GSB#2013-0526, 2013-0777

UNION#2013-0164-0014, 2013-0164-0015

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Robbins)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Michael Lynk

Vice-Chair

FOR THE UNION

Val Patrick Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Justin Diggle Liquor Control Board of Ontario Counsel

HEARING

March 9, 2015

Decision

I. Introduction

1This is an interim decision with respect to whether a grievance has been filed in an untimely fashion. The Liquor Control Board of Ontario (the “Employer”) has asked the Grievance Settlement Board to declare that the first of the two grievances filed by the Ontario Public Service Employees Union (the “Union”) on behalf of Mr. John Robbins is out of time, and that I should not exercise my statutory discretion to waive the governing time limits.

2At the time of his termination, Mr. Robbins was a casual employee of the Liquor Control Board of Ontario. He had worked at its warehouse in London, Ontario since his hiring in May 2011. Mr. Robbins is grieving two separate incidents of discipline. In December 2012, he was suspended for 15 working days following allegations of carelessness and intentionally reckless behaviour at work which purportedly breached the Employer’s health and safety procedures and policies. Subsequently, the Employer terminated Mr. Robbins in April 2013, following incidents in late February 2013 when he is alleged to have disobeyed work orders from a superior, and to have also purportedly taken unscheduled and unapproved breaks during the same work shift. Additionally, as part of the decision to terminate Mr. Robbins, the Employer has alleged that Mr. Robbins disobeyed his supervisor’s direction regarding an incident involving a warehouse transporter in mid-March 2013. In arriving at its decision to terminate Mr. Robbins, the Employer relied in part upon the prior 15 day suspension issued in December 2012.

3On 9 April 2013, Mr. Robbins and the Union filed two grievances, one contesting the 15 day suspension, and the second challenging the subsequent termination. The Employer has taken the position that Mr. Robbins’ 9 April 2013 grievance against the 15 day suspension is several months out of time, and there are no justifiable reasons for waiving the time limits. OPSEU maintains that the circumstances in this case justify the waiving of the time limits. This ruling deals only with the Employer’s preliminary motion to dismiss the 15 day suspension grievance as untimely.

II. Evidence

4The only witness to give testimony at the hearings on the preliminary issue was Mr. Robbins. The facts were largely uncontested.

5Mr. Robbins initially received a written Notice of Intended Discipline (NOID), dated 27 November 2012, which detailed an allegation of workplace misbehaviour involving him that was said to have occurred on 26 November. (A NOID is a written notice created by the Employer which initiates a disciplinary process.) Mr. Robbins subsequently attended a discipline meeting on 5 December with management. He was accompanied by Mr. Dan Rath, a local union steward.

6Following the 5 December meeting, the Employer decided to impose discipline on Mr. Robins. By letter dated 7 December 2012 to him, the Employer detailed the results of its investigation into his purported misbehaviour at the workplace during the November incident. The letter then stated that Mr. Robbins was being suspended for 15 consecutive working days, beginning with his scheduled shift on 10 December 2012 and ending after the final suspended scheduled shift on 2 January 2013. The suspension letter was copied to Mr. Greg Wilson, the local OPSEU president for the warehouse workers in London. The Union did not challenge the Employer’s express assertion that I should presume that Mr. Wilson received a copy of the letter. I shall proceed on that assumption, although little turns on this.

7Mr. Robbins’ first shift back at work following the suspension was 3 January 2013. He testified in direct examination that, during that shift, he spoke with Mr. Dan Rath, a union steward at the warehouse. He said that he asked Mr. Rath about the grievance process. According to Mr. Robbins, Mr. Rath told him that he would have Mr. Mark McKerlie, the chief union steward at the warehouse, contact him to initiate the paperwork for the grievance. The following day, Mr. McKerlie provided Mr. Robbins with a grievance form, which Mr. Robbins completed and returned to Mr. McKerlie on or about 4 January. Mr. Robbins did not retain a copy of the grievance. He testified that, after 4 January, he did not have any further contact with either of the stewards about his grievance. Mr. Robbins testified that he assumed that the grievance had been filed and was proceeding through the process.

