Ontario Public Service Employees Union (Wickham et al) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2012 CanLII 67532

GSB#2010-2268

UNION#2010-0369-0209

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Wickham et al)

Union

• and -

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

Employer

BEFORE

Brian M. Keller

Vice-Chair

FOR THE UNION

Scott Andrews and Laura Josephson Ontario Public Service Employees Union Grievance Officers

FOR THE EMPLOYER

Bart Nowak Ministry of Government Services Centre for Employee Relations Employee Relations Advisor

SUBMISSIONS

June 11 and October 11, 2012.

Decision

1The grievors filed a local group grievance alleging that the Employer improperly deducted eight hours’ pay from each fixed-term employee for each statutory holiday. The Employer based its decision on its interpretation of article 31A.5.1. The Employer took the position that the grievances were untimely. This decision deals only with the preliminary objection. It does not deal with the merits of the grievance.

2It is common ground between the parties that the issue giving rise to the grievance arose in 2007. It is on that basis that it makes its preliminary objection. It is further common ground between the parties that the grievors and their manager were attempting, informally and internally, to resolve the concerns of the grievors. The grievors indicated that it was because of these attempts that they did not file a grievance. However, once it was clear that the attempts were not going to bear fruit, they filed the local group grievance.

3The grievance is clearly out of date. The only question to be determined is whether I should exercise my discretion pursuant to section 48 (16) of the Ontario Labour Act to extend the time limits in this case. The Employer acknowledges I have the jurisdiction to do so but submits that I should not because of the long period between which the issue arose and the filing of the grievance. It further submits it would be prejudiced because a review of the matter, at this stage, would require significant resources and effort. Further, five of the eleven grievors were converted to the regular service prior to management’s receipt of the grievance and, accordingly, their grievance was moot at the time of the filing of the grievance.

4The parties are at idem as to the tests used by arbitrators in cases such as this and, therefore, there is no need to canvass them. It is my determination that the time limit should be extended. While I acknowledge that the length of time was significant, that, in my view, is outweighed by the fact that the parties, through this period, were attempting to resolve the issue. If the time limit is not extended the result would be a disincentive to the parties to attempt to resolve matters before a formal grievance is filed. The labour relations implications of that outweigh the potential prejudice that might result from the length of the delay. In any event, the issue of delay raised by the Employer is easily dealt with as any remedy must be limited to 30 days prior to the filing of the grievance and therefore, the resources of the Employer will not be overly taxed.

5The preliminary objection is dismissed. At the joint request of the parties, the matter is remitted back to them so that they can attempt to resolve the issue. If the parties are unable to do so, either party may refer the matter back to me, within 90 days, of this decision for a determination on the merits.