GSB#2014-1093, 2014-2928, 2014-2929, 2014-4685

UNION#2014-0230-0010, 2014-0230-0045, 2014-0230-0046, 2011-0230-0017

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Morissette)

Union

• and -

The Crown in Right of Ontario

(Ministry of Transportation)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Christopher Bryden

Ryder Wright Blair & Holmes LLP

Counsel

FOR THE EMPLOYER

Lisa Compagnone

Treasury Board Secretariat

Legal Services Branch

Counsel

HEARING

October 20, 21, December 2, 2016;

April 19 and May 4, 2017

Decision

1The Ministry of Transportation has filed a motion to dismiss this grievance, because the grievance was not referred to arbitration in a timely manner. The grievance was filed on November 11, 2011, and it was referred to arbitration on February 27, 2015. Nevertheless, the Union contends that the grievance is arbitrable on four grounds. First, the union submits that there was an agreement between the parties to postpone the Stage 2 meeting indefinitely. Second, it asserts that there was an established practice between the parties to hold Stage 2 meetings in abeyance when an employee was off for an extended time on sick leave. Third, it asserts that the Employer waived its right to rely on the time limit for referral to arbitration. Finally, it asserts that this Board should exercise its jurisdiction under Article 48 (16) of the Labour Relations Act to extend the time for the Stage 2 meeting. The Employer asserts that the Union’s arguments are without merit, and the grievance should be dismissed.

Facts

2On November 11, 2011, the Grievor, Carole Morissette, filed a grievance alleging that she had been subject to a poisoned work environment, harassment, discrimination, and reprisals in violation of the collective agreement and the Ontario Human Rights Code. At the time of her grievance, she was off work on sick leave.

3On November 21, 2011, OPSEU Staff Representative Kerry Gennings, submitted the grievance to the Ministry “for appropriate processing to the second stage of the grievance procedure.” The letter asked the Ministry to contact him “directly regarding the scheduling of the second stage meeting…” It was received by the Ministry on November 22, 2011.

4On December 9, 2011, Jennifer Pierce, in Human Resources, sent an email to Mr. Gennings requesting an extension of the time limits. The email states:

Hi Kerry,

In follow up to the grievance received from Carole Morissette on November 22nd, 2011. As this is peak winter vacation/holiday time and due to the availability of all parties, we are having difficulty scheduling a date within the time limits. At this time, I would like to request an extension of the time limits.

Please advise via return email if you agree to the extension.

About an hour later, Mr. Gennings replied:

Hi Jennifer:

Yes, an extension of the time limits is granted. Do you have a projected time frame to schedule this grievance?

Thanks.

5Later the same day, December 9, 2011, Ms. Pierce responded: “Hello again – yes, we are thinking approximately the 2nd week of January Before the end of December, I can commit to giving you a specific date. Thank you.”

6Mr. Gennings and Ms. Pierce were also discussing a grievance filed by the Grievor’s husband, Mitch Morissette, on December 9, 2011. Earlier in the day, they agreed to hold Mr. Morissette’s Stage 2 meeting on December 19, and Mr. Gennings advised that he was available and copied Mr. Morissette. A short time later, Mr. Morissette, sent an email to Mr. Gennings, stating: “Due to my medical leave I will be unable to attend; these meetings will need to be rescheduled upon my return to work. Thanks.” Mr. Gennings then sent an email to Ms. Pierce, attaching Mr. Morissette’s note to him, stating:

I have received the email message below from Mitch Morissette indicating that he is unable to attend the scheduled grievance hearing on Dec. 19th. He wishes the step 2 hearing to be re-scheduled pending his return to work. Therefore could we agree to extend the time limits? Please confirm your receipt of this message. Thanks.

7Five minutes later, concerning the Grievor, Mr. Gennings wrote back: “Hi Jennifer: A similar postponement may also need to be considered regarding the scheduling of Carole Morissette’s step 2 since I understand that she is also off on STIP. However she has not raised this with me.” There is no evidence that Ms. Morissette ever did raise that issue with Mr. Gennings. On the contrary, she seemed very interested in moving her grievance forward.

8On December 20, 2011, Ms. Pierce sent an email to Mr. Gennings with a date in January for the Stage 2 meeting. It states:

Hi Kerry – as I committed to, I do have a date option for Ms. Morissette’s grievance.