8In late February 2013, Mr. Robbins was issued with another NOID by the Employer. This NOID alleged that Mr. Robins was involved in workplace misbehaviour during an incident on 21 February. With a union representative, Mr. Robbins met with the Employer on 14 March to discuss the allegations. He stated on direct examination that he did not recall any discussion at this meeting about the 15 day suspension grievance. He also testified that he was not called to any grievance meetings regarding the 15 day suspension throughout this period after 4 January.

9Mr. Robins was subsequently issued a termination letter, dated 8 April 2013, arising out of several incidents of purported misbehaviour in February and March. He recalled meeting with Mr. Wilson, the local president, on 9 April, and signing a grievance form to challenge his dismissal. In his testimony, he stated that Mr. Wilson told him during this meeting that the union was going to re-grieve the 15 day suspension, and so Mr. Robbins also signed a separate grievance on that day to challenge the December 2012 suspension. It was only on that day, he stated, that he realized that the December suspension had not been formally grieved by the Union.

10On cross examination, Mr. Robbins said that he met with Mr. Rath about grieving his 15 day suspension in early January, at the time of his return to work. He stated that Mr. Rath encouraged him to grieve his suspension. Subsequently, on or about 4 January 2013, Mr. McKerlie brought a grievance form to Mr. Robbins for his signature. Mr. Robbins acknowledged that he did not pay close attention to the form when he signed it, and he was not provided with a copy of the signed grievance form. He also acknowledged that he did not subsequently follow up with Mr. McKerlie or Mr. Rath with respect to the status of the suspension grievance, nor did they subsequently approach him at any time to provide information about the status or progress of the grievance.

11In response to a question that I asked, Mr. Robbins stated that when he met with Mr. Wilson on 9 April 2013 to sign the two grievances, he was not shown the grievance form that he said he had signed in early January with respect to the 15 day suspension. Mr. Robbins also said that he did not ask for an explanation in April as to why the Union did not file the suspension grievance in January.

12None of the three local union officers who were directly or indirectly involved in Mr. Robbins’ attempt to file a grievance in January 2013 against his 15 day suspension – Mr. Rath, Mr. McKerlie and Mr. Wilson – were called by the Union to testify.

13In its reply to the suspension grievance, dated 10 April 2013, the Employer raised the timeliness objection, taking the position that the grievance was out of time after 20 December 2012. There is no issue that the Employer’s objection was made in a timely fashion.

III. Statute and Collective Agreement

14There are several relevant provisions in the governing collective agreement that pertain to this issue:

Preamble

The general purpose of the Agreement is to establish and continue harmonious relations between the Employer and the employees covered by this Agreement and consistent therewith to provide procedures for the prompt and just disposition of differences and grievances.

Article 27.3 STAGE 1 (Complaint Stage)

(a) (i) An employee who has a complaint or a difference shall discuss the complaint or difference with his/her supervisor, as designated by the Employer, within ten (10) days of the employee first becoming aware of the circumstances giving rise to the complaint or difference.

(ii) Unless otherwise agreed between the employee and his/her supervisor, a meeting in respect of an employee’s complaint shall only be attended by the employee and his/her supervisor.

(b) The supervisor shall consider the complaint or difference and give his/her response to the employee within ten (10) days of the discussion.

(c) If the complaint or difference is not satisfactorily resolved by the supervisor, it may be processed within an additional ten (10) days from the date of the supervisor’s response or the expiration of the time limits set out in (b) above, in the following manner.

Article 27.4 STAGE 2

(a) The employee may file a grievance in writing with his/her supervisor specifying the clause or clauses in this Agreement alleged to have been violated.

(b) The supervisor shall complete an investigation of the grievance and provide the grievor with his/her written decision within fifteen (15) days of receiving the grievance. The investigation may include a meeting with the employee affording him/her an opportunity to be heard.

Article 27.10

(c) At any STAGE of the Grievance Procedure, the time limits imposed upon either party may be extended, in writing, by mutual agreement.

Article 27.12

Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn.

15The parties also accept that s. 48 (16) of the Ontario Labour Relations Act, 1995, SO 1995, c 1, Sch A, has been imported into the bargaining relationship of the parties through the provisions in the Crown Employees Collective Bargaining Act, SO 1993, c 38. Section 48 (16) provides that an arbitrator has the jurisdiction to extend time limits in a collective agreement, despite bargained language to the opposite effect, where reasonable grounds for the extension exist, and where the opposing party will not be substantially prejudiced by the extension:

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 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.

