Ontario Public Service Employees Union (Nedai) v Ontario (Attorney General), 2016 OGSB minicounsel 84

GSB#2015-2063, 2015-2064, 2015-2065

UNION#2015-0526-0026, 2015-0526-0027, 2015-0526-0028

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Nedai)

Union

• and -

The Crown in Right of Ontario (Ministry of Attorney General)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Robin Lostracco Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Craig Mullins Treasury Board Secretariat Legal Services Branch Counsel

HEARING

July 28, 2016

Decision

1There are three grievances before this Board. Two were filed on May 30, 2013 alleging “continued harassment and discrimination” and “unjust sixteen-week notice” of the end of a fixed term contract. The third was filed on September 5, 2013 alleging that the grievor was improperly denied a job competition.

2It was agreed that these matters would proceed by way of Article 22.16 and accordingly, any decision rendered is without precedent or prejudice.

3The Employer brought forward a preliminary objection on our first day of hearing. To assist in the efficient litigation of this motion the parties agreed upon certain facts. Those agreed facts are:

• The Employer and the Union are parties to a collective agreement (the “Collective Agreement”). The Collective Agreement covers all employees outlined in Article 1.1, including regular and fixed-term employees.
• Mr. Ahmad (Jim) Nedai (“the Grievor”) was hired on October 10, 2007, on a fixed-term contract, as an Irregular/On-Call Courtroom Clerk at the 311 Jarvis St. courthouse in Toronto.
• The Grievor’s fixed-term contract was extended multiple times. He was transferred to various Court Clerk & Registrar categories at 311 Jarvis.
• As of April 30, 2013, the Grievor was acting in a Flexible Part-Time (“FPT”) 1500 Court Clerk & Registrar position at 311 Jarvis. This position was a permanent vacancy that the Employer intended to fill.
• On April 30, 2013, the Employer provided the Grievor with 16 weeks’ notice that his contract, expiring on August 30, 2013, would not be renewed.
• On May 29, 2013, the Employer posted a job advertisement for two permanent FPT 1500 Court Clerk & Registrar positions (including the position the Grievor had been acting in) as well as a temporary FPT Court Clerk & Registrar position.
• On May 30, 2013, the Grievor filed two grievances. In the first, he grieved that the Employer had “allowed continued harassment and discrimination against [him] which has created a poisoned/toxic workplace.” In the second, he grieved that the Employer had “without just cause given [him] 16 weeks of notice to end [his] contract.”
• The Grievor applied for the Court Clerk & Registrar job competition. On June 17, 2013, he interviewed for a position along with seven other candidates. The interview panel consisted of Bobby Kistow, Roman Haruk, and Oliana Palumbo.
• The Grievor was not successful in the competition.
• On August 1, 2013, a Formal Resolution Meeting was scheduled to discuss the Grievor’s two grievances of May 30, 2013. The Grievor did not attend the meeting. However, representatives from the Employer — Kyle Bichan (Designated Management Representative), Deborah Guild (Manager of Court Operations), Bobby Kistow (Supervisor), and Julie Aziz (Human Resources Advisor) — and the Union — Jim Jurens (OPSEU Local 526 President) — did meet and discuss the grievances. The Grievor was unaware of the meeting.
• On August 31, 2013, the Grievor’s fixed-term contract ended. On September 5, 2013, he filed a third grievance alleging that the job competition for the Court Clerk & Registrar positions was “improper” and in violation of various Collective Agreement provisions as well as the Human Rights Code.
• On December 3, 2013, a Formal Resolution Meeting was held to discuss all three of the Grievor’s grievances. In attendance were Deborah Guild, Pat McKinnon (Manager of Court Operations, OCH), Evelyn Ballaran-Nivens (Assistant Human Resources Advisor), Cassidy Davies (Human Resources Advisor), Ibrahim Boazi (OPSEU Local 526 Vice-President), Jim Jurens, and the grievor.
• At the meeting, the Grievor provided further details on his allegations of harassment. He alleged that his fixed-term contract was ended because two supervisors were harassing him and discriminating against him. The Grievor also alleged that the job competition for the Court Clerk & Registrar positions was flawed and that scoring was biased because one of the two supervisors that he had made allegations against was sitting on the interview panel.
