GSB#2012-1187

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Labourers' International Union of North America - Local 506 (Roode)

Union

• and -

The Crown in Right of Ontario (Metro Toronto Convention Centre Corporation)

Employer

BEFORE

Brian Sheehan

Vice-Chair

FOR THE UNION

Glen Chochla Labourers' International Union of North America, Local 506 Counsel

FOR THE EMPLOYER

Clifford Hart Miller Thomson LLP Barristers and Solicitors

HEARING

September 27, November 15 & 19, December 18, 2012 and February 26, 2013.

Decision

1The grievance that is the subject matter of this Award concerns a claim that the Employer violated the collective agreement by removing Cory Roode (the “grievor”) from the position of Painter 2.

2At the commencement of the hearing, the Employer made a preliminary motion seeking the dismissal of the grievance on the grounds it was not filed in a timely manner.

The Background Facts

3The following chronology of undisputed facts sets out the background for the timeliness issue:

1. September 26, 2011- the grievor, who was employed as a casual employee in the Docks area since December 2008, posted into a permanent position of Painter 2 in the Engineering Department.

2. November 23, 2011- the grievor was removed from the Painter 2 position and moved back to his casual position in the Docks area, as the Employer was of the view that, pursuant to Article 15.04 of the collective agreement, he failed to demonstrate during the course of the 60 shift trial period, that he was suitable for the position.

3. On December 15, 2011- the grievor contacted Mr. Michael Bettencourt, Business Representative for LIUNA, Local 506 and advised Mr. Bettencourt that he had been removed from the Painter 2 position. The grievor claimed that he was not provided a fair opportunity to successfully complete the trial period.

4. On December 16, 2011- Mr. Bettencourt contacted Ms. Esther Lee, Vice President, Human Resources & Administration for the Employer regarding the removal of the grievor from the Painter 2 position. Mr. Bettencourt advised Ms. Lee of the grievor’s view that he was given a “rough ride” throughout the course of the trial period. Mr. Bettencourt requested that a labour-management meeting be set up to discuss the issue.

5. December 16, 2011- pursuant to the advice of Mr. Bettencourt, the grievor, pursuant to Article 15.02 of the collective agreement, requested that the Employer provide the reasons in writing as to why he was not successful in the Painter 2 position.

6. January 3, 2012 - Mr. Fraser Gregory was selected by the Employer to fill the reposted vacancy for the Painter 2 position.

7. January 18, 2012 - a labour-management meeting for the Engineering Department was held between representatives of the Employer and Union, including the grievor, to discuss the grievor’s removal from the Painter 2 position.

8. January 18, 2012 - in furtherance of the discussion at the meeting, Mr. Vlaad Zahradnik, Assistant Facility Manager of the Engineering Department wrote to the grievor setting out the reasons why, in the Employer’s view, he was not successful in passing the trial period for the Painter 2 position.

9. March 27, 2012 - the grievor was advised by Mr. Bettencourt that a meeting had been set up with Mr. Bettencourt and the Union’s legal counsel to discuss his removal from the Painter 2 position. The grievor had previously telephoned Mr. Bettencourt on February 10, March 10, and 26, regarding the proposed meeting with legal counsel.

10. April 12, 2012 - the meeting between the grievor, Mr. Bettencourt and the Union’s legal counsel took place.

11. April 12, 2012 - Mr. Bettencourt left a voice mail message with Ms. Lee advising that the Union was intending on filing a grievance challenging the Employer’s decision to remove the grievor from the Painter 2 position.

12. April 14, 2012 - Ms. Lee emailed Mr. Bettencourt inquiring why the Union was seeking to revisit the decision to remove the grievor from the Painter 2 position. Specifically, Ms. Lee inquired why the union was “now considering filing a very late grievance?”

13. April 27, 2012 - the Union filed a grievance on behalf of the grievor

4The relevant provisions of the collective agreement are as follows:

Article 8.01

The purpose of these procedures is to allow for a process to resolve issues in the workplace arising between the Employees, the Union and the Employer in a prompt manner.