IV. Arguments

Liquor Control Board of Ontario

16Mr. Diggle, for the Employer, submitted that the 9 April 2013 grievance challenging Mr. Robbins’ 15 day suspicion, imposed in December 2012, should be dismissed because it is significantly out of time. Mr. Diggle pointed to the mandatory language in the collective agreement, to the fact that the grievance was filed more than three and a half months late, to the fact that the grievance was handled in early January by experienced union officers who should be very familiar with the time limits, and to the fact that no one from the union was summoned as a witness to explain to the Grievance Settlement Board as to why a grievance was not filed by 20 December 2012.

17The thrust of the Employer’s position is that the collective agreement, in Article 27.3(a)(i), stipulates that an employee who has a complaint or difference shall initiate a discussion with his or her supervisor “within 10 days of being aware of the circumstances that gave rise to the complaint or difference”. Mr. Diggle stated that the clear meaning of this provision was that the time limit for Mr. Robbins began ticking when he commenced the first day of his suspension on 10 December 2012, with 20 December – 10 calendar days later – being the final day to file a grievance.

18As well, Mr. Diggle pointed out that the parties had negotiated explicit language with respect to a failure to abide by the stated time lines. Article 27.10(c) provides that the time limits could be waived only by mutual agreement. In this present case, the Union had not sought an agreement with the Employer to extend the time limits. As well, Article 27.12 expressly states that a grievance that had not been processed within the negotiated time limits would be deemed to have been withdrawn. According to Mr. Diggle, this is strong language for a collective agreement, and must be kept closely in mind by a vice- chair when considering a request to extend the time limits.

19As for the issue of prejudice incurred by the Employer, Mr. Diggle asserted that the incident which gave rise to the suspension occurred in late November, and punishment was issued in early December, but the grievance challenging the suspension was not filed until after the termination of Mr. Robbins, in early April. In determining the appropriate punishment for the incidents in February and March 2013, the Employer relied upon the fact that the 15 day suspension had not been grieved and was therefore a settled and completed matter.

20The Employer submitted a considerable number of cases as authority for its motion to dismiss the suspension grievance: OPSEU v. Ontario (Ministry of Community Safety and Correctional Services) (McClelland), [2013] O.G.S.B.A. No. 84 (Briggs); OPSEU v. Ontario (Ministry of Community Safety and Correctional Services) (Mazara) (2012), 215 L.A.C. (4th) 336 (Gray); OPSEU v. Ontario (Ministry of Community Safety and Correctional Services) (Liantzakis), [2011] O.G.S.B.A. No. 165 (Petryshen); British Columbia Public Service Agency v. Professional Employees Assn. (Prodanuk), [2011] B.C.C.A.A.A. No. 151 (Germaine); West Fraser Electro/Mechanical Ltd. v. CEP, Local 1133 (Hunt) (2009), 188 L.A.C. (4th) 131 (Coleman); Vale Inco Ltd. v. USWA, Local 6500 (Cadotte), [2008] O.L.A.A. No. 781 (Burkett); New Flyer Industries Ltd. v. CAW (Nault), [2002] M.G.A.D. No. 43 (Chapman); Ontario Liquor Board Employees’ Union v. Ontario (Liquor Control Board) (Brennan), [2002] O.G.S.B.A. No. 27 (R. Brown); Cominco Ltd. v. USWA, Local 480 (Raymond) (2000), 2000 CanLII 50102 (BC LA), 87 L.A.C. (4th) 380 (Ready); Ontario Liquor Board Employees’ Union v. Ontario (Liquor Control Board) (Gamble), [1998] O.G.S.B.A. No. 1635/96 (Gray); Helen Henderson Care Centre and Service Employees Union, Local 183 (1992), 1992 CanLII 14626 (ON LA), 30 L.A.C. (4th) 150 (Emrich); Re Children’s Aid Society of Algoma and C.U.P.E., Local 1880, [1992] O.L.A.A. No. 359 (Brent); Gabriel of Canada Ltd. and I.A.M., Local 1295 (1988), 1988 CanLII 9174 (ON LA), 34 L.A.C. (3d) 42 (T. Jolliffe); Re Cassellholme Home for the Aged (District of Nipissing East) and C.U.P.E., Local 146 (1982), 1982 CanLII 5066 (ON LA), 3 L.A.C. (3d) 377 (H.D. Brown); Greater Niagara General Hospital v. O.N.A. (Pagonis) (1981), 1981 CanLII 4449 (ON LA), 1 L.A.C. (3d) 1 (Schiff); Re Toronto East General and Orthopaedic Hospital Inc. and Service Employees Union, Local 204 (1980), 1980 CanLII 3964 (ON LA), 28 L.A.C. (2d) 74 (Palmer); Re City of Toronto and C.U.P.E., Local 43 (1977), 1977 CanLII 2963 (ON LA), 16 L.A.C. (2d) 123 (Abbott); and Re Becker Milk Company Ltd. and Teamsters Union, Local 647 (1978), 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217 (Burkett). As well, it relied upon D. Brown & D. Beatty, Canadian Labour Arbitration (Toronto: Canada Law Book, loose-leaf, Dec. 2014 update) (4th Ed.), para. 2:3128.