• The Grievor agreed to file a WDHP complaint with respect to those allegations. The Employer agreed to hold the grievance in abeyance pending the WDHP complaint process. On December 19, 2013, the Grievor filed his WDHP complaint. The complaints were determined by the Employer to be outside the scope of the WDHP policy and were referred back to the then-Manager of Court Operations, Deborah Guild. The WDHP file was closed on January 6, 2014, and the Grievor was thereafter informed of the Employer’s out-of-scope assessment.
• On December 23, 2013, the Grievor was rehired on a fixed-term contract in an Irregular/On-Call Court Clerk & Registrar position at the 47 Sheppard Avenue East courthouse in Toronto. The Grievor is still in that position, with his current contract set to expire on September 3, 2016.
• On May 13, 2014, the parties held another Formal Resolution Meeting to discuss the Grievor’s grievances. In attendance were Brian Loewen (designated management representative), Deborah Guild, Cassidy Davies, Ibrahim Bozai and the Grievor. During this meeting, the Union made a settlement offer to the Employer. The Employer did not accept the offer at that time but the parties agreed to continue settlement discussions following the meeting.
• On May 14, 2014, the Employer’s representative Cassidy Davies wrote to the Union’s representative Ibrahim Bozai indicating that it would not accept the Union’s settlement offer. The Employer also made a counter-offer to the Union.
• On May 23, 2014, the Union indicated to the Employer that the Grievor was “not amenable to the proposed settlement” but that the Union would “consider other offers if they are suitable.”
• On June 3, 2014, the Employer returned to the Union with a new settlement offer.
• On June 5, 2014, the Union indicated that “[t]he grievor is not satisfied with this offer and would like the matter to proceed to the GSB.”
• That same day, the Employer responded that it would “advise the designee and have him issue his decision on the matter.”
• On July 15, 2014, the Union advised the Employer that it had not received the designee’s decision on the grievances. On July 16, 2014 Cassidy Davies advised she would look into the issue and get back to the Union.
• There is no record that Cassidy Davies followed up with the Union after July 16, 2014. There is no record that the Employer provided the Union with a letter from the designated management representative denying the grievance.
• The Grievor thought the Union had referred his grievances to arbitration. The Grievor inquired with the Union about the status of his grievances in or around September 2015. The local union representative mistakenly believed the grievances were in abeyance while the Grievor continued to accept fixed-term contracts and while awaiting a response from the employer designee.
• On September 10, 2015, Ibrahim Bozai wrote to Shazia Tarar, Human Resources Advisor, to advise that a designee decision letter had not been provided. On September 14, 2015, the Employer responded and confirmed that the Grievor’s rehiring in December 2013 was not pursuant to a settlement.
• On September 21, 2015, the Union referred the Grievor’s three grievances to the Grievance Settlement Board. The parties have agreed that the grievances proceed pursuant to Article 22.16 of the Collective Agreement. As per that article the grievances are being processed in an expedited manner and any decision shall have no precedential value.
• The parties have agreed this statement of facts is for the purposes of the employer’s motion regarding the timeliness of grievances filed and does not go to the merits of the case.
• Of the two supervisors against whom the Grievor made allegations of harassment and discrimination, one is now retired, while the supervisor who was a member of the interview panel of the job competition in dispute is currently assigned to the courthouse at 2201 Finch Avenue West in Toronto.
• Deborah Guild, who was the Manager of Court Operations for much of the timeline outlined above, and who took part in the December 3, 2013 and May 13, 2014 Formal Resolution Meetings and the May/June 2014 settlement discussions, retired effective August 1, 2015.

4The relevant provisions of the Collective Agreement and Ontario Labour Relations Act, 1995 are:

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 the 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 (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 she 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 (15) days 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 be withdrawn.

