GSB#2007-3132

UNION#2007-0704-0011

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Berday)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Reva Devins

Vice-Chair

FOR THE UNION

Sheila Riddell Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Jennifer Richards Counsel Ministry of Government Services

HEARING

September 17, 2008.

Decision

1The grievor, Jim Berday, was appointed to a fixed term Group 3 seasonal contract with the Ministry of Transport. His first contract began on October 17, 2005 and ended on April 14, 2006. He was hired for a second season commencing October 16, 2006 with an end date of April 13, 2007. The grievor was not recalled for the 2008 season and he grieves the Employer’s failure to do so. The Employer maintains that it advised the grievor that he would not be renewed for a further season before the conclusion of his second contract. The Union asserts that the grievor completed his second contract and was therefore entitled to become a permanent seasonal employee under the terms of the collective agreement.

2This grievance was filed on December 4, 2007. The employer has moved for dismissal of the grievance on the basis of timeliness.

Facts

3The parties have agreed to proceed on the basis of the following agreed statement of fact:

1. The Grievor was appointed to a fixed term Group 3 seasonal contract with the Ministry of Transportation effective October 17, 2005. The Grievor was appointed in the capacity of Seasonal Patrol Maintenance Technician in Geraldton within the Provincial Highways Management Division. The contract end date was April 14, 2006.

2. The Grievor completed his first season of employment with the Ministry on April 14, 2006.

3. Pursuant to Article 32.5.1.1 of the OPSEU Collective Agreement, Seasonal employees who have completed their probationary period shall be offered employment in the same position in the following season based on seniority. As per the worksite practice, the Maintenance Coordinator contacts his Seasonal Employees in August/September to recall them for the upcoming winter season. The Grievor had not completed his probationary period, but was contacted by management and offered another season of employment for the 2006/2007 winter as a Seasonal Maintenance Technician.

4. The Grievor started his second season with the Ministry on October 16, 2006.

5. The Grievor’s interim Business Performance and Learning Plan (“BPLP”) for the period of October 2006 to February 2007 indicated: “Performance to the end of this years [sic] winter maintenance will be closely monitored and all factors will be taken into account determining call back for next winter season.” This BPLP was signed by both the Grievor and his manager, Mr. Miles Kelly. See Appendix A.

6. The Grievor was involved in a motor vehicle accident and went off work on approved sick leave for whiplash effective March 25, 2007. He was on sick leave for the remainder of the 2006/2007 season. His probationary period was scheduled to end on April 13, 2007.

7. On April 4, 2007 the Grievor emailed Mr. Dean Thatcher saying his doctor had advised him to stay off work until the end of the season. He indicated he would be in Thunder Bay receiving medical treatment and not at his home in Geraldton. Mr. Kelly received this email chain via carbon copied on April 5, 2007. See Appendix D.

8. On April 10, 2007 the Grievor was in Geraldton. The Grievor emailed Mr. Thatcher, and copied Mr. Kelly, advising that since he was unable to return for the rest of the season, he was requesting his layoff or at the very least have the Ministry issue his Record of Employment. See Appendix D.

9. Mr. Kelly states that he telephoned the Grievor at home on Tuesday, April 10, 2007 and left a voicemail message asking him to call him to discuss his BPLP. See Appendix C. The Grievor denies he received any messages from Mr. Kelly on April 10, 2007.

10. Mr. Kelly states that he telephoned the Grievor at home on Wednesday, April 11, 2007 and left a voicemail message indicating that he wanted to discuss his BPLP and his status as a seasonal employee. See Appendix C. The Grievor denies he received any messages from Mr. Kelly on April 11, 2007.

11. Mr. Kelly states that he telephoned the Grievor at home on Thursday, April 12, 2007 and left a voicemail message indicating that his BPLP was complete. Mr. Kelly indicated that he could email the Grievor his BPLP or set up an appointment to discuss it. Mr. Kelly also states that he told the Grievor he would not be recalled next year. See Appendix C.

12. The Grievor states that Mr. Kelly telephoned him for the first time on April 12, 2007 and said “I am going to recommend that you not be recalled.” The Grievor did not receive this message until, at the earliest, a few days after April 12, 2007 because he was back in Thunder Bay receiving medical treatment as he had advised Mr. Thatcher and Mr. Kelly.