OPSEU

21For the Union, Mr. Patrick submitted that the facts, properly considered, lead to the conclusion that the Employer’s motion to dismiss the suspension grievance for lack of timeliness should itself be dismissed.

22Mr. Patrick pointed to the preamble of the governing collective agreement. He noted that Mr. Diggle had emphasized the term “prompt…disposition of differences and grievances”. He observed that the full phrase states that the parties have agreed to provide the “prompt and just disposition of differences and grievances.” The resolution of the Employer’s motion must factor in whether it would be just to dismiss the suspension grievance on the basis of timeliness in light of all the circumstances.

23The Union disagreed with the Employer as to when the clock starts ticking, as per the 10 day time limit in Article 27.3. Mr. Patrick submitted that the clock is only activated in disciplinary suspension circumstances when the penalty ends, not when the penalty begins. In these present circumstances, Mr. Patrick argued that the clock started on 3 January 2013, when Mr. Robbins resumed work after serving his 15 day suspension.

24Mr. Patrick pointed to the fact that the grievor was unsophisticated when it came to grievance filing, and this lack of experience should not work against him with the stakes so high. Mr. Robins had less than two years service with the Employer at the time of the suspension, he had not encountered any progressive discipline before then, and he reasonably thought that, through his union, the necessary steps had been taken in early January 2013 to initiate the grievance against the suspension.

25As well, the Union emphasized that the express conditions in s. 48(16) – “reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension” – outweigh any language in the governing collective agreement and place a substantial onus on the Employer to make its case for the dismissal of the grievance on timeliness issues.

26With respect to the issue of substantial prejudice on the Employer, Mr. Patrick submitted that there is no evidence before me that, if the suspension grievance was permitted to be litigated on its merits, the Employer would be disadvantaged through the waning of memory, the loss of documents or the unavailability of witnesses. Consequently, there is no discernible prejudice.

27The Union did not submit any caselaw authority to support its position. Rather, Mr. Patrick critically reviewed the Employer’s submitted caselaw to distinguish their application to this matter.

Liquor Control Board of Ontario -- Reply

28Mr. Diggle addressed four points in his reply. First, he emphasized that the language in the governing collective agreement on the filing of grievances was mandatory, and not left as a choice to the parties whether to honour or not. Second, he disagreed with the Union as to when the clock starts in motion on the filing of a grievance. Mr. Diggle maintained that the clock starts ticking when the discipline is imposed. In this matter, the relevant time would be 10 December 2012, when Mr. Robbins started the first day of his suspension.

29Mr. Diggle’s third point went to the Union’s argument that Mr. Robbins was a short-term employee with little experience with the filing of grievances. Mr. Diggle observed that the Union did not call any of the three local union officers as witnesses during the hearings on the preliminary motion. The Union offered no explanation as to its failure to file the suspension grievance in a timely fashion, and this should count heavily in my considerations when deciding on the motion. As well, Mr. Diggle disagreed with the Union’s position that the April 2013 decision to discharge Mr. Robbins was founded on the prior suspension. He maintained that, while it played a role and was a contributing ground in the decision-making, it was not the main reason for the termination.