22.14.2 In Article 22, “days” shall include all days exclusive of Saturdays, Sundays and designated holidays.

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 Labour Relations Act to extend the timelines specified in the collective agreement at all stages of the grievance and arbitration processes.

Section 48 (16) of the Ontario Labour Relations Act, 1995 states:

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.

EMPLOYER SUBMISSIONS

5Mr. Mullins, for the Employer, began by reviewing the provisions of the Collective Agreement and relevant legislation. It was then conceded that there is no record that the grievor was ever sent a signed letter from the designated management person regarding the disposition of the grievances. However, according to Article 22.6.1 if there is no answer received the matter must be referred to arbitration within fifteen days.

6In the case at hand the parties engaged in a few meetings to discuss the disputes with the last meeting being held on May 13, 2014. At that meeting all three grievances were discussed and not resolved. However, they agreed to attempt to resolve the matters following that meeting. There was correspondence back and forth with various offers – all of which were rejected – between the parties. Finally, on June 5, 2014 the Union responds to the Employer that the matters remained unresolved and that it would refer the matters to the GSB.

7The Employer contended that the clock “began to tick” on June 5th, 2014. At some point in the fifteen days period following June 5, 2014, the notice for referral to arbitration should have been sent. The final day for referral was July 8, 2014 taking into account Saturdays, Sundays and paid holidays. However, the grievances were not referred to the Board until some fourteen months later on September 21, 2015.

8It was stated by the Employer that, according to the terms of the most recent Collective Agreement between these parties, this Board has the jurisdiction to extend the time limits of the grievance and arbitration procedure. However, it was urged that this discretion should not be exercised because there has been no reason proffered for the delay.

9Mr. Mullins reviewed the factors that are typically considered in determining whether to exercise discretion, namely, the reason for the delay; the length of the delay; and the nature of the grievance. While these factors were first set out in Re Becker Milk Company Ltd and Teamsters Union, Local 647 (1978), Source decision, 19 L.A.C. (2D) 217 (Burkett), they have been adopted and applied frequently by this Board.

10The Employer reviewed each of the factors in turn. It was asserted that the length of the delay – which is the most significant factor to take into account - is very substantial. While most of the Board’s decisions supporting this contention is regarding the grievance procedure, the consideration is the same for referral to arbitration. There is no real material difference.

11Regarding the reason for the delay, the Employer reviewed the agreed upon documents before this Board which reveal that after the Union determined it was going to proceed to the Board – noted in July of 2014 – there was nothing done until an inquiry made in September of 2015. While it may be that the grievor thought the matters had been referred to the Board, they were not. It may also be the case that the local Union representative thought the matters were being held in abeyance, but they were not. Irrespective of whether this non- referral was due to inadvertence or mistake, these are not compelling reasons for a delay of this significant length.

12Finally, the nature of the grievances are not such that they should cause this Board to extend the time limits. One grievance is regarding harassment, one about non-renewal of the fixed term contract and the final grievance considered a job competition. Irrespective of whether this Board finds these matters of import, that fact should be weighed against the significant time delay.

13Turning to the matter of prejudice, the Employer noted that in a case such as the matter at hand, a fifteen-month delay can – in and of itself – be considered prejudicial to the Employer. The Employer was led to believe that this matter was not proceeding; that its witnesses did not need to be interviewed or prepared because there was no longer any live issues to weigh on their minds.