13. Mr. Kelly did not attempt to contact the Grievor through email, a method of communication the parties had used on April 4 and April 10, 2007.

14. On the WIN Employee Action Request Form (WEAR Form), Section 4 indicates that the Grievor will not be offered seasonal call back due to performance issues. The WEAR form was signed by Mr. Kelly on April 13, 2007. See Appendix E.

15. The Grievor contacted Mr. Len Mason, OPSEU Acting Local Services Sector Staff Representative on or around April 17, 2007, shortly after he received the April 12, 2007 message from Mr. Kelly.

16. A Record of Employment (ROE) was produced by Ontario Shared Services (“OSS”) for the Grievor with an issue date of April 19, 2007. As listed on the form, the reason for issuing the ROE was “End of seasonal contract. Released during probation.” A copy would have been mailed to the Grievor within one week of the ROE’s issuance date. See Appendix F.

17. Mr. Kelly states that he left a message on the Grievor’s home voicemail on April 24, 2007 as the Grievor never attempted to contact Mr. Kelly. Mr. Kelly asked for the Grievor to call the Thunder Bay office. See Appendix G. The Grievor denies receiving any further messages from Mr. Kelly after the one left on April 12, 2007.

18. Mr. Kelly completed the Grievor’s final BPLP for the period of October 2006 to April 2007 on April 12, 2007. On April 12, 2007, Mr. Kelly indicated: “At the end of the 2^nd season as a Maintenance technician I feel that Jim’s performance has not met the performance commitments of the position and that he not be considered for call back for next season.” See Appendix B. The Grievor did not sign the BPLP because he did not return to the workplace after his motor vehicle accident.

19. The BPLP was not delivered to the Grievor until on or around August 1, 2007.

20. On April 25, 2007, Mr. Mason left a voice message for Mr. Kelly. Mr. Kelly attempted to reach Mr. Mason numerous times but to no avail.

21. On May 2, 2007, Mr. Mason left a message on Mr. Kelly’s voicemail regarding the Grievor and indicated that he would try Mr. Kelly on his cell phone. There was no follow-up phone call from Mr. Mason. See Appendix H.

22. On June 27, 2007, Mr. Mason made notes in his diary regarding the Grievor’s employment status. Mr. Mason’s notes state:

• “No recall”

• “Apr. 12 – terminated – recall was supposed to be Apr. 15”

• “Operational concerns”

• “Send a letter asking for disclosure”

23. In a letter to Mr. Kelly dated July 3, 2007, Mr. Mason requested any formal documentation and/or correspondence concerning the Grievor’s non-renewal of contract. See Appendix I.

24. On or around July 20, 2007, Mr. Mason telephoned Mr. Kelly and spoke to him requesting something in writing about the Grievor’s employment status.

25. The Employer sent the Grievor his BPLP, which covered the period of October 2006 to April 2007 via registered mail on July 24, 2007. In the covering letter, Mr. Kelly stated that: “Performance issues are identified in the document and direction not to be called back in for the 2007 winter season.” See Appendix J.

26. The BPLP was signed for at the Geraldton post office on or around August 1, 2007. See Appendix K. The Grievor has no memory of picking up the package, but agrees he did.

27. The Grievor states he has no memory of seeing the BPLP or of sharing it with Mr. Mason. At this time, in August 2007, the Grievor was still receiving medical care in Thunder Bay, approximately 300 kilometres from Geraldton and was spending three or four nights per week in Thunder Bay, rather than at his home.

28. The Employer did not send a copy of the BPLP or covering letter to Mr. Mason, instead it was sent directly to the Grievor.

29. The Employer posted a job advertisement for two Seasonal Patrol Maintenance Technicians in Geraldton, the same position formerly held by the Grievor, on Friday, August 10, 2007 (in MyOPS Careers Online). See Appendix L.

30. The job advertisement was also placed in the Thunder Bay Chronicles Journal newspaper on Saturday, August 11, 2007, in the Dryden Observer newspaper on Wednesday, August 15, 2007 and in both the Kenora Daily Miner and Geraldton Times Star newspapers on Thursday, August 16, 2007.