Does January 12th at 10:00 am work for you and Carole for a Step 2 meeting. We are able to meeting in Waterloo at 500 Weber Street.

If that works for you and the grievor it is our intention to hold a pre-disciplinary meeting for Carole following a break after the Stage 2 meeting.

Please let me know if this works and we can make further arrangements.

9Later that afternoon, Mr. Gennings advised that he was unavailable on the January 12, 2012 date, stating:

Hi Jennifer:

I am unable to attend a meeting on January 12th due to another commitment on that date. However, I will consult with Ms. Morissette to see if she is prepared to attend any meeting at this time since she is currently off on sick leave. I will get back to you with her answer.

10There is no evidence that Mr. Gennings did get back to the Employer with Ms. Morissette’s answer concerning her ability/willingness to attend a Stage 2 meeting while she was off on sick leave.

11On February 27, 2012, Ms. Morissette sent an email to Mr. Gennings, asking: “Any update, I’m still waiting for information as to when this is going to proceed. Thanks.”

The following day, Mr. Gennings wrote back:

Hi Carole:

This has not proceeded because you are off work on STD. Normally grievances are held in abeyance while a grievor is off on sick leave and therefore a grievance [meeting] has not been scheduled. If you are able to deal with this then I need an instruction from you that you want this scheduled even before you return to work. Having said that, I am retiring at the end of this week and won’t be able to scheduled anything in the meantime. Therefore if you want this to continue to be scheduled, I will put your instruction in the file for whoever replaces me.

12Mr. Gennings testified, on examination-in-chief, that he believed that the Stage 2 meeting for the November 2011 grievance was on hold pending the grievor’s availability to return to work. He testified that there was a “common practice”, based on agreement with respective Ministry, to postpone the Stage 2 meeting if the individual is off work due to health reasons. He was asked, on examination-in-chief, if the initial agreement to postpone the Stage 2 meeting in this case (from Ms. Pierce’s December 9, 2011 request) had ever been rescinded, and he answered that it had not.

13On cross-examination, and after a detailed review of the emails, he acknowledged that he had not obtained an agreement with the Employer to postpone indefinitely the Grievor’s Stage 2 meeting. He acknowledged that there was not a consistent practice to hold a grievance in abeyance, and that if a grievor wanted to have a Stage 2, even though off work, one would be held. He stated that he did not recall what happened after his December 20, 2011 email to Ms. Pierce, as it was “five years ago.”

14Mr. Gennings, as the OPSEU Staff Representative, was responsible for 17 locals, with between 2000 to 3000 members. He estimated that, at any given time, he had in excess of 50 grievances on the go.

15On April 9, 2012, Ms. Morissette wrote to OPSEU Regional Secretary Gwen Merritt, stating, “I have not heard from anyone at OPSEU…” She attached her November 2011 grievance, and asked, “[p]lease advise who will be dealing with this and any time frame for scheduling. Awaiting a response.”

16On May 28, 2012, the grievor followed up again, stating: “Still awaiting a response on the information requested as I am off work and unable to return to work without a resolution. I feel this should be a priority. Thanks.”

17The following day, May 29, Ms. Merritt wrote back: “Hi there Carole. As we discussed and agreed on that when the new rep was assigned I would pass this information on. We do now have a new rep and her name is Sabrina DeGirolamo. Sabrina is out of the office today, however I will put your file on her desk and she will get in touch with you.”

18On June 1, 2012, the grievor asked Ms. Merritt for Ms. DeGirolamo’s email address, and Ms. Merritt provided it.

19On June 5, 2012, the grievor wrote to Ms. DeGirolamo. The email states:

Hello Sabrina,

My name is Carole Morissette and Gwen informed me that she put my file on your desk last Tuesday. As noted in the previous emails there was supposed to be some action on this grievance in the late winter. I was just inquiring as the status and why I have not been informed of the date for the second stage.

20The following day, June 6, 2012, Ms. DeGirolamo wrote back, asking her to meet the following Tuesday. That meeting was later rescheduled to June 21, and then to June 28, although Ms. DeGirolamo and the grievor had a number of conversations in between. Given the substantial amount of information involved, Ms. DeGirolamo asked the grievor to write summaries of what had occurred.

21On June 28, 2012, in the morning, Ms. DeGirolamo wrote to the grievor: “[l]et me know when you get the summaries completed, so an appointment can be scheduled with me to discuss. I will schedule the stage 2 meeting once we have had a chance to discuss the summaries.”