Article 8.02

The Employer shall be under no obligation to consider or process any grievance or complaint unless such grievance has been presented to the Employer at Step 1 of the grievance procedure within ten (10) working days from the time the circumstances upon which the grievance is based were known, or should have been known, by the grievor.

Article 8.03

All time limits referred to in Article 8.00 shall be deemed to mean “working days”. Unless by mutual agreement, the timeframes provided for in the “Steps” section of the Complaint and Grievance procedure must be respected.

5The relevant statutory provision is Section 48 (16) of the Ontario Labour Relations Act, 1995 (OLRA), which provides:

Extension of time – Except where 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 the extension and that the opposite party will not be substantially prejudiced by the extension

Position of the Union

6The Union did not take issue with the fact that the grievance was filed outside the time limit set out at Article 8.02 of the collective agreement. Moreover, it was not suggested that time frames for the grievance procedure set out in Article 8 were not mandatory in nature.

7It was, however, asserted, that the parties had never strictly complied with the time frames for the filing of grievances, or the processing of grievances, as set out under Article 8 of the collective agreement. The Union made reference to a number of situations where grievances were filed outside the ten working days window for filing a grievance (Article 8.02) without the Employer raising any objection that such grievances were not filed in a timely manner. Accordingly, it was submitted that the Employer was estopped from asserting that the grievance, in the case at hand, was filed in an untimely manner.

8Further to its estoppel argument, Mr. Chochla, on behalf of the Union, noted that the previous collective agreement expired as of December 31, 2009. It was submitted that, prior to that date, the Employer did not provide the appropriate notice to the Union that it would be relying on the strict language of Article 8 and would be objecting to any grievance filed outside the time limit set out at Article 8.02. It was submitted that any alteration in the Employer’s practice, subsequent to the renewal of the collective agreement, did not put an end to the estoppel as the Union had not had the opportunity to address the issue through collective bargaining.

9In the alternative, it was asserted that the practice of the parties, of not strictly adhering to the time frames set out in the grievance procedure, was relevant to the issue of the exercising of my discretionary authority under Section 48 (16) of the OLRA to relieve against the failure of the Union to comply with the time limit for filing the grievance.

10On this point, reference was made to the Labour-Management Meetings held on June 8, 2011 and January 16, 2012. The Employer took the view that the discussion of the parties at those meetings, in part, affirmed a joint commitment of the parties to comply with time frames set out in the grievance procedure. However, from the Union’s perspective, the underlying message taken from the relevant discussions at those meetings, was the acknowledgment that the number of grievances had been dramatically reduced, as a result of increased communication between the parties regarding issues in dispute, prior to the filing of formal grievances. It was suggested that Mr. Bettencourt’s actions in not immediately filing a grievance after the January 18, 2012 meeting was consistent with that perspective. In particular, the Union adopted the sensible approach of seeking a legal opinion as to the merits of a potential grievance before initiating any formal action.

11In terms of the reasonableness of the delay in filing the grievance, the Union noted that Mr. Bettencourt was relatively new to servicing this type of bargaining unit, as historically he had primarily worked for the Union in the construction sector. It was submitted that grievances in the construction sector tended to be more clear-cut in nature and did not raise the type of issues that would be at play in terms of whether the Union could successfully challenge the decision to remove the grievor from the Painter 2 position. It was also suggested that Mr. Bettencourt was extremely busy during the period of time from January to April 2012.

12It was also suggested that Mr. Bettencourt’s mindset that the parties had adopted a relaxed attitude with regards to complying with the time frames under the grievance procedure should also be considered in terms of assessing the overall reasonableness of the delay in filing the grievance.