31. The posting period closed on Friday, August 31, 2007 and interviews were subsequently held on Monday, September 17, 2007.

32. The 2007/2008 winter maintenance season commenced on October 10, 2007.

33. On November 16, 2007, Mr. Mason asked Mr. Kelly to provide a copy of the Grievor’s final BPLP as the Grievor lost the first copy. Mr. Kelly sent the BPLP to Mr. Mason. It was received at OPSEU Thunder Bay on December 4, 2007.

34. The Grievor filed the grievance that is before you today on December 4, 2007. See Appendix M.

35. The Grievor has not been employed since April 2007. No information has been exchanged between the parties as to whether the Grievor has searched for employment.

36. Mr. Mason was not employed by OPSEU in May and most of June 2007. He returned to the Thunder Bay office on or around June 27, 2007. Mr. Mason did not notify Mr. Kelly that he was leaving nor did he provide him with an alternate contact at OPSEU.

Submissions

4The Employer submits that the grievor failed to file his grievance in a timely manner and it therefore seeks dismissal of the grievance. In the Employer’s submissions, the agreed statement of facts supports a conclusion that the grievor was aware of the facts giving rise to his grievance by April 17, 2007. The Employer took a number of steps to ensure that the grievor would be aware that he would not be recalled the following season. In the Employer’s view, it is simply implausible to accept that the grievor was unaware that his rights were affected given the numerous voice mail messages it left for him, the statement on his Record of Employment that he was “released during probation” and his conduct in seeking the assistance of his Union. Moreover, after he contacted his Union, the Union recorded the following: “No recall”, “Apr 12 – terminated – recall was supposed to be Apr. 15” and “Operational concerns”. The totality of the evidence suggests that the grievor was aware of the facts giving rise to his grievance many months before he filed his grievance and it is therefore untimely.

5At a minimum, it was submitted that the grievor should have filed his grievance after he received his Business Performance and Learning Plan, (BPLP). In his BPLP, the Employer clearly indicates that he was released for performance concerns; he admits that he received this document on August 1, 2007. The grievor’s failure to file his grievance in a timely manner is all the more incomprehensible in light of the posting of his position in August and the commencement of the season in October. It was therefore submitted that the grievance procedure should have been initiated by May 17, 2007, or August 31, 2007 at the latest. By waiting until December 4, 2007 he did not comply with the mandatory timelines and is significantly out of time.

6The Union maintains that the grievance is not untimely. In its submission, the clock did not start until the Union received a copy of the grievor’s BPLP on December 4, 2007. It filed the grievance immediately thereafter. Counsel argued that the grievor and the Union were aware that there was a potential problem but that it could not be sure that there was a legitimate grievance until it received written confirmation of the reason that the grievor was not going to be recalled. The voice mail messages that were left in April were inadequate in light of the gravity of the decision that management had made. The evidence referenced by the Employer is too inconclusive to support a contrary conclusion. The grievor’s Record of Employment did not clearly indicate that the grievor’s release was performance based and the Union’s notes are unclear, with no indication of the reason why management did not intend to recall the grievor. In light of the lack of clarity, the Union acted prudently and made several attempts to obtain written clarification from the Employer. They also endeavoured to follow good labour relations practises in trying to resolve the matter informally before filing a formal grievance.

7The Union submits that the grievor was unaware that his performance was the reason for his proposed non-renewal until he received written confirmation from the Employer in August. Only the grievor received notice at that time and he does not recall receiving the correspondence. It was further noted that the Union is unaware why the grievor did not contact the Union but it noted that he was undergoing medical treatment at that time which required frequent travel from his home. In any event, it was submitted that there was no evidence of bad faith on the part of the grievor. The Union had pursued management over several months in an effort to clarify the grievor’s employment status and management chose not to respond to the Union but only to the grievor. In these circumstances, the Union maintains that the grievance is timely.