30The fourth and final point made by the Employer in its reply arguments went to the issue of prejudice. Mr. Diggle asserted that the prejudice present in this case goes to the right of the Employer – a bargained right – to have grievances against its decisions filed and processed in a timely fashion. In particular, he maintained that respectful and productive industrial relations requires that the application of discipline – a fundamental feature in industrial relations – demands in many cases a solid, reliable, transparent and defensible record as a building block. Allowing a 15 day suspension to go unchallenged for almost four months, and then to initiate a grievance only when the Employer is subsequently put in a position to impose more discipline, and therefore has to review the grievor’s file to assess the appropriateness of the new discipline, can only add an unhelpful and unnecessary element of uncertainty to the conduct of progressive industrial relations.

V. The Law

31The starting point for the determination of whether a legal decision-maker, operating under s. 48(16) of the Labour Relations Act, 1995, should exercise her or his jurisdiction to relieve against an untimely filed or advanced grievance is the 1982 ruling by Arbitrator Schiff in Greater Niagara General Hospital, supra. His award has become the touchstone for assessing timeliness claims in Ontario. Building upon an earlier seminal award on timeliness by Arbitrator Burkett in Re Becker Milk, supra, Arbitrator Schiff laid out six interrelated factors to assess the worthiness of a request to relieve against the time limits in a collective agreement so as to dismiss a grievance on the basis that it is untimely, and to not hear and decide the matter on its merits:

i. The nature of the grievance – The more significant the issue is to the parties – such as a termination or the imposition of serious discipline, or a vital collective agreement interpretation – the greater the weight that should be given to an extension. A matter of less significance will be accorded less weight.

ii. Whether the delay occurred at the launch of the grievance or at some later point in the process – If the delay occurred with a failure to initiate the grievance within the timelines, the employer will not learn what the grievor alleges nor have an opportunity to secure its own position. A prejudice caused by the failure to adhere to time limits may not be as serious to the employer if the delay occurred later in the process.

iii. Whether the grievor was responsible for the delay – A stronger presumption against any timeliness relief would exist if the grievor bore sole or primary responsibility for the delay. Notwithstanding this, if the responsibility for the delay fell entirely or largely on the union, this would not become a positive feature in favour of granting the relief. Rather, it would more likely have the effect of neutralizing the factor.

iv. The reason(s) for the delay – A finding of bad faith by the party that failed to file or advance the grievance would be a considerable mark against providing relief. Negligence, carelessness or disregard for the time limits would be less unacceptable, but still a matter of some concern.

v. The length of the delay – All things being equal, the longer the delay, then the greater the onus on the union and/or the grievor for providing a credible reason to explain the delay.

vi. Whether the employer could reasonably have assumed that the grievance had been abandoned – Union inaction that lulls an employer into a false sense of security may be given a weighty factor. This goes to the prejudice that an employer may face: it may well be lead to believe that no grievance is forthcoming or that the matter has been implicitly withdrawn by the union, and it may not take steps to protect its position, such as preserving memory, protecting evidence or marshalling arguments.

32In addition to this very helpful list of factors from Greater Niagara Regional Hospital, subsequent rulings on timeliness have issued some useful observations that have enriched the analysis into this question:

• The sophistication of the grievor, and her or his familiarity with the grievance process, can be an element to be considered. If the grievor is, or had been, a local union officer, or had previously filed grievances, this may be a factor against extending time limits: Donwood Institute and OPSEU (1997), 1997 CanLII 25132 (ON LA), 60 L.A.C. (4th) 367 (Brandt). Conversely, a grievor who had never filed a grievance before, and who depended on the union for guidance, may result in a more lenient approach towards timelines: Ontario (MCSCS) (Brennan), supra.

• Arbitrators differ as to the significance of an initial failure to grieve unchallenged prior discipline which was used to justify a subsequent termination, based on the principles of progressive discipline. Some arbitrators have held that unchallenged prior discipline cannot be reopened merely because the grievor is now facing termination based in part on the prior record. There must be other, persuasive reasons to justify timeliness relief: Ontario (MCSCS) (McClelland), supra. Other arbitrators have said that unchallenged prior discipline which creates a ‘serious impact’ on the grievor requires the employer to demonstrate ‘real prejudice’ in order to thwart the operation of s. 48 (16). Real prejudice amounts to a course of action that would not otherwise have been taken and it must be a course of action that cannot be reversed without harm to the employer: Vale Inco Ltd, supra. This latter observation is broadly consistent with the requirement in s. 48 (16) that the prejudice to the employer has to be substantial.