13Mr. Chochla further submitted that the Employer should have been fully aware, at the conclusion of the January 18, 2012 meeting, that the Union did not view the matter as closed. At that meeting, Mr. Bettencourt expressly indicated that the Union was upset about what had transpired regarding the grievor. Specifically, it was asserted that he was not given a fair opportunity during the trial period.

14It was further submitted that, while Mr. Bettencourt could not recall specifically advising the Employer at the January 18, 2012 meeting that he would be seeking a legal opinion, it was his view that he would have definitely made such a representation to the Employer. Further to this point, the Union asserted that Mr. Bettencourt’s evidence must be accepted, as the Employer failed to lead any evidence to the contrary. In particular, it was asserted that an adverse inference should be drawn from the fact that the Employer decided not to call Ms. Lee as a witness in this proceeding.

15With respect to the factor cited in the jurisprudence as to whether the grievor was in some way at fault for the delay in the filing of the grievance, it was submitted that the evidence suggested that the grievor, in a timely fashion, made inquiries of Mr. Bettencourt as to the status of his dispute. Accordingly, there was no basis to suggest that the grievor was in any way responsible for the delay in filing the grievance.

16As to the issue of whether the Employer was prejudiced by the delay in the filing of the grievance, the Union noted that, prior to the Employer hiring Mr. Gregory to permanently replace the grievor in the Painter 2 position, it was well aware that the Union had an issue regarding the appropriateness of the grievor’s removal from that position.

17It was also asserted any prejudice suffered by the Employer from a monetary liability perspective, as a result of the three month delay in filing the grievance, could be addressed by way of the remedy. Specifically, if the Union was successful with the grievance, it was suggested I would have the power to waive any claim for compensation owing to the grievor for the period from when it was determined the grievance should have been filed under Article 8.02 to when the grievance was actually filed on April 27, 2012.

18Finally, it was asserted that the importance of the grievance to the grievor argued strongly in favour of allowing the grievance to be heard on its merits. It was suggested that as a casual employee, the grievor receives only a few shifts a month so the adverse impact on his income as a result of his reversion back to casual status was dramatic. Moreover, it was noted that, due to this reversion, the grievor also lost entitlement to the health and welfare benefit coverage, enjoyed by full-time employees under the collective agreement.

19In support of its position the Union relied upon the following authorities: Becker Milk Company Ltd and Teamsters Union, Local 647 (1978) 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217(Burkett); Queensway General Hospital and O.N.A.(1996) 1996 CanLII 20420 (ON LA), 57 L.A.C. (4th) 194 (Kaplan); Prince Albert Parkland Health Region ( Cross Grievance) and Canadian Union of Public Employees, Local 4777 (2005) 2005 CanLII 94111 (SK LA), 136 L.A.C. (4th) 375 (Pelton); Conestoga College and Ontario Public Service Employees Union, Local 237 (2010) 194 L.A.C.(4th) 132 (Knopf); Ferranti-Packard Transformers Ltd. and U.S.W.A. , Local 5788 (1993) 36 L.A.C. (4th ) 307 (Haefling); Consumers Glass and United Steelworkers of America, Local 269 (2000) 89 L.A.C. (4th ) 400 (Albertyn); Dunn-Rite Food Products Ltd. and U.F.C.W. Local 832 [1994] M.G.A.D. No. 17 (Kaminski); Canadian Pacific Forest Products and I.U.O.E., Local 865 (1991) 1991 CanLII 13453 (ON LA), 18 L.A.C. (4th) 381 (Aggarwal); Selkirk College and British Columbia Government and Service Employees’ Union [1994] B.C.C.A.A.A. No. 423 (Chertkow); Natrel (Ontario) Inc. and Teamsters, Local 647 (1999) 83 L.A.C. (4th ) 55 (E. Newman); Natrel (Ontario) Inc. and Teamsters, Local 647 (Div. Ct) 104 A.C.W.S. (3d) 508; Unilever Canada Inc. and Bakery, Confectionery, Tobacco Workers and Grain Millers International Union and Its Local 264 (2011) O.L.A.A. No. 275 (Steinberg); Great Canadian Oil Sands Ltd. and McMurray Independent Oil Workers (1973) 1973 CanLII 2079 (AB GAA), 3 L.A.C. (2nd) 245 (Sychuk); Fort William Clinic and Service Employees’ International Union Local 268 [1997] OLRB Rep. May/June 406.