8If it is determined that the grievance was not filed in a timely manner, the Union submits that I should exercise my discretion under s.48.16 of the Labour Relations Act to relieve against the time limits set out in the Collective Agreement. The Union stressed that the grievance at issue is analogous to a termination grievance and should accordingly not be dismissed on a technical basis. Counsel argued that in similar cases arbitrators have been loath to dismiss a grievance as untimely unless there is a clear case of unexcused, unreasonable delay and evidence of prejudice to the employer. In this case, there is no evidence of prejudice or of bad faith. The Union’s repeated inquiries should have made it clear to the Employer from the outset that failure to recall the grievor was in issue. With respect to the other factors to be considered, the Union maintained that the delay was not significant, the initial reason for the delay was the Employer’s failure to provide written reasons for its decision and the Union at all times acted diligently in pursuing this matter. In the alternative, the Union submitted that this would be an appropriate case to reserve my decision on timeliness until the conclusion of the hearing on the merits.

9The Union relied on the following cases in asserting that the gravity of the outcome for this grievor warrants a tempered assessment of any delay and that the nature of the grievance is the key factor to be considered in the exercise of my discretion: Re Becker Milk Co. Ltd. And Teamsters Union, Local 647, [1978] O.L.A.A. No. 71 (Burkett); OPSEU (Jankovics) v. Ministry of the Solicitor General (1993), GSB No. 1102/91 (Kaplan); International Language Schools of Canada v. OSSTF, Dist. 34 (Prepos), [2005] O.L.A.A. No. 390 (Gray); OPSEU (Martin) v. Ministry of Correctional Services (1995), GSB No. 2260/92 (Kaufman).

10In reply, the Employer submitted that the language of the Collective Agreement is clear: in accordance with Article 22.2.1, the clock starts to run when the “circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee”. It was submitted that the Union has carriage rights after the grievance is filed, however, the initial onus to bring the matter to the attention of management rests with the employee. There is therefore no basis for the Union’s submission that the matter was pursued in a timely manner. The Employer also urged me to reject the Union’s suggestion that the delay was attributable to management’s failure to provide the final BPLP. Counsel observed that the Union notes in June clearly indicated that there were ‘operational concerns’ and the grievor’s interim BPLP had identified management’s concern with the grievor’s performance. It was submitted that the Union’s notation only makes sense if it was aware of the general reason for the Employer’s decision not to recall the grievor. In any event, it was submitted that the grievor was obliged to file his grievance even if he did not know the precise reason why he was not being recalled. It was submitted that at the very latest, the grievance should have been filed after the grievor received a copy of his BPLP in August.

11The Employer further submitted that there were no reasonable grounds for me to exercise my discretion to relieve against the strict application of the time limits imposed under the Collective Agreement. The Employer accepted that the relevant factors to be considered in exercising my discretion are those set out in Becker Milk. The Employer further conceded that the nature of the grievance does engage the grievor’s ongoing employment relationship with the Ministry. Nonetheless, counsel argued that this case was distinguishable from a typical discharge grievance in that the right to recall is not akin to dismissal of a permanent, full time employee. Recall rights are inherently speculative without any guarantee regarding how and when an individual might be recalled. Counsel further suggested that consideration of all of the relevant factors support dismissal of the grievance. In the Employer’s submission the delay was substantial and there was no valid excuse to account for the delay. Furthermore, the Employer was prejudiced by the delay when the grievance was not filed until long after the commencement of the season for which the grievor claims he had recall rights. Between August 1, 2007, the latest date that the grievor would be aware of his rights and December 4, 2007, when the grievance was filed, the Employer posted, interviewed and awarded seasonal contracts. The grievor had participated in this process for the two preceding years and still did not file his grievance until after the commencement of the 2008 season.

12The Employer referred to the following cases in support of its position: OPSEU (Hughes) v. Ministry of Labour (1993), GSB No. 172/92 (Barrett); OPSEU (Smith) v. Ministry of Northern Development and Mines (2005), GSB No. 2002-0243 (Mikus); OPSEU (Arkelian) v. Ministry of Health (1995) GSB No. P/0044/92 (Willes); OLBEU (Wicken) v. Liquor Control Board of Ontario (1998), GSB No. 2216/97 (Knopf); OPSEU (Gangasingh) v. Metropolitan Toronto Housing Authority (1995), GSB No. 1386/94 (Mikus): Re Exolon-ESK Co. of Canada Ltd. And Communications, Energy and Paperworkers’ Union, Loc. 36-0 (1993), 1993 CanLII 16807 (ON LA), 37 L.A.C. (4^th) 430 (Haefling); OPSEU (St. Jean et al.) v. Ministry of Community Safety and Correctional Services (2004), GSB No. 2001-1122 (Leighton).

