GSB#2015-2559

UNION#2014-0586-0124

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Chu)

Union

• and -

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

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Seung Chi Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Caroline Cohen Treasury Board Secretariat Legal Services Branch Counsel

HEARING

October 7, 2016

Decision

1Mr. HC Chu’s employment was terminated on September 24, 2015. Mr. Chu had previously been issued a letter of reprimand dated June 20, 2014, for not complying with a manager’s direction and for the manner in which he dealt with a client. He grieved the letter of reprimand. The focus of the hearing on October 7, 2016, was only on the Employer’s motion to the effect that the reprimand grievance is inarbitrable because it had not been referred to arbitration in a timely manner. The Union took the position that the Employer had waived its right to rely on the time limit for referring grievances to arbitration. In addition to arguing the waiver issue, the parties made submissions on whether it was appropriate for me to exercise the discretion to extend the relevant time limit.

2As part of their submissions, the parties provided me with the following factual context for determining the Employer’s motion:

(1) The Employer issued Mr. Chu a letter of reprimand dated June 20, 2014.

(2) Mr. Chu was on sick leave from June 23, 2014, until September 19, 2014.

(3) Mr. Chu’s timely grievance challenging the reprimand is dated July 14, 2014.

(4) The stage 2 meeting for the reprimand grievance was held on October 23, 2014. The local OPSEU steward attended the meeting. The OPSEU staff representative did not attend the stage 2 meeting.

(5) The Employer’s stage 2 response denying the reprimand grievance is dated October 31, 2014. It was sent by email on that day to Mr. Chu and to the local Union steward. In a follow-up email dated November 5, 2014, Mr. Chu advised that he would “make further efforts to dig out more evidence for the next step.” Mr. Chu copied the local Union steward and the OPSEU staff representative on his email.

(6) Mr. Chu was suspended with pay starting on July 9, 2015, and his employment was terminated on September 24, 2015. The discharge occurred some 11 months after the Employer’s stage 2 response on the reprimand grievance. Mr. Chu filed a grievance dated September 29, 2015, against the discharge and this grievance was referred by the Union to the GSB on October 8, 2015. Mr. Chu was copied on the referral letter, consistent with the Union’s practice. The discharge grievance was scheduled for hearing at the Joint File Review held on December 9, 2015. The parties agreed to a hearing date of March 21, 2016.

(7) The reprimand grievance was referred to the GSB by a Grievance Officer by letter dated December 9, 2015. Mr. Chu was copied on the referral letter. The referral was some 13 months after the Employer’s stage 2 response on the reprimand grievance and about 2.5 months after Mr. Chu’s employment had been terminated. On February 10, 2016, the parties also agreed to schedule the reprimand grievance for March 21, 2016, and the GSB issued a revised notice of proceeding reflecting their agreement.

(8) The parties did not resolve the grievances at the mediation held on March 21, 2016. The Union admits that Employer counsel made reference to a timeliness objection at the mediation, but that there was no indication that the objection related to the referral of the reprimand grievance. A number of hearing dates were scheduled, the first one being October 7, 2016.

(9) There were some emails exchanged between Employer counsel and the Union representative. In an email dated February 19, 2016, which dealt with a few matters, Employer counsel advised that the Employer would be raising a preliminary motion to have the reprimand grievance dismissed for delay since “it was referred to the GSB some 17 months after it was filed.” Counsel also asked for the reasons for the delay in referring the reprimand grievance. In a subsequent email dated March 3, 2016, again dealing with a number of matters, Employer counsel again referred to the preliminary motion the Employer intended to make and noted that the Union had not yet provided the reasons for the delay in referring the reprimand grievance to the GSB.

(10) In an email to the Union dated October 7, 2016, Employer counsel requested reasons for the delay “in filing the grievance.” After the Union responded that the grievance was timely, Employer counsel clarified on the day before the hearing that the Employer’s motion concerned the untimely referral to arbitration.

(11) Mr. Chu is or was an information steward for the Union. He had also filed grievances in the past. One of his grievances was filed in 2005 and did not come before the GSB until 2008.