Position of the Employer

20Mr. Hart, on behalf of the Employer, submitted that there could be no dispute that the Union’s delay in the filing of this grievance was excessive. It was noted that the grievance was filed some five months after the grievor had been removed from the Painter 2 position. Even the most favourable view, from the Union’s perspective, as to when the grievance crystallized, suggested that the grievance was filed some three and half months after the January 18, 2012 meeting and the letter issued to the grievor on the same day, setting out the reasons for his removal from the position.

21From the Employer’s perspective, there was complete “radio silence” from the Union after the January 18, 2012 meeting until April 12, 2012, when, for the first time, Mr. Bettencourt advised Ms. Lee that the Union would be filing a grievance on the issue. There were no discussions between the parties, or a request by the Union to extend the time limit for filing the grievance, or any reference by the Union that it needed more time as it was seeking a legal opinion. It was also noted that the grievance itself was not filed until some two weeks after April 12 on April 27, 2012.

22It was asserted that there was no reason for the Employer to be under the impression that the issue in dispute was still outstanding, subsequent to the January 18, 2012 meeting. It was submitted that, at that meeting, there was a full discussion on the issues in dispute; with Mr. Bettencourt forcefully expressing the view of the Union that it was disappointed with the actions of the Employer in removing the grievor from the Painter 2 position. It was suggested that the meeting ended on the understanding that the Employer would put in writing, the reasons for the grievor not being successful in the trial period, as required under Article 15.02 of the collective agreement, and that would provide closure to the matter.

23The Employer submitted that the evidence was clear that Mr. Bettencourt did not, at the meeting on January 18, 2012, or any time subsequent to this and up until April 12, 2012, advise Ms. Lee, or any other member of management, that he was seeking a legal opinion on the issue in dispute. Further to this point, it was asserted that there was no need for the Employer to call Ms. Lee as a witness, as the evidence advanced by the Union failed to establish that, in fact, Mr. Bettencourt made any such representation to the Employer that he was seeking a legal opinion. Accordingly, no adverse inference flowed from the decision of the Employer that it was not necessary to call Ms. Lee as a witness.

24Mr. Hart asserted that the Union had failed to satisfy the onus of establishing a reasonable basis for the excessive delay in the filing of the grievance. It was noted that Mr. Bettencourt had been the servicing representative for this bargaining unit for approximately two and half years prior to the incident giving rise to this grievance. Accordingly, there was no foundation for the Union’s suggestion that the delay was somehow related to the unfamiliarity of Mr. Bettencourt to this type of dispute. Likewise, it was asserted that there was no merit to the suggestion that Mr. Bettencourt was in some manner too busy during the period from December 15, 2011 to April 27, 2012 to file a grievance.

25As to the Union’s estoppel argument, it was not disputed that the Employer had, to a certain degree, in the past, not always enforced the failure of the Union to comply with the time frames set out in the grievance procedure. It was, however, disputed that the nature of that past practice was so unequivocal or definitive in nature that it could be suggested that a clear representation had been made by the Employer that it would not object to a failure of the Union to file a grievance in a timely manner.

26Moreover, it was suggested that from October 2010 onwards, it was clear that the Employer had adopted the position that the expectation was, on a go forward basis, that the Union would comply with the time frames set out for filing and processing grievances under the collective agreement. Specific reference was made to discussions between the parties around October 2010 regarding the development of a pre-grievance complaint form. The purpose of the form was to encourage both parties to endeavour to resolve complaints prior to the issue festering such that the Union needed to file a formal grievance. It was the position of the Employer that, as part of the discussions between the parties at that time regarding the pre-grievance complaint form, there was a clear understanding, that if the Union was of the view that ultimately it would be necessary to file a grievance, there would be compliance with the time frames set out in the grievance procedure.