13In a further reply, the Union submitted that the cases relied upon by the Employer can be distinguished on the basis of the nature of the grievance, the length of delay and the lack of surprise to the Employer given the ongoing communication with the Union regarding this matter. Finally, it was submitted that there are guaranteed rights to recall under the collective agreement and that there was no meaningful distinctions between seasonal and regular employees.

Collective Agreement

14The relevant provisions of the Collective Agreement are as follows:

ARTICLE 22 – GRIEVANCE PROCEDURE

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.

STAGE ONE

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 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.

22.2.2 If any complaint or difference is not satisfactorily settled by the supervisor within seven (7) days of the discussion and/or meeting, it may be processed within an additional ten (10) days in the following manner.

STAGE TWO

22.3.1 If the complaint or difference is not resolved under Stage One, the employee may file a grievance, in writing, through the Union, with the senior human resources representative in the ministry or his or her designee.

Decision

15The first issue for determination is whether the grievance is untimely. It was the Union’s submission that the grievance was filed as soon as the Union was aware of the full facts giving rise to the grievance and was therefore filed within the time limits set out in the Collective Agreement. I do not accept either of the Union’s basic suppositions. First, the language in Article 22.2.1 is clear, it requires that steps be taken when the facts giving rise to the grievance “come to the attention of the employee”. In my view, to convert this in the manner suggested by the Union is contrary to the express language and invites further delay. Effective labour relations should encourage employees to raise their concerns as soon as practicable and seek the assistance of their Union at the earliest opportunity. To accede to the Union’s request may well produce the opposite result. It would arguably reward employees who sit on their concerns. Grievors would perceive that they were penalised for the timely involvement of their Union whereas employees who muddle through on their own would be permitted a more elastic timeframe within which to file their grievance. This does nothing to facilitate expeditious resolution of workplace disputes.

16The Union also suggested that there was no need to file the grievance while they were trying to informally resolve the matter and until the Employer provided a clear, written statement of the reason for their decision. I accept and encourage their efforts to informally resolve this matter. There needs, however, to be a consistent deadline so that neither party gains a benefit from delay. Filing a grievance will often focus attention in a manner that informal discussions may not. The chronology in this case demonstrates this point. Despite the Union’s efforts, written confirmation, in the form of the BPLP, was not provided for a number of months. In the end, several months passed from the time that the Union was first contacted until the grievance was filed. In the intervening months, contracts for the upcoming season were awarded to other individuals and the opportunity to quickly resolve the matter was lost.

17Having regard to all of the facts of this case, I am satisfied that the grievance was not filed in a timely manner. There are some obvious gaps in the chronology of events set out in the Agreed Statement of Facts. The parties have agreed, however, that the grievor was off work effective March 25, 2007 as a result of a car accident and did not return to work that season. The grievor’s manager claims that he left voice mail messages at the grievor’s home on April 10, 2007 asking him to call to discuss his BPLP, on April 11 indicating he wanted to discuss his BPLP and his status as a seasonal employee, and finally on April 12 advising him that his BPLP was complete and that he would not be recalled next year. The grievor stated that his manager did not contact him until April 12 and that he merely said that he was going to recommend that the grievor not be recalled the following season. Mr. Berday contacted his Union on April 17, 2007, shortly after he received his manager’s message. A Record of Employment, (‘ROE’), was produced for the grievor and issued on April 19, 2007; the stated reason for issuing the ROE was “End of seasonal contract. Release during probation.” The grievor’s interim BPLP, signed by the grievor and his manager, covered the period from October 2006 to February 2007, indicated “Performance to the end of this yeas [sic] winter maintenance will be closely monitored and all factors will be taken into account determining call back for next winter season.”

