GSB#2007-2368, 2007-2369, 2009-2075

UNION#2007-0229-0019, 2007-0229-0020, 2009-0229-0009

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Ireland et al)

Union

• and -

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

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Omar Shahab Ministry of Government Services Labour Practice Group Counsel

HEARING

January 19, 2011.

Decision

1A number of grievances were filed by Ms. Daphne Ireland, Mr. Jeffrey Johnston and Mr. Robert Bujeya, alleging various violations of the Collective Agreement. At a mediation session held on December 15, 2010, the Union asked the Employer for agreement to consolidate an additional grievance from each of the grievors. The Employer agreed subject to any preliminary objections it might make regarding the three additional grievances. This decision deals only with the Employer’s preliminary objection regarding the Board’s jurisdiction to hear and determine these three additional grievances.

2Two of the grievances were filed on July 1, 2009 and the third was filed a day later. By all accounts there was no Stage Two meeting held to discuss these grievances nor any correspondence between the parties in this regard. On November 2, 2009 the Registrar of the Grievance Settlement Board was advised that the matters were being referred to arbitration. The Union sent a copy of this notice to the Manager of Employee Relations Advisory Services for the Ministry.

3There was no evidence provided by the parties that these matters were ever discussed in any forum, including the Joint File Review, prior to being put forward by the Union at the December 15, 2010 mediation session.

4There was no dispute that the grievances were referred to arbitration beyond the time limits provided in the Collective Agreement. For this reason, it was the Employer’s contention that the Board lacks the jurisdiction to deal with the July 2009 grievances. The Union asserted that because the Employer did not raise this objection until January 5, 2011, it had waived its right to do so.

5While the Union initially thought that it would argue alternative arguments regarding the Employer’s right to raise this objection, it was ultimately agreed that the Board would first hear the submissions regarding waiver and issue a decision. Depending on the result of this determination, the Union may elect to present alternative arguments.

6The relevant provisions of the Collective Agreement begin at Article 22.3.1 and state the following:

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.

22.3.2 The senior human resource representative or his or her designee shall hold a meeting with the employee within fifteen (15) days of the receipt of the grievance and shall give the grievor his or her decision in writing within seven (7) days of the meeting with a copy to the Union steward.

22.4 If the grievor is not satisfied with the decision of the senior human resources representative or his or her designee or if he or she does not receive the decision within the specified time, the grievor may apply, through the Union, to the Grievance Settlement Board (GSB) for a hearing of the grievance within fifteen (15) days of the date he or she received the decision or within fifteen (15) days of the specified time limit for receiving the decision.

7Section 48.16 of the Ontario Labour Relations Act provides:

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 an 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.

EMPLOYER SUBMISSIONS

8The Employer submitted that, contrary to the Union’s view, it has not waived its right to raise an objection regarding the jurisdiction of this Board to hear and determine these grievances. The doctrine of waiver does not apply in these circumstances because the matter at hand is one of substantive jurisdiction and a party cannot be said to waive its right to raise a substantive jurisdictional objection. The jurisprudence establishes that only procedural requirements can be waived.

9The Employer argued in the alternative that, if this Board does decide that waiver applies to jurisdictional matters, in this instance, it did not waive its right to raise a preliminary objection. Within a very short period of time after the Union asked the Employer to consolidate these grievances with matters already properly before the Board, notice was given the intention to raise an objection.

10Mr. Shahab, for the Employer noted that in Re The Crown in Right of Ontario (Ministry of Attorney General) & OPSEU (Johnston) (January 8, 2010) GSB#2009-1147 (Dissanayake), the Board determined that referral to arbitration is not part of the grievance procedure and accordingly, there is no arbitral jurisdiction to extend the time limits found in the Collective Agreement.

11The Employer suggested that a review of the facts in this matter reveals that there was no Stage Two meeting between the