27Reference was also made to the Labour-Management meetings on June 8, 2011 and January 16, 2012. It was suggested that, at those meetings, the Union expressly agreed it was incumbent upon the parties to ensure that grievances were filed and processed in a timely manner. In particular, it was noted that Roly Bernardini, the President of the Union, at the June 8, 2011 meeting, indicated that the Union was of the view that it was important to comply with the time frames in the grievance procedure, as the longer things dragged out, the more frustration increased and the morale of the bargaining unit members was negatively impacted.

28It was noted that, subsequent to those meetings, the Employer had formally, in response to grievances not filed in accordance with the ten working days window in Article 8.02, adopted the position that those grievances were not filed in a timely manner and the Employer reserved the right to assert that an arbitrator would not have jurisdiction to hear the grievance.

29In support of its position, the Employer relied upon the following authorities: Kitchener-Waterloo Hospital and London and District Service Workers’ Union, Local 220 (1994) 1994 CanLII 18757 (ON LA), 44 L.A.C. (4th) 293 (H. Brown); Metropolitan Separate School Board and Ontario English Catholic Teachers’ Association (1991) 1991 CanLII 13308 (ON LA), 19 L.A.C. (4th) 251(Brent); Great Atlantic & Pacific Co. of Canada Ltd. and U.F.C.W., Local175/633 (1993) 1993 CanLII 16752 (ON LA), 33 L.A.C. (4th) 261 (M. Newman); Stratford and Area Association for Community Living and Ontario Public Service Employees’ Union, Local 141 (1999) 1999 CanLII 35884 (ON LA), 80 L.A.C. (4th) 334 (Shime); Fiddick’s Nursing Home and Christian Labour Association of Canada [2000] O.L.A.A. No. 481 (Goodfellow); Standard Products ( Canada) Ltd. and C.A.W.-Canada, Local 4451 (1998) 1998 CanLII 30089 (ON LA), 70 L.A.C. (4th) 21 (Davie);Olav Haavaldsrud Timber Co. and Industrial Wood and Allied Workers of Canada, Local 2995 [2005] O.L.A.A. No. 71 (Haefling); National Grocers Co. and Teamsters Union, Local 91 (1991) 1991 CanLII 13447 (ON LA), 20 L.A.C. (4th) 310 (Bendel).

Decision

30The first issue that needs to be addressed is the Union’s estoppel argument. It is well-established in the jurisprudence for the doctrine of estoppel to apply, that the party seeking to rely upon the doctrine has to establish the following:

1. There must be a clear and unequivocal representation by the other party to the collective agreement regarding the interpretation and/or application of the provisions of the collective agreement.

2. That representation was such that it was intended to affect the legal relations between the parties.

3. That the party in receipt of that representation relied upon that representation to its detriment such that it is no longer able to take a course of action that it would have otherwise taken.

31The evidence advanced by the Union in support of its estoppel argument fell well short of the mark of establishing that the Employer, through its conduct, had made a clear and unequivocal representation that it would not necessarily enforce the time limit for filing a grievance under Article 8.02. At best, the evidence advanced by the Union consisted of a few examples, where the Employer, in certain situations, did not object to the failure of the Union to comply with the time frames set out in the grievance procedure. The limited number of examples involved, and their sporadic nature, suggested the practice was not sufficiently prevalent or definitive to suggest that the Employer, by its conduct, made a representation to the Union.

32Further to the above, the Union had to establish more than the Employer had, in the past, in certain circumstances, not objected to a failure of the Union to comply with grievance time frames. For the doctrine of estoppel to be applicable, the Union had to establish that the Employer, through its past conduct, had made a representation to the Union that in all circumstances, or at minimum, in all circumstances similar to those that existed in the case at hand, would not object to the filing of an untimely grievance.