18Based on these facts, I find that by mid April 2007 the grievor had sufficient information regarding the decision not to recall him such that he should have grieved at that point. He had already been put on notice that his performance would be monitored to determine whether he would be recalled the following season. He admits that he received a call from his manager advising of his recommendation that the grievor not be recalled. He subsequently received a copy of his ROE in which it was stated that he was released during probation. These facts alone provide a sufficient basis to conclude that the circumstances giving rise to his complaint had come to his attention. In my view, that knowledge is confirmed by his behaviour once he received his manager’s message: he contacted the Union to seek assistance with respect to his employment status. Appreciation for the nature of the dispute was further exemplified in the Union’s notes as follows: “No recall. Apr. 12 –terminated- recall was supposed to be Apr. 15. Operational concerns. Sent a letter asking for disclosure”. Although counsel for the Union suggested that these notes were too cryptic to convey a clear picture of what was understood at the time, I actually consider them to be quite revealing. The Union Staff representative recorded his understanding, presumably based on facts provided by the grievor, that the grievor was terminated April 12^th, that he was not recalled and that there were operational concerns.

19I am sympathetic to the Union’s argument that management should have advised the grievor of their decision in writing much sooner than it did. Given the gravity of their decision, the Employer should have immediately completed and delivered the grievor’s BPLP to him once it made its decision. Nonetheless, the information that the grievor did have was adequate, in my view, to alert him to the need to take further action. It is preferable but ultimately in this case unnecessary for there to be absolute clarity regarding the precise reason for the employer’s decision. In light of the voice mail message he says he received, the interim BPLP, the ROE and his effort to engage the Union I am simply not persuaded that the grievor failed to understand the reason why he was not going to be recalled.

20At the very least, the grievance should have been filed after the grievor received his BPLP in August 2007. At that point there can be no doubt that he would be aware of the circumstances giving rise to his dispute. The Union’s submission that there is no evidence of bad faith is immaterial to the question of whether the matter is timely. I do consider it relevant to whether the grievor should be relieved of the strict application of the timelines, but it does not alter when or whether the “circumstances giving rise to the complaint … have come to the attention of the employee”. The BPLP made it clear that the grievor was not going to be recalled the following season and it set out management’s concerns with his performance. Having received formal, written notice of the Employer’s decision, the grievor was obliged to act in a timely manner if he intended to challenge that decision.

21I must now consider whether this is an appropriate case in which to exercise my discretion under s. 48(16) of the Labour Relations Act¹ to relieve against the strict application of the time limits set out in the collective agreement. Section 48(16) provides as follows:

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.

22The parties agree, and it is well settled in the arbitral jurisprudence, that the factors relevant to my consideration are those set out by Arbitrator Burkett in Re Becker Milk, supra:

(i) the reason for the delay given by the offending party;

(ii) the length of the delay; and

(iii) the nature of the grievance.

Arbitrator Burkett further makes it clear that the arbitrator must weigh a number of factors, including those cited above and whether there has been any prejudice as a result of the delay.

23It is not surprising that the Union and Employer weighed the factors in this case very differently. The Union emphasised the nature of the grievance as being akin to dismissal whereas the Employer stressed the length of the delay and reason, or lack thereof, for the delay. In the Union’s submission, this is in sum and substance a discharge grievance. Consequently, I was referred to the decisions of other arbitrators who were hesitant to dismiss termination cases without a hearing on the merits. As summarised by Arbitrator Gray in International Language Schools of Canada and OSSTF, Dist. 34, “Arbitrators do generally relieve against poorly explained delays of a matter of a few, even several, months in discharge cases, when the employer would suffer no specific prejudice.” ² The inclination to relieve against mandatory timelines in discharge cases is not, however, absolute. The Employer cited a number of cases in which the length of the delay, the reason for the delay and the fairness to the employer and other affected employees lead to the conclusion that the requested relief should not be granted despite the nature of the right at issue³.