• A three month delay is not a modest delay, but nor is it, by itself, an intolerable length of time. While no hard-and-fast rule creating a bright red line based on the length of the delay exists, or should exist, given the other factors at play, requests for a time limit extension in this time range have been turned down – Ontario (MCSCS) (McClelland); British Columbia Public Service Agency, supra – and, conversely, have been allowed to proceed in order to be heard on their merits: Liquor Control Board of Ontario (Brennan), supra. To be sure, arbitrators have dismissed grievances when the timeliness breaches had been shorter than three months – Helen Henderson Care Centre, supra; and West Fraser Electro/Mechanical Ltd., supra – and permitted time extensions when the breach far exceeded three months: Re City of Toronto and CUPE, Local 43 (1990), 1990 CanLII 12877 (ON LA), 17 L.A.C. (4th) 420 (Springate); and Re Ferranti-Packard Transformers Ltd. and USWA, Local 5788 (1993), 1993 CanLII 16683 (ON LA), 36 L.A.C. (4th) 307 (Haefling).

• Unions and employees owe a general obligation of due diligence to employers and the industrial relations process in ensure the timely filing and advancement of grievances: (Ontario (MCSCS) (Mazara). However, this must be balanced with the long-standing industrial relations rule that, as much as possible, workplace differences should be resolved on their substance rather than on technical or procedural issues: Blouin Drywall Contractors Ltd. and UBC (1975), 1975 CanLII 707 (ON CA), 8 O.R. (2d) 103 (C.A.); Vale Inco Ltd.

• While the ultimate legal source governing the issue of timeliness in Ontario is s. 48 (16), adjudicators should pay attention to the intentions of the parties, as expressed by the language governing time limits in the collective agreement. If the parties have chosen mandatory language, even if they have decided not to preclude the operation of s. 48 (16), this should be a consideration in the decision-making: (Ontario (MCSCS) (Mazara); Liquor Control Board of Ontario (Gamble), supra; Helen Henderson Care Centre.

VI. Decision and Reasons

33The first question for me to decide has to do with when the grievance clock starts to tick. Although this question is not decisive in determining the ultimate issue before me, this was a point of difference between the Employer and the Union, and it may be helpful to the parties to have this matter clarified. Mr. Patrick for the Union has argued that, in our circumstances, the clock remains dormant until the grievor had completed the discipline. In other words, Mr. Robbins and the Union were not in breach of any collective agreement time limits until 10 calendar days after the last day of his served suspension. According to this view, the grievance clock would only start in motion on 3 January 2013, and the grievance time limits would have expired on 13 January. Mr. Diggle for the Employer has submitted that the clock starts ticking in a discipline matter when the grievor starts to serve her or his punishment. In this scenario, the grievance clock began on 10 December, when Mr. Robins served the first day of his suspicion, and the grievance was due by 20 December.

34In Liquor Control Board of Ontario (Brennan), Vice-Chair Richard Brown read Article 27 to say that the grievance starts ticking when the grievor becomes aware of the workplace discipline, as per Article 27. In Brennan, the grievor, who initially received a three day suspension, did not utilize the stage one informal complaint process. Therefore, the clock was triggered when the grievor received his letter of suspicion, and expired 10 calendar days later. I agree with Vice-Chair Brown’s reading of the collective agreement. (A similar reading of the start-time for the timeliness clock is found in Liquor Control Board of Ontario (Gamble)). In our case, no evidence was led as to when Mr. Robbins actually received the 7 December 2012 letter of discipline, so I will assume that he became aware on the same day that he commenced serving his discipline, namely 10 December. No argument was made at the hearing that the Union or Mr. Robbins sought to rely upon or utilize the stage one informal complaint process. Accordingly, the time limits would have expired on 20 December. As a consequence, Mr. Robbins’ 9 April 2013 grievance against his 15 day suspension was more than three and a half months late.

35I now turn to the issue at hand. After applying the various relevant factors and considerations to the facts of this case, the result is a near-draw between the merits of the arguments submitted by the Employer and the Union. Favouring the Employer are the facts that the delay occurred at the very start-point of the grievance process, leaving the Employer to understandably assume that it would not have to defend its decision through the grievance process; the lack of any explanation by the Union for the delay of three and a half months in filing the grievance; the mandatory language on time limits in the collective agreement; and the reliance by the Employer on the unchallenged suspension when it decided to subsequently dismiss the grievor for a purported and unrelated series of misbehaviour incidents at work.

