GSB#2009-0681

UNION#2009-0528-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Ng)

Union

• and -

The Crown in Right of Ontario (Ministry of Government Services)

Employer

BEFORE

Loretta Mikus

Vice-Chair

FOR THE UNION

Ryan White Cavalluzzo Hayes Shilton McIntyre & Cornish LLP Counsel

FOR THE EMPLOYER

Cathy Phan Ministry of Government Services Counsel

HEARING

April 20, 2010.

Decision

1There are three grievances before me dealing with various disciplinary suspensions the grievor had been given and culminating in her termination. At the hearing a preliminary issue arose between the parties concerning the grievance dated May 5, 2009. The Employer’s contention is that the Union was attempting to expand the grounds of the original grievance. The parties agreed to provide me with written submissions on this issue following the hearing.

2There was also a preliminary issue between the parties concerning the grievance dated December 16, 2009 that challenges the suspension of June 16, August 7 and October 9, 2009. It was the Employer’s submission that this grievance should be dismissed because it was filed more than 5 months after the first suspension, more than 3 months after the second suspension and more than one month after the third suspension.

3The grievor testified on her behalf. She has been employed as an Application Analyst for approximately 10 years. She has filed grievances in the past and had heard that there were time limits in the collective agreement for filing grievances but had been told they would be waived if they had not been met. She also testified that she had been under stress related to her mother’s passing and that she had seen her doctor about that stress. She did not provide any medical documentation about her state at the time. When asked if the stress had affected her ability to file the grievance, she replied “it could have”.

4Her clear evidence was that the primary reason she did not file a grievance over these suspension was that she did not believe they were disciplinary. She believed they were part of what she considered to be the ongoing harassment she had been subjected to for some time. It was not until she spoke to the Union representatives and was advised that these suspensions were discipline that she realized she needed to a file grievance.

5Ms. Phan, counsel for the Employer took the position that this grievance should be dismissed. The grievor has given no reasonable excuse for the delay. She claims that she was under a great deal of stress because of the passing of her mother, but she did not offer any medical proof that the stress was so severe it affected her judgment. She also stated that the stress “might have” been the reason she did not file the grievance earlier but did not rely on that as her primary reason. She testified that she did not think the suspensions were disciplinary. That is simply not possible. Each of the letters outlined the reasons for the suspensions. They stated clearly that she had been insubordinate and was being suspended for her failure to correct her behaviour. The grievor testified that she did not read the letters and therefore did not know about the disciplines. That is not a reasonable excuse for not filing the grievance and should not be accepted by this Board.

6In support of its position the Employer relied on the following cases: Re OPSEU (Berday) and Ministry of Transportation (2008), GSB # 2007-3132 (Devins); Re OPSEU (Smith et al) and Ministry of Community and Social Services (2008), GSB # 2006-2107, 2006-2379 (Gray) and OPSEU (St. Jean et al) and Ministry of Community and Correctional Services) (2004), GSB # 2001-1122 (Leighton).

7Mr. Ryan White, counsel for the Union, took the position that this is an appropriate case for the Board to exercise its discretion to extend the time limits under the grievance procedure. The grievor was under considerable stress at the time. She had recently suffered her mother’s death and, at the time believed, she was being harassed for having taken time off during that ordeal. She was inexperienced about filing grievances and did not delay filing them out of bad faith.

8The nature of the grievances should also persuade the Board to extend the time limits. Although they are not termination grievances per se, the significance of an 8, 15 and 20 day suspension is obvious, especially since the grievor’s employment was terminated in February of 2010. Finally, it was said, the Employer will suffer no prejudice if the Board should allow the extension. It cannot be said that the events have gone stale, that the witnesses’ memories have been compromised or that documents have been lost. All of these events leading to her termination will become part of the Employer’s case on the termination and allowing this grievance will not affect its burden of proof.

9In support of its position the Union relied on the following cases: Re Ontario Liquor Board Employees Union and L.C.B.O, GSB # 1318/96 (January 9, 1997); Re OPSEU (Stone) and Ontario Clean Water Agency, (March 19, 2001) GSB# 1111/99 (Janice Johnston and Re Ferrand-Packard Ltd. and U.S.W.A., Local5788 (1993), 36 L.A.C. (4^th) 456 (Haefling).