3The grievance procedure is found in article 22 of the Collective Agreement. The relevant provisions of this article for our purposes are as follows:

22.1 It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including

any question as to whether a matter is arbitrable.

22.3 The designated management representative 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.

22.6.1 If the grievor is not satisfied with the decision of the designated management representative 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 days (15) of the date he or she received the decision or within fifteen (15) days of the specified time limit for receiving the decision.

22.14.1 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.

22.14.3 The time limits contained in Article 22 may be extended by agreement of the parties in writing.

22.14.6 The GSB shall have no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreements.

22.14.7 Notwithstanding Article 22.14.6, the GSB has the jurisdiction to apply section 48(16) of the Ontario Labor Relations Act to extend the timelines specified in the collective agreement at all stages of the grievance and arbitration processes.

4The nature of the issues before me is such that it is unnecessary to review the submissions of the parties or the decisions I was referred to in any detail. The Union concedes that the time limit of 15 days in article 22.6.1 for referring a grievance to the GSB is a mandatory requirement. It also concedes that the referral of the reprimand grievance to the GSB was untimely. Indeed, the referral of the reprimand grievance was late by about 13 months and it was made some 2.5 months after Mr. Chu’s employment had been terminated. The Union explained the late referral by noting that the local Union steward had failed to move the grievance forward.

5In support of the Employer’s position on the motion, Employer counsel relied on the following decisions: OPSEU (Narine-Singh) and Ministry of Education and Training, GSB #0035/98, dated September 29, 1999 (Leighton); OPSEU (McClelland) and Ministry of Community Safety and Correctional Services, GSB #2011-1014 et al., dated June 7, 2013 (Briggs); OPSEU (Nedai) and Ministry of Attorney General, GSB #2015-2063 et al., dated August 22, 2016 (Briggs); OPSEU (Petrovicz) and Liquor Control Board of Ontario, GSB #2013-0660 et al., dated September 23, 2016, (Brown); Re OPSEU and Ontario (Ministry of Community Safety & Correctional Services (2012), 215 L.A.C. (4th) 336 (Gray); OLBEU (Gamble) and Liquor Control Board of Ontario, GSB #1635/96 dated September 1, 1998 (Gray); OPSEU (Alexander) and Ministry of Transportation, GSB #2231/97 et al., dated June 14, 1999; and, OPSEU (Liantzakis) and Ministry of Community Safety and Correctional Services, GSB #2008-3252, dated November 22, 2011 (Petryshen).

6The Union supported its submissions with the following decisions: OPSEU (Kaltagian) and Ministry of Health and Long-Term Care, GSB # #2012-4253 et al., dated April 24, 2015 (Dissanayake); OPSEU (Stone) and Ontario Clean Water Agency, GSB #1111/99, dated March 19, 2001 (Johnston); and, OPSEU (Clarke) and Ontario Clean Water Agency, GSB #2015-0599, dated January 11, 2016 (Carrier).

7I will first briefly address the issue of whether the Employer waived its right to rely on the relevant time limit. The doctrine of waiver is described in Brown & Beatty, Canadian Labour Arbitration at p. 2-107 as follows:

In its application, waiver is a doctrine that parallels the one utilized by the civil courts known as “taking a fresh step”, and holds that by failing to make a timely objection and by “treating the grievance on it merits in the presence of a clear procedural defect, the party waives the defect.” That is, by not objecting to the failure to comply with mandatory time-limits until the grievance comes on for hearing, the party who should have raised the matter earlier will be held to have waived noncompliance, and any objection to arbitrability will not be sustained…

8The Union made its submissions on the waiver issue based on the view that the Employer did not object to the late referral of the reprimand grievance until the day before the October 7, 2016 hearing. If the Employer had made its objection then, there may have been a basis for finding that the Employer had waived its right to object to the late referral. However, the facts illustrate that the Employer had objected earlier to the late referral of the reprimand grievance. The referral of the reprimand grievance was made on December 9, 2015. The parties agreed on February 10, 2016, to have this grievance heard on the same date that had been scheduled for Mr. Chu’s discharge grievance, namely March 21, 2016. It was on February 19, 2016, that Employer counsel first advised the Union that the Employer intended to object to the late referral of the reprimand grievance to the GSB. Employer counsel reiterated the objection in her email to the Union dated March 3, 2016. The Employer’s objection to the late referral was made well in advance of the mediation that took place on March 21, 2016. There is no basis for concluding on the facts before me that the Employer treated the grievance on its merits in the face of a clear defect. I therefore agree with counsel for the Employer’s contention that the Employer did not waive its right to object to the late referral of the reprimand grievance.