36On the other hand, I acknowledge that the Union has relevant factors and considerations on its side of the ledger as well. The grievance at hand involves a 15 day suspension, which, short of termination, is about as serious as industrial discipline can become. The grievor was not responsible for the lengthy delay in initiating the grievance. As well, he had no or little prior experience in filing a grievance. On the evidence, Mr. Robbins had assumed, reasonably, that his local union officers would follow through with their undertaking to launch a grievance on his behalf in early January. (Parenthetically, I note that, had the grievance been initiated at this time, it would also have been out-of-time under Article 27). Additionally, the Employer has not made out a case that it would suffer any substantial prejudice in any arbitral defence of its decision to impose the 15 day suspension on Mr. Robbins, aside from the fact, mentioned above, that it had relied upon the unchallenged suspension in its subsequent decision-making.

37I have carefully considered the competing factors and considerations provided in the authorities presented to me. In particular, I have paid attention to the ruling by Vice-Chair Brown in Liquor Control Board of Ontario (Brennan), which comes closest to the facts in our case and which also involved a timeliness issue between the Employer and the Union. In Brennan, the Employer imposed a three day suspension on the grievor. The grievor and the Union did not file a grievance against the suspension for 11 ½ weeks after the expiry of the time limits. The grievor was subsequently terminated, with the Employer relying in part upon the unchallenged three-day suspension as part of the disciplinary record. The failure to file the suspension grievance in a timely fashion was found to be the responsibility of the Union (due to a careless misunderstanding as to whether a grievance had been initially filed within the time limits), rather than the grievor, who was unsophisticated with respect to the grievance process. The Employer did not contend that it would be substantially prejudiced by an extension.

38In the circumstances, Vice-Chair Brown exercised his statutory discretion and extended the period of time for filing the grievance. I note that the three-day suspension in Brennan is considerably shorter than the 15 day suspension in our present case. The mandatory collective agreement language in Article 27 in Brennan is the same language that exists in the current version of the agreement. The length of the delay in Brennan was about a month shorter than our case, which is a notable, but not a large, difference. One pertinent distinction between the cases is that the Union in Brennan presented an explanation for the delay, a factor missing in our present case.

39The other authority that was cited to me involving the present parties is Liquor Control Board of Ontario (Gamble), authored by Vice-Chair Owen Gray. Gamble is a thoroughly reasoned ruling that is a model of analysis on the issue of timeliness. However, it can be distinguished from our present case via one significant fact: the delay in filing the grievance in Gamble was two years, compared to our three and a half months. Vice-Chair Gray held that the length of the delay was simply too great, notwithstanding the lack of demonstrable prejudice that would be suffered by the Employer, to warrant relief under s. 48 (16). He stated that reasonable grounds to relieve against a delay of this length did not exist in Gamble.

40Of the other authorities that were presented to me, I have found the following cases to be particularly useful precedents when assessing the evidence of the case before me.

41Ontario (MCSCS) (McClelland) is a 2013 decision of the Grievance Settlement Board, involving a three day suspension that was not grieved for three and a half months after the time limits expired. A termination on other grounds subsequently followed. At the hearing, the union urged Vice-Chair Briggs to extend the time limits, in part because the suspension was being used as a building block for the termination. The Vice-Chair declined to exercise her jurisdiction. McClelland involved the very same length of time delay as our present case, the same point of delay in the grievance process (i.e., the initial filing of the grievance), and the same general discipline situation (i.e., an unchallenged suspension, later followed by a termination that relied upon the suspension as part of the progressive discipline). The union did offer an explanation for the delay in this case, but this was not accepted by the Vice-Chair as amounting to reasonable grounds. However, McClelland is distinguishable from our case because the length of the suspension was considerably smaller, and the grievor, who bore primary responsibility for the delay, had previously filed six grievances and was very familiar with the grievance process. In matters involving a substantial suspension that creates a serious impact upon a grievor – such as a 15 day suspension – I am in agreement with Arbitrator Burkett in Vale Inco Ltd. that, all other factors and considerations being equal, a real prejudice should have to be shown by the employer in order to justify the denial of a time limit extension where the time limit breach involved a relatively short or moderate period of time.