22It appears that the grievor did not complete the summaries, and the matter lay dormant until early February 2015. In the interim, however, even though the grievor remained off work, Ms. DeGirolamo filed a number of other grievances on her behalf. For these grievances, Ms. DeGirolamo asked the Ministry to waive the Stage 2 hearing, and which she submitted directly to the GSB for arbitration. She testified that she did so to avoid any timeliness issues.

23Two other grievances filed by the grievor were set for arbitration on February 27, 2015. In preparation for that hearing, a question arose about the status of the November 2011 grievance. OPSEU Grievance Officer Lesley Gilchrist subsequently called Ms. DeGirolamo to inquire as to the status of the November 2011 grievance, as it had not been referred to arbitration.

24Ms. DeGirolamo testified that she was “shocked” and “stunned” that the grievance had not been referred. She had assumed, because the grievor had been off on sick leave, that the Stage 2 had been postponed and that all time lines had been met. She had not looked at the file since June 2012, and was upset to learn, in February 2015, that the grievance had not been referred to arbitration. She acknowledged that her February 28, 2012 email told the grievor that she “will schedule the stage 2 meeting once we have had a chance to discuss the summaries”, but said it was not uncommon to have a Stage 2 meeting after a grievance had been referred.

25Ms. DeGirolamo testified that she had reviewed the file when she took over for Mr. Gennings, and believed that the Stage 2 had been deferred because the grievor had been off on sick leave. She did not carefully review the emails in the file, as occurred on cross-examination at the arbitration hearing – “not in the detail.” She had understood that it was the practice in that Region to defer the Stage 2 if the individual was off on sick leave, and assumed that is what occurred in this matter. She acknowledged, on cross-examination, that there was no document, email or note to file, where the Employer had agreed to waive the Stage 2 meeting in this case, or to indefinitely postpone it, as occurred with other grievances that she had processed on the grievor’s behalf. She acknowledged that there is a difference between an agreement to hold off on the Stage 2 and an agreement to waive it.

26On February 24, 2015, Ms. DeGirolamo requested OPSEU to refer the grievance to arbitration. Later the same day, she contacted Theo Mastorakos, Regional Manager, West Region, about the November 2011 grievance. She contacted him because he was her first “point of contact’ with the Ministry. She asked him to call her, and he did.

27She subsequently wrote an email to Ms. Gilchrist about her conversation. It states:

Hi Leslie,

I spoke to Theo and confirmed that the November 15, 2011 grievance was held in abeyance because Carole Morissette was off sick and has not returned to work since then. As a result, the Employer will not be calling timelines. I have informed the Employer that the November 15, 2011 grievance has now been referred to arbitration. Again, he confirmed that the Employer will not be raising any objections.

28As this was an internal email, Mr. Mastorakos was not copied on this email. Nor did Ms. DeGirolamo send him a confirming email in regard to their conversation, as was her usual practice. In hindsight, she testified at the hearing that she should have done so. She testified that she stated, in the email, that the November 2011 grievance “was held in abeyance because Carole Morissette was off sick and has not returned to work since then” based on her assumption that was the case. She acknowledged that Mr. Mastorakos did not agree that the Stage 2 had been held in abeyance, but insisted that he did agree that the Ministry would not be asserting time limit objections.

29Ms. DeGirolamo testified that the purpose of that call was to advise Mr. Mastorakos that she would be referring the 2011 grievance to arbitration and to establish that the employer would not object based on timeliness. She advised him that the grievance had been held in abeyance because the grievor had been off work, and inquired if he would be objecting to the timelines. On cross-examination, she acknowledged that she could not recall their exact conversation and was relying on her email to Ms. Gilchrist. She had no independent recollection of the conversation, but testified that the reason for her call was to establish that the employer had no issue in regard to timelines. Although she did not currently recall his “exact words”, that was the “gist of it.” She denied that she misled Mr. Mastorakos.