33Additionally, there were the discussions in October 2010 associated with the introduction of the pre-grievance complaint form, and the subsequent referenced discussions at the Labour-Management meetings on June 8, 2011 and January 16, 2012, where the parties generally addressed complying with grievance procedure time frames. While it could be suggested that the Employer overstated the importance of certain comments made by Union representatives during those discussions, the Union did acknowledge that it would endeavour, in the future, to adhere to the time frames set out in the grievance procedure.

34Arguably of more significance, in terms of the absence of an unequivocal representation by the Employer that it would not enforce the time limit under Article 8.02 related to those scenarios in 2011 and 2012 where the Employer formally objected to the failure of the Union to file a timely grievance. For example in response to an April 14, 2011 termination grievance of Maria Costa, the Employer in its formal response to the grievance, indicated that the grievance was filed in an untimely manner and therefore not arbitral. Similarly, with respect to a subsequent grievance, filed on March 23, 2012, on behalf of Ms. Costa, the Employer in its formal response asserted that the grievance was filed outside the time limit under Article 8.02. On a similar note, Ms. Lee had, with respect to another grievance, formally requested that Mr. Bettencourt, on behalf of the Union, extend the time frame for the Employer to respond to a grievance.

35Reviewing evidence of the conduct of the Employer as a whole, there was no reason that the Union, as of December 2011/January 2012, when the basis for filing a grievance on behalf of the grievor crystalized, should have been under the impression that the Employer would not necessarily object to the filing of a grievance well outside the 10 working days window set out at Article 8.02 of the collective agreement.

36With the Union failing to establish that the Employer had, by its conduct, made a representation that it would not necessarily enforce Article 8.02, there is no need to consider the detrimental reliance issue.

37The analysis, therefore, turns to the issue of whether I should exercise my discretionary authority under Section 48(16) of the OLRA to relieve against the failure of the Union to file the grievance in a timely manner. Pursuant to the wording of Section 48 (16), there are two relevant factors to consider: (1) are there reasonable grounds for the extension and (2) whether the other party was substantially prejudiced by the delay?

38In the case at hand, there is little basis to suggest that the Employer was substantially prejudiced as a result of the delay in the filing of the grievance. In contrast to some of the authorities relied upon by the Employer (see Great Atlantic & Pacific Co. of Canada Ltd; Standard Products (Canada) Ltd.) the Employer’s ability to marshal the relevant evidence to respond to the merits of the grievance would not appear to have been unduly prejudiced as a result of the failure of the Union to file the grievance in a timely manner.

39Accordingly, the issue of whether it is appropriate to exercise my discretionary authority under Section 48 (16) of the OLRA and relieve against the failure of the Union to comply with Article 8.02, turns on whether there are reasonable grounds for the extension of that time limit. It is important to recognize that the relevant issue is not simply whether the Union acted in a reasonable manner with respect to its failure to comply with Article 8.02. As Arbitrator Burkett observed in Becker Milk Company Ltd:

The term "reasonable grounds for the extension" as found in s. 37(5 a) [now s.48 (16)] of the Act is not synonymous with the reasonableness of the excuse advanced by the offending party. Having regard to the purpose of the section the term carries a broader signification which requires the arbitrator to weigh a number of factors, including but not necessarily restricted to those which have been set out above.

40The appropriate factors to be considered, in assessing whether such reasonable grounds exist, are well entrenched in the jurisprudence, as the two leading authorities setting out those factors (Becker Milk Company Ltd; Greater Niagara General Hospital and ONA, (1981) 1981 CanLII 4449 (ON LA), 1 L.A.C. (3d) 1 (Schiff)), date back over 30 years. The difference, in those decisions, in terms of setting out the relevant factors to be considered, is more stylistic than substantive in nature. For the purpose of my review, I have followed the three factor approach set out by Arbitrator Burkett in Becker Milk Company Ltd.

