the collective agreement, was aware that the union representatives were there to assist him vis-à-vis his employer and was aware of the grievance process in that he had previously signed group grievances. Counsel suggested that the grievor was obligated to exercise “due diligence” in pursuing his rights under the collective agreement and that he had not done so. In counsel’s view, this created a “fatal flaw” in the union’s case.
It was conceded by counsel for the employer that the delay in this case was not as lengthy as is often the case when an extension of time limits is sought. However, he pointed out that there was a delay of two and one half months on the accommodation issue and a delay of three months on the issue questioning the necessity for the competition.
In the context of his submissions on the issue regarding whether or not the time limits in the collective agreement were mandatory or directory, employer counsel stressed that in assessing whether or not I should exercise my discretion under section 48 (16) of the Act to extend them, I should pay particular attention to the collective
agreement language on the issue of time limits. The mandatory time frames in the collective agreement before me should be carefully reviewed as they form part of the collective agreement from which I derive my jurisdiction. As the time limits are mandatory, this language should be viewed as strong language, which requires the parties to move quickly, thereby evidencing little tolerance on the part of the parties for delay.
Employer counsel suggested that on the facts before me there are no reasonable grounds for extending the time limits in this case. Because of the lack of due diligence on the part of the grievor, the nature of the grievance and the failure to meet the time limits in the collective agreement, it is not appropriate to grant an extension to the time limits. As the first ground in section 48 (16) has not been met, employer counsel took the position that there is no need to look at the question of prejudice to the employer and my enquiry should end at this point.
Counsel for the union took the position that I should exercise my discretion under section 48 (16) of the Act and extend the time limits in this case. In his view, there were reasonable grounds for the extension and as the employer was not claiming any prejudice, this fact favours granting an extension. As the employer was not alleging any prejudice, the union asked that I specifically find as a fact that the employer would not be substantially prejudiced by an extension of the time limits.
Union counsel disagreed with the assertion by the employer that should I conclude that the grievor failed to exercise due diligence in pursuing his rights under the collective agreement, that this automatically created a “fatal flaw” in the union’s case. Counsel emphasized that assessing the reasons for the delay provided by the grievor is not the same as assessing whether or not reasonable grounds exist for extending the time limits. The grievor’s reasons for delaying in the filing of his grievance and whether or not he met a test of “due diligence” are simply two things that I must consider in
determining whether to extend the time limits. Even if I conclude that the grievor did not have any valid reason for the late filing of his grievance and did not exercise due diligence in pursuing his rights, both of which were denied, that does not mean that I cannot nevertheless conclude that reasonable grounds exist for extending the time limits.
In this case, counsel for the union suggested that I should remember that the grievor was not a union official but a “rank and file” employee. Although he had in the past signed a group grievance that had been prepared for him, he was not familiar with the grievance procedure in the collective agreement and had never examined it. He was not aware of the specific time limits in the collective agreement and failed to file a timely grievance out of ignorance. He was not negligent in the sense that he knew what he had to do but didn’t do it. In this case, until he spoke to a union representative, he was not aware that there was anything that he could do, so he did not file a grievance.
In cases of this nature, union counsel pointed out, the delay in the filing of a grievance is often very lengthy. In comparison, the delay of two to three months, which we are assessing, in this case is a short one.
The final factor to consider, in union counsel’s view, is the nature of or importance of the grievance. Counsel stressed that although we are not dealing with a discharge case, it is like a dismissal in that we are dealing with a situation in which the grievor’s job was posted, he couldn’t compete for it and was therefore left without a job. In assessing the seriousness of the situation, counsel urged me to look at the impact the events being grieved had on the life of the grievor. The grievor in this case has lost his employment and is still unemployed. He has also lost considerable sums of money.
Therefore, counsel for the union asked me to consider the shortness of the delay, the inexperience of the grievor, the importance of the grievance and the lack of prejudice to the employer and conclude that it is appropriate to grant an extension to the time limits.
As I noted earlier, the parties agree that I have the discretion to extend the time limits pursuant to section 48 (16) of the Act and that the factors to be assessed in determining if it is appropriate to extend the time limits are set out in the Becker Milk case and the Niagara Hospital case.
Section 48 (16) of the Act provides:
Except where a collective agreement states this subsection does not apply, an arbitrator or arbitration board may extend the time for the taking 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. R.S.O. 1990, c. L.2, s. 45(6).
The first factor in Arbitrator Schiff’s list is the nature of the grievance. The manner in which the grievance is characterized in this case is a key factor in my ultimate determination.
Counsel for the employer asserted that it was just a job competition and was not therefore as serious as a discharge. While clearly the grievance deals with a job competition, this is not a “typical” job competition grievance. The facts in this case establish that we are not dealing with a situation where, seeking to move within the organization, an employee applies for a job, is not successful, but nevertheless remains employed. In this case, the events which the grievor seeks to challenge surrounding the posting for the Thermal Operator 2 position could arguably have led to or may have led in part to his ultimate layoff.