24The nature of the grievance leads me to proceed with great caution. Although I do not consider it appropriate to characterise this matter as wholly analogous to a discharge case, if placed on a continuum that reflects the importance of this issue to the grievor, it is clearly very close to the ‘termination’ end of the spectrum. The issue on the merits is one that engages the grievor’s ongoing employment relationship, as was conceded by the Employer. I consider it comparable, if not identical to cases involving discharge. The grievor’s status as a seasonal employee, which at best gives rise to recall rights, does differentiate it somewhat from a termination grievance. This is not to suggest that seasonal employees are not afforded significant and meaningful rights under the collective agreement. Rather, it is in recognition of the lack of certainty that is inherent in their right to ongoing employment. I also consider it relevant that the ultimate issue on the merits is whether the grievor had successfully completed his probationary period. Nonetheless, the nature of the grievance is significant and I accept that it therefore deserves very careful consideration.

25The importance of the right at issue, however, is only one factor to be considered. It is also the only one that militates in favour of the grievor. Consideration of virtually every other factor persuades me that this is not an appropriate case in which to exercise my discretion to relieve against the timelines set out in the Collective Agreement. The delay in this case was significant, at least 4 months, and in my view more likely 7.5 months after the grievor was aware of the facts giving rise to this dispute. The delay was at the very initial stage of proceedings. While the Employer might originally have been aware that there might be a grievance, after the Union requested the BPLP and remained silent for a number of months after it was sent, management might well assume that the matter had been abandoned. During this subsequent period of delay, the Employer posted and filled the seasonal contracts that the grievor says should have been awarded to him. Finally, and of most concern, there is virtually no explanation whatsoever for the grievor’s failure to file a grievance between August 1 and December 4.

26I have determined that the grievor was aware of the facts giving rise to this grievance in mid April. He contacted his Union on April 17 and his Union began to make inquiries on his behalf; no grievance was filed. The Union has suggested that it was pursuing informal resolution of the matter and that the true fault for the delay rests with management when it failed to provide written confirmation of its decision. I agree with the Union that the Employer was remiss in failing to provide the grievor with a written copy of his BPLP. This does not account, however, for the grievor’s failure to act, at all, after he did receive the appropriate notice.

27The Union stated that it was unaware of the reason for the grievor’s inaction after he received his BPLP, but observed that he was still undergoing medical treatment which necessitated frequent travel to Thunder Bay. Furthermore, it suggested that there was no evidence that the grievor acted in bad faith. The difficulty with both of these submissions is that they highlight what is missing: an explanation from the grievor for the delay. If this was a brief delay or there was evidence that the grievor’s medical treatment had an impact on his ability to initiate the grievance process, these submissions would be more persuasive. The grievor admits receiving the BPLP but says that he has no memory of picking it up or seeing it. He has offered no other explanation for his failure to follow up with the Employer or his Union. Although it is true that there is no evidence of bad faith, it can equally be said that there is no evidence of good faith. The grievor had started work with the Ministry in the two preceding seasons. He was aware that he was not being recalled and he received his BPLP at a time when he ought to have known that contracts were being advertised for the upcoming season. Even if he does not recall receiving his BPLP, there is no evidence that either he or the Union took any further steps until after the new season had commenced.

28The timely resolution of grievances serves a number of valuable labour relations objectives. Included among them is the desire to ensure that aggrieved individuals are restored to their entitlements as quickly as possible and to permit management to conduct its business in an orderly manner. Knowing what grievances are outstanding and then having the opportunity to resolve them with a minimum of spill over in the workplace is central to this premise. I am deeply troubled by the absence of any meaningful explanation for the lapse in time between August 1 and December 4 when the grievance was filed. I am particularly disturbed by the coincidence of the delay with the period in which the disputed contract was being advertised, filled and commenced. Ultimately these factors persuade me that this is not an appropriate case to exercise my discretion despite the relatively serious nature of the grievance. This is far from an easy case, however, on balance, I am not satisfied that there are reasonable grounds to extend the mandatory timelines contained in the collective agreement. Nor do I consider it appropriate to reserve my decision until the hearing on the merits.

29I would allow the Employer’s motion and dismiss the grievance.

Footnotes

1. 1S.O. 1995, c. 1, Sched. A.
2. 2Supra, at para. 33.
3. 3OPSEU (Smith) v. Min. Northern Development and Mines, supra; OLBEU (Wicken) v. LCBO, supra; OPSEU (Arkelian) and Min. of Health.