30Mr. Mastorakos had no recollection of this discussion. It was “relatively common” for her to ask him to call her, as it was “her way to get my attention”. He stated that she was “very diligent” about following up their discussions with a written email. He had no recollection of speaking to her about the timelines for the referral of this grievance or raising objections regarding the referral. He stated: “In 20 years, I’ve never dealt with waiving of objections.” He was not directly involved in the emails between Mr. Gennings and Ms. Pierce in 2011 and early 2012 about the Stage 2, but he stated that he was “kept informed, peripherally, about the status/progress of any grievance.” He had no direct knowledge of this grievance, although he was aware no Stage 2 had been held. Although he has labour relations experience, he did not have the “technical knowledge” about the Employer’s ability to challenge timelines. He testified that when he receives a request to waive Stage 2 meetings, he consults with Human Resources. He did not recall whether he did so here.

31After reading Ms. DeGirolamo’s email to Lesley Gilchrist, Mr. Mastorakos still did not recall their conversation. His understanding of it was that the Employer would not challenge the “stale dating” of the grievance, but again, he lacked the “technical knowledge” concerning the grievance procedure in relation to time limits.

32When told that Mr. Mastorakos would testify that he did not recall their conversation, Ms. DeGirolamo testified that her email to Ms. Gilchrist reflects the conversation that she had with Mr. Mastorakos.

33There is also a hand-written note at the bottom of the page which contained the February 24, 2015 email from Ms. DeGirolamo to Ms. Gilchrist, dated the same day which says:

Spoke to Gib M. He too confirmed that the grievance was held in abeyance b/c Carole was on sick leave.

Was able to speak to Gil b/c he came into office 2/24/15.

34“Gib M.” is Gib McIlwraith, who served as President of the Local from xx to xx. He was not involved in the handling of the Grievor’s November 2011 grievance. He testified that there was a practice of deferring Stage 2 meetings in the Local if the grievor was off sick, but it was not uniform and depended on the individual grievor’s wishes. He had no recollection of speaking to anyone at OPSEU about the November 2011 grievance after Mr. Gennings’ retirement, and did not recall who replaced him. Ms. DeGirolamo testified that she recalled having this conversation with Mr. McIlwraith.

35The November 2011 grievance was referred to the GSB on February 27, 2015. It is not entirely clear when the Employer first objected to the timeliness of the grievance, but no argument has been raised that the Employer accepted a “fresh step” in the arbitration process and consequently waived the right to object on that basis. The Union’s assertion of waiver is based on the telephone discussion between Ms. DeGirolamo and Mr. Mastorakos on February 24, 2015.

36Some time in either late 2015 or early 2016, the Union provided particulars of the November 2011 grievance. It details discussions and events beginning in June 2010 through October 2011, and interactions with at least one person who, based on the particulars, is no longer with the Ministry.

37It should also be noted that in 2007, Ms. Morissette filed a grievance when she worked for a different Ministry, which the Union referred to arbitration in 2010 without any objection being raised.

Reasons for Decision

38It is common ground between the parties that the GSB has no jurisdiction, under the 2009-2012 collective agreement to extend the time lines for referral of a grievance to the GSB. Re OPSEU (Arista) and Ontario (Ministry of Finance), GSB No. 2013-1225 (Petryshen, 2014); Re OPSEU (Nitsotolis) and Ontario (Ministry of Government Services), GSB No 2012-1337 et al. (Nairn, 2013). The relevant provisions are contained in Article 22 of the collective agreement, as follows:

ARTICLE 22 – GRIEVANCE PROCEDURE

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 tis Agreement, including any question as to whether a matter is arbitrable.

STAGE TWO

22.3.1 If the complaint or difference is not resolved under Stage One, the employee may file a grievance, in writing, through the Union, with their immediate supervisor who will in turn forward the grievance to the senior human resources representative for the ministry of his or her designee.

22.3.1 The senior human resources representative or his or her designee 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.

22.4 If the grievor is not satisfied with the decision of the senior human resources representative or his or her designee 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 (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 GENERAL

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 Agreement.

39As set out at the beginning of this Award, the Union asserts four bases that this grievance should not be dismissed, despite the fact that the referral to the GSB occurred more than three years after it was filed. Each one will be considered individually.

1. Was there an agreement between the parties to postpone the Stage 2 meeting indefinitely?

40The Union argues that the December 2011 emails establish that there was an agreement between the parties to postpone the Stage 2 meeting indefinitely because that agreement was never rescinded. With respect, I am not persuaded that is the case.