Although the grievance before me deals with a job competition, it is nevertheless in the same category of “seriousness” as a discharge case as it represents the attempt
by the grievor to challenge the events and the decisions made by the employer which
may have culminated in his loss of employment. When one is analysing the nature of a
particular grievance, the label applied to the grievance is not as important as an assessment of the circumstances that the grievor seeks to question and the consequences that flow from those circumstances.
In this case, the grievor was not interviewed for the position he was currently occupying. Shortly thereafter, he was laid off and is no longer employed by OCWA. I do not have sufficient facts before me to know the degree of correlation, if any, between the two events, but clearly we are dealing with a serious situation and not merely a simple job competition grievance.
The grievor was completely responsible for the delay in filing the grievance. He could have and should have filed his grievance earlier. However, he is not a union official and prior to filing the grievance before me, had never filed an individual grievance but had merely participated in the filing of several group grievances. He had never read the grievance procedure provisions in the collective agreement and was not aware of the time limits in the collective agreement.
In this case, there is no evidence of bad faith or negligence. There is no suggestion that the grievor was aware of the time limits and ignored them. I am satisfied that his failure to file a timely grievance was based on ignorance. Although this does not excuse his failure to immediately pursue his rights under the collective agreement, it is at least an explanation for his inaction. He could have and should have spoken to a union representative immediately after the events which he seeks to grieve occurred.
However, I agree with union counsel that in assessing whether or not reasonable
grounds exist for extending the time limits pursuant to section 48 (16), the grievor’s reasons for delay and whether he met a test of due diligence is simply one factor to
consider.
As was pointed out in the Becker Milk case:
“The exercise of the equitable discretion vested in an arbitrator under s. 37(5a) of the Act requires a consideration of at least three factors. These are: (i) the reason for the delay given by the offending party; (ii) the length of the delay; (iii) the nature of the grievance. If the offending party satisfies
an arbitrator, notwithstanding the delay, that it acted with due diligence, then if there has been no prejudice, the arbitrator should exercise his discretion in favour of extending the time limits. If, however, the offending party has been negligent or is otherwise to blame for the delay, either in whole or in part, the arbitrator must nevertheless consider the second and third factors referred to above in deciding if reasonable grounds exist for an extension of the time limits. In so far Re Pamour Porcupine Mines Ltd. (Schumacher Division) and U.S.W. (1976), 1976 CanLII 2174 (ON LA), 12 L.A.C. (2d) 122 (Dunn) stands for the proposition that the only factor to be considered is the “reasonableness of the excuse” for the delay, I respectfully disagree.”
As I concluded earlier in this decision, the collective agreement language dealing with time limits in the grievance procedure sets out specific time frames, which the parties have agreed to. In accordance with article 22.14.1, a failure to meet the time limits will result in the grievance being deemed to have been withdrawn. Article 22.1 provides that it is the intent of the parties to address any complaints or differences between them as quickly as possible. The intentions of the parties in agreeing to this language is clear. There are serious consequences for a failure to meet the time limits.
I agree with the sentiments expressed in OLBEU (Aleong) and LCBO, 1318/96 (March 10, 1997, Gray), that a delay would be difficult to countenance if it reflected bad faith or a deliberate or reckless disregard for negotiated time limits, particularly if the delay was caused by a person acting on behalf of the union that had agreed to the time limits in the collective agreement.
That is not the situation before me. Had I been satisfied that the grievor was
aware of the time limits for the filing of a grievance set out in the collective agreement and simply failed to act, I may have viewed the matter differently.
The employer has not asserted that it would suffer any prejudice in this case, let alone substantial prejudice, were I to extend the time limits. Given the relatively short period of delay in this case, it is not surprising that the employer is not asserting that it would be prejudiced. Therefore, I am satisfied that were I to extend the time limits in this case, the employer would not be substantially prejudiced.
The delay in this case occurred in the initial launching of the grievance. This issue is linked to the issue of prejudice in that if the employer does not know that something which has occurred is being grieved, it cannot begin to prepare its response to the allegations while the events are still fresh in everyone’s minds. In this case, the employer has not suggested that the initial late filing of the grievance has in any way prejudiced its ability to prepare its case.
The delay in this case is between two and one half and three months. In the circumstances of this case, this is not a significant delay.
Therefore, after considering all of the factors suggested in the Becker Milk case and Niagara Hospital case in light of the facts before me, and after carefully considering the submissions of the parties, I am of the view that there are reasonable grounds for the extension of the time limits in this case and that to do so would not substantially prejudice the employer.
Because of the serious nature of the grievance, the lack of prejudice to the employer and the relatively short period of delay, I am satisfied that it is appropriate to exercise my discretion pursuant to section 48 (16) of the Act in favour of the grievor and
to grant an extension to the time for the filing of the grievance before me.
Should the grievor be successful on the merits, the delay in the filing of the grievance will be taken into account in assessing any compensation to which he may be
entitled.
Dated in Toronto, this 19th day of March, 2001