GSB#2003-1881

UNION#2003-0999-0026

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (O’Brien)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Deborah J.D. Leighton

Vice-Chair

FOR THE UNION

David Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

George Parris Ministry of Government Services Labour Practice Group Counsel

HEARING

November 3, 2010.

Decision

1This decision addresses a preliminary motion argued on November 3, 2010 to dismiss two grievances of Cheryl O’ Brien, dated April 27, 2009, alleging, inter alia, a breach of Board orders made as a result of an earlier grievance ( GSB 1948/93), and violations of human rights, health and safety and collective agreement provisions. The parties agreed that I issue a ‘bottom line’ decision as soon as possible so that the hearing could continue as scheduled on November 24 and 25, 2010.

2The employer argued that the grievance was not referred to the Board in a timely fashion and that given the delay, the grievance should be dismissed. The union argued that the parties made an agreement to hold the grievances in abeyance before Stage 2 occurred, pending settlement. When settlement proved to be impossible, the union then requested whether the employer wanted to proceed with a Stage 2 and was advised that employer counsel was seeking instructions. There was never an answer to this question, but the parties proceeded to case manage these grievances and the earlier 2003 grievances. The employer agreed with this description of events, but took the position that the union should have referred the grievances without delay.

3Having carefully considered the submissions of the parties I have decided that this motion must be denied. Given the agreement of the parties to hold the grievances in abeyance, which was never formally ended, and given the delay occurred during the grievance procedure, where I have the discretion to extend time limits, I have decided that it would be a denial of natural justice to dismiss these grievances. The grievances are of a serious subject and there was no evidence that the employer is prejudiced by the delay. Indeed the employer had no reason to think that the union was not forwarding the grievances, since the parties began to case manage the 2003 and 2009 grievances in April of this year. One further reason for my decision here is that the parties must be able to rely on the agreements that they make in good faith, in order to pursue settlement negotiations or case management. To hold otherwise would be damaging to labour relations between the parties.

4Thus, for the reasons noted above the employer’s motion to dismiss these grievances is denied.