41The emails between Mr. Gennings, for the Union, and Ms. Pierce, for the Ministry, reflect a short-term agreement to postpone the Stage 2. The initial request, from Ms. Pierce, was for a postponement due to the upcoming Christmas holidays. Mr. Gennings consented to that request, but in the same email, asked if she had “a projected time frame to schedule this grievance?” She immediately responded, “yes we are thinking approximately the 2nd week of January” and promised that “[b]efore the end of December, I can commit to giving you a specific date.” In addition, Mr. Gennings, after advising Ms. Pierce that the Stage 2 meetings for Mitch Morissette’s grievances would have to be deferred until his return to work, advised her that “[a] similar postponement may also need to be considered regarding the scheduling of Carole Morissette’s step 2 since I understand that she is also off on STIP. However she has not raised this with me.”

42This email exchange clearly indicates that the agreement to postpone the Step 2 concerning the grievor’s November 2011 grievance was not an open-ended, unqualified extension, but a brief extension. The Union was actively pursuing a Step 2 meeting date. Mr. Gennings raised the possibility that a more indefinite extension might be required, but he did not ask for one. The record contains numerous examples where an open-ended request has been made by the Union and the Employer consented. The emails in this case are quite different.

43The subsequent emails further confirm this. On December 20, 2011, Ms. Pierce wrote back to Mr. Gennings offering January 12, 2012 for the Step 2 meeting, “[i]f that works for you and the grievor…” Unfortunately, that date did not work for Mr. Gennings due to a prior commitment, but he advised the Ministry that he “will consult with Ms. Morissette to see if she is prepared to attend any meeting at this time since she is currently off on sick leave.” He committed to “get back to you with her answer.” That is where the email exchange ends. There is no evidence that Mr. Gennings responded back to the Ministry.

44To accept the Union’s argument that the initial agreement continued indefinitely because it was never specifically rescinded would require me to ignore the context of the email exchange. What Ms. Pierce requested and what Mr. Gennings agreed to was a temporary postponement, not an indefinite one. The possibility of an indefinite postponement was raised but not specifically requested, and there is no evidence that the Ministry agreed to an indefinite postponement.

45These facts distinguish Re Corporation of the City of Kanata and CUPE, Local 2753 (Kritsch Grievance), 1999 CanLII 35908 (ON LA), 1999 CarswellOnt 3280, 79 L.A.C. (4th) 204(Brown), relied on by the Union. There, the parties had an “understanding” that the grievance process would be held in abeyance pending the outcome of the employer’s investigation. The Union was not diligent in pursuing the status of the investigation and the employer considered that the grievance had been abandoned. A few months later, when the Union did pursue the grievance, the employer advised that the grievance was denied because it fell outside the time limits of the collective agreement, but did not advise that their “understanding” had come to an end and the time limits for referral would begin to run. Several months later, the Union referred the grievance to arbitration. The arbitrator concluded at par. 61: “Since the understanding was never addressed or taken into consideration and since the Union was never advised that it had come to an end, the ‘understanding’ agreement continued until the grievance was ultimately advanced to arbitration.”

46Here, in contrast, the agreement to postpone the Stage 2 meeting was not open-ended. The “ball”, in terms of an indefinite extension, was actually in the Union’s court as of Mr. Gennings’ December 20, 2011 email. There was no obligation, under these circumstances, for the Employer to advise the Union that their original agreement to postpone the Stage 2 meeting had come to an end.

2. Was there an established past practice to hold Stage 2 meetings in abeyance when a grievor was off on sick leave?

47The evidence establishes that there was a common practice, in this local and Ministry, to hold the Stage 2 meeting in abeyance while an employee was away from work on sick leave. But it was not universal or automatic, and an agreement still had to be obtained. This was the evidence of Mr. Gennings, Mr. McIwraith and Mr. Mastorakos.

48It is also a requirement imposed by the collective agreement to obtain such an agreement in writing. Under Article 22.14.3, “[t]he time limits contained in Article 22 may extended by agreement of the parties in writing.” (emphasis added). Under this language, it would appear that a practice, or oral understanding, is not enough. But even if it could be sufficient, all of the witnesses involved at the time in 2011, testified that it depended on the grievor’s wishes. Instructions had to be obtained from the grievor.

49That is evident from Mr. Gennings December 2011 email exchange with Ms. Pierce. He raised the possibility of an indefinite postponement but he had to seek instructions from Ms. Morissette. The Ministry argues that had there been an established practice to hold Stage 2 meetings in abeyance while an employee was off on sick leave, there would be no reason for Mr. Gennings to raise the possibility with the Ministry, and no reason to seek instructions from the grievor. I agree. As Mr. Mastorakos testified, in cross-examination, the Union “typically” requested such an extension and the Ministry “typically” agreed, but it depended on the individual grievor.

