GSB# 2002-0243, 2002-0244, 2002-1243

UNION# 2002-0154-0015, 2002-0154-0013, 2002-0154-0014

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Smith)

Union

• and -

The Crown in Right of Ontario (Ministry of Northern Development and Mines)

Employer

BEFORE

Loretta Mikus

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Suneel Bahal Counsel Management Board Secretariat

HEARING

November 25, 2004.

Decision

There are three grievances before me: one alleging discrimination and harassment, one alleging a denial of access to job competition MNOM-117 and the last alleging denial of access to fifteen job competitions dating from 2001 to the present. The parties were able to reach an agreement on several of the individual competitions contained in this grievance but eight of them remain outstanding. It is those job competitions referred to in the grievance that is the subject of this award. The Employer took the position that these grievances should be dismissed because they were filed well outside of the time limits in the collective agreement and there are no grounds upon which this Board should be persuaded to exercise its discretion to extend those time limits.

The job competitions at issue are as follows:

#12/01 – Northern Development Officer – MNR – Posted March 30/01 – interviews July/01 – grievance dated March 12/02

63/01, #64/01, #65/01, #66/01, #67/01 – Northern Development Advisor – MNR – Posted May 11/01 – interviews June 25-27/01 – grievance dated March 12/02

#73/01 –Northern Development Advisor – Tourism – Posted June 1/01 – interviews July 26-27/01 - grievance dated March 12/02

#94/01 – Northern Development Advisor – Transportation – posted August 10/01 – interviews November 16/01 – grievance dated March 12/02

Ms. Lynn Martin has been employed in the OPS for 20 years and is currently a Human Resource Assistant. Her major role is in the field of recruitment and includes the coordination of all job competitions. She prepares the job specifications, obtains approval from MBS, arranges for the posting, receives and reviews all applications. She forwards the applications and resumes to the area manager for screening and, when advised of the successful candidate(s), prepares the letter(s) offering the job for their signature(s). She then closes the file.

She has been acquainted with the grievor for some time and during the 2001-2002 time period recalled receiving about a dozen calls from him about the job competitions at issue. The calls were usually to verify receipt of his application, and averaged two per posting. Sometimes he called to ask if the position had been filled. If the offer letters had been sent, she would tell him it had been filled. Otherwise, she would refer him to the manager involved. Whenever he called she would do her best to answer his questions.

When she received an application her practice at the time was to send out an acknowledging letter advising the applicant that if he/she had not been contacted by a certain date, usually 8 weeks in the future, he/she had not been selected for an interview. She was very confident that the grievor had been sent similar letters for all of these competitions.

The grievor has been with the OPS since 1980, initially with the Ministry of the Environment and, in 1985, in the Sudbury office of the Ministry of Northern Development and Mines as an Economist 4. In 1993 he was surplussed and went to the Ministry of the Environment in the Environmental Assessment Office. He remained with the MOE until he was surplussed in 1999 and worked out his notice until March of 2000. He had been with the government for over 23 years and he was within 5 years of retirement. He wanted to continue working and immediately after he was completed his notice period he was rehired on a series of short contracts with the MOE that lasted until mid-September of 2001. He was unemployed from then until October when he was offered and accepted two successive contracts with the MOE in Sault Ste Marie that lasted until March of 2002. He had, during this time, kept in touch with the Ministry of Northern Development and Mines. He had loved his work there and was always desirous of returning. He applied for every job in the Ministry that he felt he was capable of performing. At the same time he was also applying for positions at the Ministry of the Environment and the Ministry of Transportation. In all he applied for between 30 and 40 jobs in the period from 2000 to 2001. He was granted interviews for several of the MOE positions but was not as successful with the MNDM applications. He confirmed Ms. Martin’s evidence that he made several follow-up calls to her about his applications and testified that at some point he advised her he would have to file a grievance over his lack of success in obtaining an interview.