42In Helen Henderson Care Centre, the time limit delay was 13 days, and occurred at the very start of the grievance process. The collective agreement language on time limits was mandatory. As with our case, there was no good explanation for the delay. The request for a time limit extension was denied. However, the significant difference between Helen Henderson and our case is the fact that the grievance in that matter involved pay rates, a matter of importance in industrial relations, to be sure, but not at the same qualitative level as a 15 day suspension.

43In Vale Inco Ltd., the union failed to grieve the imposition of a ‘fourth-step’ discipline, which was subsequently relied upon by the employer several months later when it terminated the employee. The grievance challenging the ‘fourth-step’ discipline was approximately 50 days out of time, and was filed at the same time as the dismissal grievance. The employer maintained that its reliance on the unchallenged discipline amounted to sufficient prejudice such as to justify the denial of any time limit extension. The time limits language in the collective agreement, while not mandatory, stipulated that grievances should be filed and processed “without undue delay”. No real explanation was offered by the union for the delay, beyond the fact that the matter had fallen through the cracks. In Vale Inco, Arbitrator Burkett allowed the time limits to be extended, ruling, at para. 17, that he was not satisfied that the prejudice faced by the employer through its reliance on prior unchallenged discipline, without more, constituted “a type of prejudice that ought to prevent relief from the time limits in the filing of a grievance in respect of prior discipline.”

44With all of this in mind, I have decided to exercise my authority under s. 48 (16) and allow the collective agreement time limits in this matter to be extended. I say this for two reasons. In doing so, and particularly in light of the near-draw in the arguments presented to me, I have kept in mind that the Employer bears the ultimate onus to establish its case on this preliminary matter.

45First, the two fundamental factors that are provided for in s. 48 (16) – whether there are reasonable grounds for an extension and whether the employer would be substantially prejudiced by an extension – favour the granting of an extension of the time limits. The reasonable grounds in this case include the length and seriousness of the industrial discipline involved (i.e., 15 days), the non-involvement of the grievor in the delay, and the fact that the length of the delay – while a matter of genuine concern at three and a half months – is within a range that has been accepted, all other things being equal, in other comparable arbitration decisions. As well, I am not persuaded that the Employer would be substantially prejudiced by an extension. In particular, it is apparent that the Employer would not face difficulties in presenting evidence and documents, summoning witnesses, or encountering decayed memories if it would be required to justify its suspension decision before this Board.

46Second, I am very mindful of the various factors that support the Employer’s argument, yet they have not persuaded me that I should refrain from applying my authority under s. 48 (16). I have weighed these cumulative points that were compellingly advanced by Mr. Diggle: the stage in the grievance process where the delay occurred; the reliance by the Employer on the unchallenged suspension when it was deciding upon the subsequent termination; the decision by the Union not to call any of the local officers to explain the delay; and the mandatory language in the collective agreement. Ultimately, these factors, while significant, do not outweigh the grounds for relieving against the time limits in this case. The fact that the delay occurred at the very beginning of the process, and the fact that the Employer subsequently used the unchallenged grievance as part of its basis for Mr. Robbins’ termination go largely to the issue of prejudice. I have found that the degree of prejudice faced by the Employer would not substantially impair its ability to mount a proper defence of its suspension decision. I have carefully considered the mandatory language on time limits in the collective agreement but, at the end of the day, I find, as Vice-Chair Brown found in Brennan, that this factor does not trump the other considerations leaning towards the exercise of the discretion to extend the time limits. Finally, the decision by the Union to not call any of the local union officers to explain why the suspension grievance was not filed in a timely fashion was unhelpful to the Union’s case, but, on the scale of things, this did not decisively tip the scales against an extension of the time limits. I say this because the totality of the evidence before me, even with an adverse inference drawn against the Union as to why the suspension grievance was not filed in January 2013, would still indicate that nothing more than negligence or carelessness on the part of the Union was involved. As the caselaw that we have reviewed indicates, this is a factor to consider, but not a decisive factor by itself.

47For all these reasons, the Employer’s preliminary motion to dismiss the 15 day suspension grievance filed by the Union on behalf of Mr. Robbins on 9 April 2013 is denied. I will hear Mr. Robbins’ suspension grievance on its merits, along with the termination grievance, on dates already scheduled by the Board.