14The Employer relied upon Re OPSEU (St. Jean) and Ministry of Community Safety and Correctional Services (2004), GSB #2001-1122, (Leighton); Re OPSEU (Kavanaugh) and Ministry of Community and Social Services, (2009), GSB #2007-0136 (Harris); Re OPSEU (Smith et al) & Ministry of Community and Social Services (2008), GSB#2006-2107 (Gray); Re OLBEU & Liquor Control Board of Ontario (1998), GSB#2216/97 (Knopf); Re OPSEU (Berday) and Ministry of Transportation (2008), GSB#2007-3132 (Devins); Re OPSEU (Ng) and Ministry of Government Services (2010), GSB#2009-3379 (Mikus); Re OPSEU (Faulkner) and Ministry of Community Safety and Correctional Services (2008), GSB#2006-2093 (Petryshen); Re OPSEU (Szabo) and Ontario Realty Corporation (2001), GSB#1811/98 (Herlich); Re OLBEU (Gamble) and Liquor Control Board of Ontario (1998), GSB#1635/96 (Gray); Re OPSEU (Mroz) and Ministry of Community Safety and Correctional Services (2012), PSGB# P-2010-2013 (O’Neil); and Re Dufferin Peel Catholic District School Board and OECTA [2012] O.L.A.A No. 516 (Chauvin).

15In conclusion, the Employer urged that all three grievances should be dismissed.

UNION SUBMISSIONS

16Ms. Lostracco, for the Union, submitted that this is precisely the type of case where the Board should exercise its discretion to extend the time lines. While the Union agreed that the factors as set out in Re Becker Milk (supra) should be taken into account it had a different view as to what determinations should be drawn from those factors.

17It was urged by the Union that the most significant consideration for this Board is the nature of the grievances. In this case there are significant issues in dispute, namely, harassment and discrimination; the termination of an employment contract; and failure to award a job competition held for a permanent full time position. There can be no doubt that these issues go to the very ongoing employment of the grievor.

18A review of the jurisprudence, contended the Union, reveals that when the issue in dispute goes to the heart of the employment relationship, time limits are frequently extended.

19The Union disagreed with the Employer’s view that the grievances were referred to the Board fourteen months late. It was suggested that once weekends and holidays are taken into account, the delay was probably closer to twelve months.

20This matter is unlike many that come before this Board, according to the Union, because this is not a delay at the initial filing but at the end of the grievance procedure. As set out in Re Greater Niagara General Hospital and ONA (1981), Source decision, 1 L.A.C. (3d) 1 (Schiff), the Board should take into account factors other than those set out in Re Becker Milk (supra), such as when the delay occurred, whether the grievor was responsible for the delay and if the Employer could have assumed the dispute was over. In this case, there were a number of meetings with ongoing discussion so the Employer had ample opportunity to gather whatever evidence was necessary for litigation.

21According to the Union, the grievor in this matter was not responsible for the delay. He was under the impression that the matter had been referred to the Board. This was a genuine mistake of the Union representative who believed that a response from the Employer was due prior to the referral to the Board. This is not surprising given that the parties had participated in ongoing discussions. There is no bad faith in this matter, mere inadvertence.

22In conclusion the Union stated that given the nature of the grievances, the good reasons for the delay and lack of prejudice to the Employer, the preliminary motion should be dismissed.

23The Union relied upon Re OPSEU (Clarke) and Ontario Clean Water Agency (2016), GSB#2015-0599 (Carrier); Re Greater Niagara General Hospital and ONA (1981), Source decision, 1 L.A.C. (3d) 1 (Schiff); Re Saint-Gorbain Technical Fabrics Canada Ltd. & Unite (2005), 83 C.L.A.S. (181) (Chapman); and Re OPSEU (Stone) and Ontario Clean Water Agency (2001), GSB#1111/99 (Johnston).

EMPLOYER REPLY SUBMISSIONS

24Mr. Mullins acknowledged that Re GNGH (supra) expanded upon some of the factors for this Board to consider, but it does not override the fundamentals set out in Re Becker Milk (supra). It was urged that the Union’s rationale for the delay – whether inadvertence or deliberate – is insufficient. Further, the fact that the delay was not caused by the grievor is not enough for this Board to look past the significant period of time that elapsed before the grievances were referred to the Board. Indeed, errors involving failure to refer a matter to arbitration in time will rarely be caused by grievors. In any event, given the length of the delay the grievor must take some of the responsibility for not following up to ensure that his matters were proceeding in accordance with the appropriate process.