He had been a Union activist during his years of employment and had been a Union Steward for numerous years. He was aware that the collective agreement required grievances be filed within thirty days of the event giving rise to the grievance. He had filed grievances in the past. He decided however not to file a grievance initially because he had hopes that an area manager would help him secure a position. He was also receiving interviews for several of the MOE positions and decided to concentrate his efforts on those job applications. When he did not succeed on any of those applications he reviewed the applications for the MNDM positions, realized he had not been granted any interviews for the numerous applications he had submitted and filed the instant grievance.

SUBMISSIONS OF THE PARTIES

Mr. Bahal, counsel for the Ministry, took the position that the grievor knew there was a thirty day time limit to file any grievance concerning these job competitions. He had both the subjective and objective knowledge of the closing dates and disposition of these job competitions through the initial letter acknowledging receipt of his application and advising him that if he had not been contacted by a certain date, he was not going to be interviewed. Additionally, he had conversations with Ms. Martin in which he was told that the job had been offered to someone else. And yet he waited from 8½ to 4 months to challenge them. The grievor has offered no reason for the delay, it was submitted.

In support of its position it relied on the following cases: Wilson and Metropolitan Toronto Housing Authority (1995), GSB # 1386/94 (Mikus); Gambie and Liquor Control Board of Ontario (1998), GSB # 1635/96 (Gray); St. Jean et al and Ministry of Community Safety and Correctional Services (2004), GSB # 201-1122 (Leighton)Szabo and Ontario Realty Corporation (2001), GSB # 1811/98 (Herlich) and Aleong and Liquor Control Board of Ontario (1997), GSB # 1318/96 (Gray).

Mr. Leeb, counsel for the Union, took the position that the Board should exercise its discretion and extend the time limits under the collective agreement, or, in the alternative, assess each grievance on its own merits. Some of the competitions referred to in the grievance involve lesser delays than others. Additionally, the Employer has not shown any prejudice by the delay and, in the absence of any proof of prejudice, the Board should allow the grievances to proceed. The Employer had not suggested that it couldn’t proceed. It has not claimed to have lost or destroyed files or that it cannot produce witnesses to support its position

It was submitted that the grievor was not kept informed of the progress of these job competitions and he was unable to know the status of his application without numerous inquiries. He displayed tremendous interest in these competitions by the number of applications he submitted and by the numerous phone calls to Ms. Martin. The Employer knew that he was intent on obtaining a position and it cannot be said it was unaware of his continuing interest. It made no effort to assist him.

It was submitted that the nature of the grievance requires that it proceed. The future employment of the grievor affects his pension rights and is of significant importance to the grievor.

In support of its position, the Union relied on the following cases: Re Becker Milk Company Ltd. And Teamsters Union, Local 647 (1978), 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217 (Burkett); Kai and Ministry of the Solicitor General and Correctional Services (997), GSB # 3289/92 (Abramsky); Jankovics and Ministry of the Attorney General (1993), GSB # 1102/91 (Kaplan); Hughes and Ministry of Labour (1993) GSB (Barrett) and Wilson and Ministry of the Attorney General (1994), GSB # 279/93 (Roberts).

REASONS FOR DECISION

The relevant provisions of the collective agreement read as follows:

Article 22 – Grievance Procedure

22.2.1 It is the 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 meet, where practical, and 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.

22.14.1 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.

There is no dispute that the time limits in the collective agreement are mandatory and that the only jurisdiction to relieve against those time limits is found in the Ontario Labour Relations Act (LRA) which states as follows:

48 (16) Except where a collective agreement states that 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 that extension and that the opposite party will not be substantially prejudiced by the extension.