50The facts here show, however, that Ms. Morissette was interested, at least for a period of time, in having her grievance proceed, despite her being off work on sick leave. That is evident from her follow-up email to Mr. Gennings on February 27, 2012. Mr. Gennings responded the following day, and advised her that the matter had not proceeded “because you are off work on STD” which was the normal practice. He also stated that “[i[f you are able to deal with this then I need an instruction from you that you want this scheduled even before you return to work.” He then advised her that he was retiring at the end of the week, and would refer the matter to his successor. There is no evidence that the grievor followed up with instructions, but she did make subsequent inquiries with OPSEU concerning the status of her grievance.

51When Ms. DeGirolamo replaced Mr. Gennings, in May 2012, this issue had not been flagged for her, and she assumed that the common practice of holding the grievance is abeyance applied.

52Under the specific facts here, and the requirement of Article 22.14.3, I am not persuaded that the parties had a consistent, binding practice of holding every grievance in abeyance if the grievor was off on sick leave. It was a common practice, but it depended on the individual grievor’s instructions. In addition, as noted, there was no written agreement between the parties to hold the 2011 grievance in abeyance.

3. Did the Ministry waive its right to object to the late referral of this grievance to arbitration?

53Under GSB case law, the employer may waive an objection to an untimely referral to arbitration. Re OPSEU (Moody) and Ontario (Ministry of Children & Youth Services), 2012 CarswellOnt 6631, GSB No. 2010-2436 (Abramsky). The question is whether the conversation between Mr. Mastorakos and Ms. DeGirolamo on February 24, 2015 constitutes a waiver.

54The first issue to determine is what was said during the February 24, 2015 conversation between Mr. Mastorakos and Ms. DeGirolamo. Neither one had a clear recollection of the discussion, although Ms. DeGirolamo appeared to remember the “gist” of it, whereas Mr. Mastorakos did not recall the conversation at all. She certainly remembered the reason she called him on that date. She was anxious about the November 2011 grievance, which she had just learned had not been referred to arbitration as she had assumed. The purpose of the conversation was to determine whether the Employer would object to the referral of the grievance to arbitration. The stakes, for the Union and the grievor, were high. An objection by the Employer would raise a significant issue in terms of arbitrability.

55It appears to me that the relatively contemporaneous email Ms. DeGirolamo sent to Ms. Gilchrist after the telephone call is a reliable summary of the call, at least as Ms. DeGirolamo understood it. I find it more likely than not that Ms. DeGirolamo would not have written that email to Ms. Gilchrist if the conversation did not occur that way. She could not have anticipated that the content of their discussion would be the subject of a GSB hearing more than two years later, or that Mr. Mastorakos would not recall their discussion. There is also no reason for her to have fabricated the content of the email. Had Mr. Mastorakos objected to the referral, Ms. Gilchrist would have to be told about it so she would not be caught by surprise on the issue at a later date. Further, any error in the processing of the grievance would not lie with Ms. DeGirolamo as she was not the Staff Representative on the file at the relevant time. Consequently, under the facts, I find that the relatively contemporaneous email sent to Ms. Gilchrist is more likely than not an accurate reflection of the discussion on February 24, 2015.

56Based on the email, Ms. DeGirolamo told Mr. Mastorakos that the November 2011 grievance had been held in abeyance while the grievor had been off sick. She also advised him that she would be referring (or had referred) this grievance to arbitration, and Mr. Mastorakos advised that the Ministry would not be objecting.

57Under GSB case law, the test for establishing waiver is an “objective” test, not a subjective one. Re Amalgamated Transit Union, Local 1587 and Ontario (Metrolinx-GO Transit), GSB No. 2010-2210(Dissanayake), cited in Re OPSEU (Moody), supra, at par. 47. In the Metrolinx-GO Transit case, there was no evidence that the Employer advised the Union that it was waiving time limits; there was only evidence that it had explicitly agreed to do so for a period of time. At issue was whether the employer’s subsequent conduct in relation to the grievance waived its right to object. The Board stated at par. 28:

[I]t is not enough for an employer to state that it did not subjectively intend to forego its right to object. The test has to be objective, that is, was it reasonable for the Union, in all of the circumstances, to conclude that the Employer would not be objecting on the basis of time limits. If the Employer had conducted itself in a manner as would realistically lead to such a conclusion, then the inference to waive time limits would be inferred.