25Inadvertence – that is an error that is not deliberate – does not forgive the need for a sophisticated party like this Union to undertake due diligence. Accordingly, the fact that this delay is not a matter of bad faith is not determinative according to the Employer.

26The Employer took issue with the Union’s view that because meetings were held after the filing of the grievances there was some information sharing and therefore the Employer cannot claim prejudice. The mere fact that meetings were held does not mean that the Employer does not suffer prejudice after the many months pass and it learns the grievances have been referred to the Board.

27Finally, the Employer underscored that there has been no agreement in this case to extend the time limits irrespective of what a Union steward may have thought. There is nothing in the documents exchanged by the parties at the time of the meetings that suggest such an agreement.

DECISION

28Given that the parties have agreed to utilize Article 22.16 it is not my intention to undertake lengthy reasons or a fulsome arbitral review. However, I have thoroughly reviewed the agreed facts, submissions of the parties and the case law provided. That exercise has led to the inevitable conclusion that the Employer’s motion must succeed.

29Irrespective other whether the time delay in this matter is twelve months or fourteen months, a very significant amount of time passed after the final meetings held to discuss these disputes and the Union informing the Employer that the matters would be referred to the GSB.

30The Employer implored this Board to adopt the view set out at paragraphs 16 and 17 of Re OPSEU (Smith et al) (supra). It was said:

Absolutely no explanation or reason for the delay has been given by the grievors. Leaving aside how credible or persuasive such claims might have been, there is no claim that the grievors did not know at the employment was governed by a collective agreement, or that any rights they may have under that collective agreement are enforced, if at all, through the grievance and arbitration process, or that after an initial step that process requires the filing of a written grievance “through the Union”, or that there are time limits for taking steps in that regard. The grievors must be presumed to have known all these things. They did not act with due diligence.

As I have already noted, on the view most favorable to the grievors the delay is about three months beyond the already ample time frame provided by the collective agreement for bring a complaint to the grievance process. This is a substantial delay. A bar based on such a delay could not be described as merely “technical.”

31I accept the view of Vice Chair Gray as set out above and I am of the view that the delay in the case before this Board is also a very far distance from “merely technical.” The issue to consider is whether an application of the factors set out in Re Becker Milk (supra) and Re GNGH (supra) outweighs this substantial delay.

32I also agree with Vice Chair Johnston, as set out in Re OPSEU (Stone) (supra), that “the label applied to the grievance is not as important as an assessment of the circumstances that the grievor seeks to question and the consequences that flow from those circumstances.” In the case at hand, like Re Stone (supra), the grievance is not a discharge matter, as such. One of the grievances is regarding an alleged failure to grant a full time job competition with the consequences – given that the grievor is a fixed term employee – that his contract might end without future employment with this Employer. Accordingly, the nature of this grievance is a matter of import.

33The Union asked this Board to extend the time limits because, according to the agreed facts, the grievor thought the matter had been referred to the Board and because the local Union representative thought that the grievances were being held in abeyance. I cannot accept either of those “reasons” for the delay. First, the grievor could have (and arguably should have) checked sooner as to the status of his grievances. Further, I agree with the Employer that a non-referral to the Board would virtually never be caused by a grievor and therefore this fact cannot be considered as rationale for delay. Second, the agreed facts do not substantiate that the local Union representative thought this matter was being held in abeyance. Indeed, there was correspondence from the local Union to the Employer that the grievor had given instructions to proceed to the Board. If he thought the matter was being held in abeyance there would have been no need to make that announcement.

34If the nature of the grievance was the only matter to consider, my decision might be different. Indeed, if the length of this delay was a matter of weeks - as was the case in Re OPSEU (Stone) (supra) - and not in excess of a year, my decision might have been different. However, given the substantial length of the delay and the insufficiency of the reasons proffered for the delay – as set out in the agreed facts - I must uphold the Employer’s preliminary objection and dismiss the grievances.