That provision was considered by the Board in the Becker Milk case (supra) and the test it adopted has been universally accepted by arbitrators and arbitration boards, including GSB vice-chairs and boards of arbitration, as the appropriate test to be considered in exercise of an arbitrator’s decision to exercise her discretion to extend the time limits under a collective agreement. That test is found at page 220 of the decision and reads as follows:

…The exercise of the equitable discretion vested in an arbitrator under s. 37(5a) [now 48(16)] of the Act requires a consideration of at least three factors. They 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. …the purpose of the section is to alleviate against technical bars. If the offending party has been negligent in its processing of the grievance but the delay has been of a short duration an arbitrator should be permitted to rely on the short period of delay as constituting reasonable grounds for an extension. If the grievance involves a termination of an employee, as distinct from some lesser form of discipline, that is also an equitable consideration which must be taken into account in deciding if there are reasonable grounds to extend the time-limits. …The term “reasonable grounds for the extension” as found in s. 37(5a) of the Act is not synonymous with the reasonableness of the excuse advanced b y the offending party. Having regard to the purpose of the section the term carries a broader significance which requires the arbitrator to weigh a number of factors, including but not necessarily restricted to those which have been set out above.

Applying that test to the instant case, I find that the grievor was not diligent in pursing his claims under this collective agreement. He has, by his own admission, been an active Union member for a number of years and has filed grievances in the past. He was fully aware of the time limits in the collective agreement but made a conscious decision to wait and see whether his efforts at the MOE would bear fruit before he challenging the MNDM job competitions. I understand that he was commuting from his job to his home at the time and felt under considerable pressure such that he felt he had to concentrate on one effort at a time, but he did so at his peril.

Having found that he was not diligent in filing his grievance, I turn to the consideration of the second and third factors identified in the Becker Milk case. First, the length of delay is substantial with respect to all of the job competitions. The first job posting occurred some 8 ½ months before the grievance, the last almost 4 months after the position was filled. All of them fall well outside the time limits prescribed in the collective agreement, and, in these circumstances must be characterized as significant. That takes me to the final factor to be considered, the nature of the grievance. This is not a termination of employment but I accept the grievor’s assertion that it has a critical impact on his retirement. Nevertheless, it is the nature of the grievance that persuades me not to exercise my discretion to extend the time limits. The successful candidates have been in the disputed positions for many months. I was not told whether any of these job offers involved moves to other cities but given that the locations of the positions were cited as being Sudbury, Thunder Bay, Kenora, Timmins, Sault Ste. Marie and Huntsville, I think it is safe to assume that some of them required relocation. Even if they did not, the successful applicants have been in the new positions long enough that they are entitled to feel secure. For the grievor to claim their positions after so many months is unfair. If he felt he had a claim to their positions, he should have made that claim clear within the time limits prescribed under the collective agreement which would have put the incumbents on notice that they were at some risk that the grievor might succeed. .

While the Employer did not claim it could not proceed with the grievance because of the passage of time, unavailability of witnesses or loss or destruction of documents, there are subtle and less obvious consequences that, in my view, have resulted in prejudice to the Employer. I note that it would be in the position of reconstructing 2001 and 2002 in order to respond to the grievance. That would apply not just to one office but to all of the offices referred to above. If the grievance were to succeed, staff relocations would have to be made that would be disruptive not only to the office involved but, as mentioned previously, to the incumbent of the challenged position. That might have been avoided if the grievor had filed the grievances sooner. Even when the opposite party cannot or does not demonstrate substantial prejudice, delay that is due to a lack of diligence on the part of the grievor can be significant enough to persuade an arbitrator to decline to exercise her discretion to relieve against the strict time limits. This is such a case.

DECISION

For the reasons mentioned above, I find that the decision to delay the filing of this grievance was the result of a deliberate decision of the grievor to await the outcome of other job applications and therefore was not diligently pursued in accordance with the time limits under the collective agreement. I am not persuaded that it is appropriate for me to exercise my discretion and extend the time limits in the circumstances. The grievances, insofar as they challenge the job posting referred to above are dismissed. The Union has preserved its right to rely on these grievances in the grievance alleging harassment and discrimination.

Dated at Toronto this 17th day of March 2005.