GSB#2015-0599

UNION#2014-0704-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Clarke)

Union

• and -

The Crown in Right of Ontario (Ontario Clean Water Agency)

Employer

BEFORE

Joseph D. Carrier

Vice-Chair

FOR THE UNION

Jesse Gutman Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Ferina Murji Treasury Board Secretariat Legal Services Branch Counsel

HEARING

December 10, 2015

Decision

1The subject matter of the grievance before me dated October 28, 2014 is an allegation by Alan Clarke, a Process and Compliance Technician for the Ontario Clean Water Agency, that his layoff on or about October 21, 2014 was improper. During their Joint File Review the corporate parties agreed that the issue be dealt with pursuant to Section 22.16 of their Collective Agreement. I do not propose to reproduce those provisions in this Award except to note that the procedure calls for mediation failing which an expeditious arbitration process follows.

2There was an attempt at the initial day of hearing to mediate the matter which effort was unsuccessful. As previously agreed between the parties, the Employer then brought a preliminary motion that the matter be dismissed due to an untimely referral to arbitration. It is that dismissal motion which is presently before me and which I propose to determine in a relatively brief but reasoned manner.

3As noted earlier Mr. Clarke received his layoff notice on or about October 21, 2014. According to documentation received from the Employer, the layoff of Mr. Clarke followed his receipt of a surplus notice alert on or about October 9, 2014 which was premised on a diminished work load in the Northwestern Ontario Hub.

4It was the Union’s position on behalf of Mr. Clarke that his layoff was improper in that the work he had been performing until his layoff continued to be performed thereafter and that another individual was retained thereafter as a replacement and continued to perform the duties that had previously been done by the Grievor himself. In the circumstances, it was the Union’s position that the net effect of the surplus notice and his layoff was a termination of Mr. Clarke which was without just cause.

5With respect to the Employer’s preliminary motion that the matter be dismissed for delay the following sequence of events was identified by Ms. Ferina Murji, counsel for the Employer:

1. On September 24, 2014 the Employer wrote to Mr. Warren (Smokey) Thomas, President of OPSEU to advise that the Northwestern Ontario Hub had lost three significant clients and that “as a result, one (1) Process and Compliance Technician position in the Northwestern Ontario Hub will be eliminated”.

2. On or about October 9, 2014 Mr. Clarke was provided with a surplus notice.

3. On or about October 21, 2014 Mr. Clarke was provided with a notice of layoff.

4. On October 28, 2014 Mr. Clarke grieved his layoff.

5. On January 22, 2015 the Employer provided its final reply denying Mr. Clarke’s grievance of October 28, 2014.

6. On April 29, 2015 the grievance was formally referred to arbitration by the Union.

6The Collective Agreement requires that grievances be referred to arbitration within fifteen (15) days (exclusive of weekends and holidays) following receipt of the Employer’s reply which was dated January 22, 2015. In the result, the Union itself was late referring the matter to arbitration by just over fifty (50) working days that is approximately ten (10) calendar weeks or two and one-half (2½) calendar months.

7By way of explanation union counsel, Mr. Jesse Gutman, advised that there had been a somewhat related union Policy grievance pending and which itself was referred to arbitration while the Grievor’s, by mistake, was not. Upon settlement of the Union Policy Grievance on or about April 23^rd, union representatives realized that Mr. Clarke’s had not been pursued to arbitration. This accounts for the April 29^th referral date.

8While settlement discussions are most often considered confidential, it is relevant to the matter before me that during the course of exchanges concerning the Union Policy Grievance there was included in an e-mail dated April 2, 2015 from the Employer representative to the Union the following comment:

We would also be looking for the MOS to cover both of the grievances related to Alan Clarke’s PCT position.

THE DECISION

9The Parties to the Collective Agreement before me have specifically agreed that the Grievance Settlement Board has jurisdiction to apply Section 48(16) of the Ontario Labour Relations Act to extend time limits set out in the Collective Agreement during both the grievance and arbitration processes. That provision in the Act grants jurisdiction to an arbitrator to extend the time limits in the Collective Agreement “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”.

10In the circumstances before me, I have not been advised that there is any specific prejudice to the Employer should I grant the extension here nor is it likely that an extension of something less than three (3) months would substantially prejudice the Employer in this case in any event.

11Accordingly, the issue to be determined is whether or not there are reasonable grounds to extend the fifteen (15) day time limit from early in February to the end of April of 2015. I emphasize that the issue is not whether or not the explanation advanced by the Union was reasonable but whether or not I am satisfied that there are reasonable grounds to extend those time limits. In assessing that issue the most often cited Award is that by arbitrator Burkett in Re Becker Milk Company and Teamsters Union, Local 647 (1978), , 19 L.A.C. (2d) 217 (Burkett). At page 220 of his Award arbitrator Burkett expressed his view of the application of that discretion (formerly identified in section 37(5)a of the Ontario Act) as follows:

The exercise of the equitable discretion vested in an arbitrator under s. 37(5)a of the Act requires consideration of at least three factors. These are (i) the reason for the delay given by the offending party; (ii) the length of the delay; (iii) the nature of the grievance. 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. In so far as Re Pamour Porcupine Mines Ltd. (Schumacher Division) and U.S.W. (1976), , 12 L.A.C. (2d) 122 (Dunn), stands for the proposition that the only factor to be considered is “the reasonabless of the excuse” for the delay, I respectfully disagree. The purpose of the section is to alleviate against technical bars. If the offending party has been negligent in its processing of the grievance but the delay has been of short duration an arbitrator would be permitted to rely on the short period of delay as constituting reasonable grounds for an extension. If the grievance involves the termination of an employee as distinct from some lesser form of discipline, this is also an equitable consideration which must be taken into account in deciding if there are reasonable grounds to extend the time-limits.

12Applying those criteria to the matter presently before me I find as follows:

1. The delay was not brief such as a couple of days or even a couple of weeks. Rather, the referral to arbitration was approximately 2 ½ months after the date it ought to have been dealt with. I view that delay standing alone as excessive against the requirements of the Collective Agreement.

2. Mr. Clarke was not responsible for the delay; rather, it was the Union that erred in processing the Union Policy Grievance to arbitration while omitting, perhaps inadvertently, that of Mr. Clarke.

3. While the issue on the merits relates to the Grievor’s layoff after his position had been surplused, the net effect was that the Grievor lost his job. Accordingly, while it is not technically a termination case, it is akin to a matter of that nature in that it had serious employment repercussions for Mr. Clarke.

4. As indicated earlier, there was no indication or evidence that the Employer would be substantially prejudiced by an extension.

13Taking all these elements into consideration it is my view that, on balance, the extension should be granted to allow the matter to proceed on the merits. Of the elements considered, it is my view that those weighing most heavily in favour of Mr. Clarke relate to the nature of the issue here which is akin to termination as well as the fact that the Grievor was not responsible for the delay in the referral to arbitration. Had the Grievor been responsible for the delay and/or if the delay had been more extensive such that the Employer might reasonably have assumed the grievance had been abandoned, the result might have been the dismissal of the grievance. However, that was not the case before me and I am satisfied instead that it is reasonable here to grant the extension.

14Accordingly, it is my Award that the Employer’s Motion to Dismiss the grievance as untimely does not succeed. I retain jurisdiction to deal with the matter on the merits. Any issues concerning productions and particulars as well as the scheduling of continuation will be dealt with in the ordinary course.