10Both partiers relied on Re Becker Milk Company and Teamsters Union, Local 647 (1978), 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217 (Burkett). In that case, the grievor had been terminated on September 20, 1977 and filed a grievance dated October 17, 1977. That grievance was not received by the company until November 24, 1977. In that case, as in the instant case, the parties were agreed that the Labour Relations Act allowed an arbitrator to exercise his/her discretion to relieve against the time limits under a collective agreement if that arbitrator is satisfied that there are reasonable grounds for allowing the extension and that the other side would not be substantially prejudiced by the extension. That case established the standard against which virtually all arbitrators have weighed the factors to be considered in deciding whether to relieve against the strict time limits in the collective agreement. At page 220 Arbitrator Burkett stated as follows:

The exercise of the equitable discretion vested in an arbitrator under s. 37(5) a of the Act requires 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 as 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. 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 short duration an arbitrator would be permitted to rely on the short period of delay as constituting reasonable grounds for an extension. If the grievance involves the termination of an employee as distinct from some lesser form of discipline, this is also an equitable consideration which must be taken into account in deciding if there are reasonable grounds to extend the time-limits.

REASONS FOR DECISION

11As stated previously, it has been universally accepted that the test set out in the Becker case (supra) is the appropriate starting point for an arbitrator in considering whether to exercise her discretion to extend the time limits under the grievance procedure in a collective agreement. The factors to be considered are the reasons for the delay, the length of the delay and the nature of the grievance.

12In the instant case, the collective requires an aggrieved individual to file a grievance “within thirty (30) days after the circumstances giving rise to the complaint have occurred or have come to or ought reasonably to have come to the attention of the employee”. The grievance at issue is dated December 16, 2009 and includes suspensions of June 15, (8 days), August 6, (15 days) and October 8, (20 days). Although it was suggested that the grievor had been under considerable stress at the time, she did not press this claim and stated that the reason she did not file the grievance was because she did not consider the suspension to be disciplinary. She did not read the letters, she claimed. I find this explanation difficult to accept. The grievor had already been given suspensions of one, three and five days prior to the ones at issue in this grievance. She claims she did not read the letters but she knew when she was to stay off work and when she was to return to work. Since the letters state clearly she had failed to attend meetings to discuss these matters, one wonders how she knew the contents of the letters without reading them. In any event, it was simply unreasonable for her to ignore the letters given her past suspensions. It is also not reasonable to accept her assertion that she failed to appreciate the disciplinary nature of these suspensions. The letters are clear. She was being told that they were the result of what the Employer considered to be her insubordinate behaviour. She was told in no uncertain terms that this behaviour must cease or would result in “more severe discipline”. I reject her assertion that she did not know these suspensions were disciplinary in nature.

13Additionally, she testified that she had filed grievances in the past and that she was aware that there were time limits in the collective agreement.

14In the circumstances I find that the responsibility for failing to file this grievance in a timely fashion lies solely with the grievor and that her explanation for the delay was not reasonable.

15However, as stated in the Becker award, if the grievor has been negligent or otherwise to blame for the delay, an arbitrator must, nevertheless, consider the other two factors in deciding reasonable grounds for an extension of the time limits. The length of the delay in the instant case is significant. The first suspension began on June 16^th, some 6 months after the grievance was filed. The second suspension began on August 6^th, some 4 months before the grievance. Even the last suspension, which began on October 8, 2009 preceded the grievance by 2 months. The length of the delays does not assist the grievor’s request for an extension.

16Finally, I turn to the nature of the grievance. As in the OPSEU (Berday) grievance (supra), I proceed with caution. Although this grievance does not relate to a termination, on the spectrum of progressive discipline, it is very close to that result. The significance of these disciplinary suspensions on the grievor’s ultimate termination cannot be understated. Nevertheless, it is the only factor that militates in favour of the grievor. I have already determined that the delay was unreasonable and lengthy. Ultimately these factors persuade me that this is not an appropriate case to exercise my discretion to extend the time limits.

DECISION

17For those reasons, the grievance is dismissed.