58This test, I find, is the appropriate test to apply here. The Employer asserts that Mr. Mastorakos did not have knowledge of the history of the grievance as he was not involved in the 2011 email chain between Mr. Gennings and Ms. Pierce. It submits that Ms. DeGirolamo told him that the grievance had been held in abeyance while the Grievor was off work, which was not accurate. Nor did he know the “technical aspects” of the grievance process in terms of the timelines for referral to arbitration. It submits that Mr. Mastorakos did not have requisite knowledge of the Ministry’s right to object to the referral and did not intend to waive any right to do so.

59The Ministry cites to Re OPSEU (Pedneault) and Ontario (Liquor Control Board of Ontario), GSB No. 1569/98 (Briggs), where the Vice-Chair declined to find that a grievor waived his right to union representation, even though the grievor was a sophisticated member of the bargaining unit who had grieved in the past and knew his rights under the collective agreement yet attended a meeting with management without union representation. It further relies on Brown and Beatty, Canadian Labour Arbitration at 2:3130, that to be operative, “waiver will generally require both knowledge of and an intention to forego the exercise of such a right.” The Employer submits that Mr. Mastorakos’ management experience does not equate to legal knowledge of referral time limits.

60If the test for waiver were subjective, the Employer’s argument would have more force. But the test is an objective one, and on an objective basis, I find that it was reasonable for the Union, in all of the circumstances, to conclude that the Employer would not be objecting to the referral of the 2011 grievance to arbitration on the basis of time limits. The discussion on February 24, 2015 was to inform the Employer that the Union would be referring (or had referred) the grievance to arbitration, and I find that Mr. Mastorakos indicated that the Employer would not object. The delay in referring the grievance was apparent by the 2011 date of the grievance. He may not have known the specific history of the grievance, but he would know that a 2011 grievance being referred to arbitration in 2015 is quite unusual, and that the Ministry might have some defense in regard to timeliness it could raise. He could have deferred a response and consulted with Human Resources, but it appears he did not. He responded that the Employer would not raise a timeliness objection.

61Mr. Mastorakos, as the Regional Manager, Western Region, had the authority to act for the Employer in this regard. He was the point of contact for the Union in regard to grievances. Mr. Mastorakos made many agreements with the Union in terms of waiving Stage 2 meetings, in regard to other grievances filed by Ms. Morissette. He was aware, generally, that time limits could be a basis for the Employer to object to the processing of a grievance. There was no reason for the Union to question the authority of Mr. Mastorakos to speak for the Ministry when he agreed not to raise time limits.

62I am also not persuaded that Ms. DeGirolamo “set him up” or misled him. The evidence is persuasive that she believed, at the time, that the Stage 2 had been deferred while the grievor was off work. A more thorough review of the file would have shown that was not the case, but Ms. DeGirolamo thought it was true. Consequently, when she told Mr. Mastorakos that the grievance had been held in abeyance, she was not trying to mislead him. It is also significant that Mr. Mastorakos did not question her assertion. Given the common practice between these parties to hold grievances in abeyance while an employee was off work, it is not surprising that he accepted that claim. If he had any doubts he could have deferred a response and told Ms. DeGirolamo that he would need to check with Human Resources before he could discuss this matter.

63Nor do I find Ms. DeGirolamo’s failure to send a confirming email to Mr. Mastorakos after their conversation to be suspicious. It would have been MUCH better had she done so. Indeed, it is unlikely that this hearing would have been necessary had she done so. But I do not read any improper motive from her failure to do so.

64Consequently, I conclude that, on an objective basis, it was reasonable for the Union to conclude that the Employer waived its right to object to the late referral of this grievance to arbitration.

65In light of this ruling, I find it unnecessary to address the Union’s fourth argument concerning Section 48(16) of the Ontario Labour Relations Act.

Conclusion:

66For all of the reasons set out above, I do not accept the Union’s first two arguments, but I do find, on an objective basis, that the Employer waived its right to object to the timeliness of the referral of this grievance to arbitration. The grievance should be scheduled for hearing, along with Ms. Morissette’s other grievances.