Length of the Delay

41The Union could have filed a grievance immediately upon the grievor’s removal from the Painter 2 position on November 23, 2011. Arguably, therefore, the grievance was filed some five months after the incident giving rise to the alleged violation of the collective agreement. Even if it was accepted, that the grievance only crystalized as of January 18, 2012 when the Employer provided the grievor the reasons in writing as to why he was not successful during the trial period, the grievance was filed some three months later on April 27, 2012. Irrespective of which time period is utilized, the delay in filing the grievance was excessive.

42More importantly, the Employer had every right to be under the impression that the matter was closed as of January 18, 2012 and that the Union would not be proceeding further on the issue. On this point, the review of the evidence suggests that, as Mr. Hart stressed, there was no communication of any sort from the Union subsequent to the January 18 meeting until the voice mail message Mr. Bettencourt left with Ms. Lee on April 12, 2012. In reaching that conclusion, the Union’s assertion that Mr. Bettencourt advised the Employer at the January 18, 2012 meeting, or thereafter, that the matter was still outstanding, as he was in the process of seeking a legal opinion, is not accepted. Generally, Mr. Bettencourt testified in a straightforward and, in my view, forthright manner. That being said, it is my view that his claim that he would have likely advised Ms. Lee that he was going to be seeking a legal opinion, or that he was in the process of seeking a legal opinion, was more of a wishful assumption than an actual fact.

43The lack of definitiveness associated with Mr. Bettencourt’s evidence pertaining to whether he advised Ms. Lee that he was seeking a legal opinion provides a complete answer to the issue as to whether an adverse inference should be drawn from the decision of the Employer not to call Ms. Lee as a witness in the proceeding. A party, upon weighing the evidence adduced by the other side, including the cross-examinations of witnesses, may decide it is not necessary to call any witnesses to rebut that evidence. Obviously, there is a potential risk with that approach, as the trier of fact has only accepted into evidence, the evidence of the other party. If the assessment, however, is that the evidence advanced has not been damaging, or is not credible, or not relevant to the issue in dispute, and that assessment is correct, no inference necessarily flows from the failure to lead evidence to the contrary.

Reason for the Delay

44The submitted evidence suggests that the grievor was not responsible for the delay incurred. He was advised by Mr. Bettencourt that a meeting would be arranged with legal counsel and in the intervening period he followed up with Mr. Bettencourt, in a timely fashion, inquiring as to the status of the meeting. The fact the grievor was not responsible for the delay is a consideration weighing in, in favour of exercising the discretion.

45As to the Union’s failure to act in a timely manner, it is difficult to accept the rationales offered to explain the delay in the filing of the grievance. On this point, even if Mr. Bettencourt was particularly busy, during the relevant period as suggested, it is not accepted that he did not have time to expedite the review of the matter and file a grievance, or for that matter simply contact Ms. Lee to request an extension of time limits.

46Turning to the suggestion that Mr. Bettencourt was inexperienced with respect to servicing this type of bargaining unit and that that fact somehow played a role in explaining the delay, it is noted that Mr. Bettencourt had been servicing this bargaining unit for over two years and generally was an experienced union representative. That being said, it is recognized that Mr. Bettencourt may not have been necessarily comfortable, in assessing the chances of success that the Union would have had at arbitration, with this grievance filed on behalf of the grievor. In this regard, Mr. Bettencourt’s decision to seek the advice of legal counsel was eminently sensible. No sufficient explanation, however, was provided as to why he failed to act with more diligence in endeavouring to acquire that legal opinion.