9I now turn to the issue of whether I should exercise my discretion to extend the time limit for the filing of the reprimand grievance. The parties have agreed in article 22.14.7 of the Collective Agreement that the GSB has the jurisdiction to apply section 48(16) of the Ontario Labour Relations Act (“the Act”) to extend the time limits of the grievance and arbitration processes. Section 48(16) of the Act provides as follows:

48(16) 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 the 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.

10The effect of this provision is that a time limit can be extended if the arbitrator is satisfied that there are reasonable grounds for the extension and that such an extension will not substantially prejudice the opposite party. The relevant factors for consideration when determining whether to exercise the discretion to extend time limits were canvassed in Becker Milk Company and Teamsters Union, Local 647 (1978), 1978 CanLII 3436 (ON LA), 19 L.A.C. (2nd) 217 (Burkett) and Greater Niagara General Hospital and O.N.A. (1981), 1981 CanLII 4449 (ON LA), 1 L.A.C. (3rd) 1 (Schiff). Arbitrator Burkett identified the following factors:

1. The reason for the delay given by the offending party.

2. The length of the delay.

3. The nature of the grievance.

After identifying these factors, the arbitrator went on to state:

If the offending party satisfies an arbitrator, notwithstanding the delay, that it acted with due diligence, then if there has been no prejudice the arbitrator should exercise his discretion in favour of extending the time limits. If, however, the offending party has been negligent or is otherwise to blame for the delay, either in whole or in part, the arbitrator must nevertheless consider the second and third factors referred to above in deciding if reasonable grounds exist for an extension of the time limits.

11Arbitrator Schiff referred the following factors:

1. The nature of the grievance.

2. Whether the delay occurred in launching the grievance or at a later stage.

3. Whether the grievor was responsible for the delay.

4. The reasons for the delay.

5. The length of the delay.

6. Whether the Employer could reasonably have assumed the grievance had been abandoned.

12The above decisions contain examples of how these factors are applied in

different factual contexts and suggest that the various factors are not considered in isolation. In essence, the decisions illustrate that the extent of the delay and the reason for the delay will be considered in light of the seriousness of the subject matter grieved.

13Although the Employer suggested that Mr. Chu was not diligent in moving the grievance forward, I am prepared to assume that Mr. Chu was not responsible for the delay in referring the reprimand grievance. I also appreciate that the delay relates to the referral of the grievance and not to the filing of the grievance. These are factors that weigh in favour of granting an extension. However, there a number of factors which strongly weigh in favour of not granting an extension of the 15-day time limit. On a scale of seriousness, a grievance that challenges a letter of reprimand is quite low on the level of seriousness. The fact that Mr. Chu was subsequently discharged does not alter the nature of the grievance; it is still of course a reprimand grievance. More importantly, a 13-month delay in referring the grievance to arbitration is very extreme and there has been no satisfactory explanation given for the delay. The 2.5 months it took to refer the grievance after Mr. Chu was discharged could by itself be considered a significant delay that is indicative of a lack of due diligence. The time it took in this case to refer the reprimand grievance to the GSB is quite inconsistent with the expressed intention of the parties to adjust complaints as quickly as possible. After considering the relevant factors, I am satisfied that there is an absence of reasonable grounds in this case to support the extension of the relevant time limit. Therefore, the Employer’s motion is allowed and Mr. Chu’s reprimand grievance dated July 14, 2014, shall be deemed to have been withdrawn, consistent with article 22.14.1 of the Collective Agreement.