47As to the assertion that Mr. Bettencourt’s failure to move with more urgency was attributable, in part, to his mindset that grievance time frames had not been a concern for the parties in the past; as outlined in the discussion regarding the Union’s estoppel argument, the objective evidence throws into question the validity of a claim that, as of December 2011/January 2012, the Employer had a relaxed attitude to the Union’s non-compliance with the mandatory time frames set out in the collective agreement . Moreover, even if it were accepted that Mr. Bettencourt may have been under the impression that grievance time frames were not necessarily a pressing concern of the parties, that would not provide justification for the excessive delay associated with filing this particular grievance.

Nature of the Grievance

48As is often the case, the question as to whether there are reasonable grounds for extending time limits, the result in this matter is particularly driven by the nature of the grievance. It is a trite observation that arbitrators have a greater propensity to deem it appropriate to relieve against a failure to comply with time limits when the grievance pertains to the termination of the grievor or another significant job security interest of the employee. Further to this point, the following cases relied upon by the Union: Dunn-Rite Food Products Ltd., Selkirk College, Ferranti-Packard Transformers Ltd, Prince Albert Parkland Health Region, and Becker Milk Company Ltd., were, in fact, termination grievances.

49There is no doubt that the grievance undeniably involved an important issue for the grievor. If successful, the grievor would have a permanent position and the resultant benefit of steady full-time employment, and enjoyment of the health and welfare benefits applicable to full-time employees under the collective agreement.

50The issues raised by this grievance, however, have to be placed in the appropriate context. The collective agreement sets out a two-step process before an employee becomes entrenched into a posted position. The initial decision to award the position to an employee is conditional upon the employee satisfying the subsequent step of successfully completing the trial period as outlined under Article 15.04. The conditional nature of an employee's status during the trial period is reflected by the fact that the employee simply reverts back to his/her former position, if not successful in completing the trial period.

51A grievance pertaining to an employee not successfully completing the trial period, therefore in my view, is akin to a job posting grievance that would potentially arise if the employee had not been initially awarded the posted position. It would be very difficult to accept, absent extraordinary circumstances, that it would be appropriate to allow such a job posting grievance to be heard on its merits, if the Union, some three months after the employee was denied the position, without forewarning, decided to file a grievance challenging the Employer’s decision to award the position to another employee. The fact that the affected employee may gain appreciably in terms of pay and benefits, or a change in status if the grievance succeeds, would not alter the fact that the labour relations' interests of the parties would not be served by allowing such a ghost to arise from the past.

52Against the above background, the fact that the grievor may have been significantly impacted by his removal from the Painter 2 position is not a compelling enough reason, in the circumstances, to warrant relieving against the failure of the Union to comply with the time limit for filing the grievance.

53This case is distinguishable from the Queensway General Hospital case where a nurse’s status was changed from full-time to part-time on account of absences due to illnesses and disability. In that case, the nurse’s status as a full-time employee was fully entrenched. In the case at hand, as suggested, the grievor’s claim to the Painter 2 position and his acquirement of full-time status was conditional upon him successfully completing the trial period under Article 15.04 of the collective agreement.

54Another example of the exercise of the discretionary authority under Section 48 (16) of OLRA turning on the nature of the grievance is the decision in Unilever Canada Inc. It is clear that the key factor tipping the balance in favour of Arbitrator Steinberg exercising his discretion to relieve against the failure of Union to comply with the time limits, was the fact that the grievor was a sixty year old female who faced a “bleak future in terms of returning to gainful employment” and the grievance regarding the denial of LTD benefits was her only chance of “maintaining a decent standard of living and her dignity”. The removal of the grievor from the Painter 2 position and his reversion back to his former position is not comparable to the dire life circumstances facing the grievor in that case.

55In conclusion, given the excessive nature of delay, the fact that the Employer was not forewarned that the issue in dispute remained outstanding, the failure of the Union to provide a justifiable explanation for the delay, and the nature of the grievance, it is my view that it would not be appropriate, in the circumstances, to relieve against the, agreed-to mandatory time frame for filing a grievance set out under Article 8.02 of the collective agreement.

56Accordingly, the Employer’s preliminary motion is upheld, and the grievance is hereby dismissed.