GSB# 2018-2877

UNION# 2018-0453-0006

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Watson)

Union

• and -

The Crown in Right of Ontario (St. Lawrence Parks Commission)

Employer

BEFORE

Diane Gee

Arbitrator

FOR THE UNION

Alex Zamfir Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Maria-Kristina Ascenzi Treasury Board Secretariat Legal Services Branch Counsel

HEARING

July 18, 2019

DECISION

1Mr. Watson was not offered additional work after his Seasonal Group 3 contract ended on November 17, 2017. A grievance was filed on his behalf on February 1, 2018 in which it was alleged that Mr. Watson had been “unjustly and unfairly denied employment.” The grievance alleges violations of Articles 3 and 6 of the Collective Agreement and section 50 of the Occupational Health and Safety Act (“OHSA”). The grievance was denied by the Employer by letter dated February 16, 2018. Article 22.6.1 of the Collective Agreement provides that a grievance is to be referred to arbitration within 15 days of the date of receipt of the employer’s decision failing which, according to article 22.14.1 “…it shall be deemed to have been withdrawn.” In this case, the grievance was referred to arbitration nine months after the deadline set out in article 22.6.1.

2At the commencement of the hearing, the Employer brought a motion that the grievance is inarbitrable as it had not been referred to arbitration in a timely manner. The Union asks that I exercise my discretion, recognized by article 22.14.7 of the collective agreement, to apply section 48(16) of the Labour Relations Act, 1995 (the “LRA”) and extend the relevant time limit.

3The parties entered into an Agreed Statement of Facts for the purposes of the Employer’s motion. The following is a brief summary of the agreed facts:

i. The grievor has held the Seasonal Group 3 position of Assistant Harbourmaster on a recurring basis from April 15, 2009 to the present.

ii. From April 2009 to the present, the grievor has been offered additional work, by way of an additional contract at the end of the original seasonal contract, on seven occasions. At some point in time, during the performance of this additional work, the grievor built a cabin.

iii. On April 3, 2017 the grievor accepted the temporary position of Acting Harbourmaster under a Group 1 contact. In this position, the grievor raised health and safety concerns at work. The grievor asked to be returned to his Assistant Harbourmaster position in August 2017, and he did so as of October 2, 2017. He worked in the Assistant Harbourmaster position until November 17, 2017.

iv. In November 2017, at the end of his contract, the grievor was not offered a contract extension or a new contract for additional work.

v. On January 25, 2018 the grievor learned of an ongoing project totalling eight weeks of work that involved the building of a cabin.

vi. The grievor was given seasonal contracts, in keeping with his previous seasonal contracts, in 2018 and 2019.

vii. The grievor filed a grievance as described above and a formal resolution meeting was held. The Employer denied the grievance by letter dated February 18, 2018 and the Union steward forwarded the grievance form and stage 2 decision to the Union to refer the matter to the Grievance Settlement Board.

viii. As a result of a clerical error, this grievance was not referred to the Grievance Settlement Board until November 26, 2018.

4In support of the Employer’s position, reliance is placed on Re Becker Milk Company Ltd. And Teamsters Union (1978), 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217; Re Greater Niagara General Hospital and Ontario Nurses’ Association, 1981 CanLII 4449 (ON LA), 1981 CarswellOnt 1881; OPSEU (Kavanaugh) v. Ontario (Community and Social Services), (2009) GSB#2007-0136, 2007-2649 (Harris); OPSEU (Smith et al.) v. Ontario (Ministry of Community and Social Services), (2008) GSB# 2006-2107, 2006-2379 (Gray); OPSEU (Nedai) and Ontario (Ministry of Attorney General), (2016) GSB# 2015-2063, 2015-2064, 2015-2065 (Briggs); OPSEU (Berday) and Ontario (Ministry of Transportation), (2008) GSB# 2007-3132 (Devins); OPSEU (Ng) and Ontario (Ministry of Government Services), (2010) GSB# 2009-3379 (Mikus); OPSEU (Lachance) and Ontario (Ministry of Community Safety and Correctional Services), (2008) GSB# 2006-2093 (Petryshen); and OPSEU (Kevin Gamble) and Ontario (Liquor Control Board of Ontario), (1998) GSB# 1635/96 (Gray).

5In addition to Becker Milk, supra, and Greater Niagara, supra, the Union relies on OPSEU (Clark et al) and Ontario (Ministry of Natural Resources and Forestry), (2018) GSB# 2018-0037, 2018-0040, 2018-0041, 2018-0042, 2018-0043 and 2018-0044 (Dissanayake) and Royal Crest Lifecare Group v. Service Employees International Union, Local 204 (Grossett) (2000), 2000 CanLII 50245 (ON LA), 91 L.A.C. (4th) 389.

6Article 22.14.7 of the collective agreement provides that the GSB has the jurisdiction to apply section 48(16) of the LRA to extend timelines in the collective agreement. Section 48(16) of the LRA provides that an arbitrator can extend timelines “where … satisfied that there are reasonable grounds for the extension and that the party opposite will not be unreasonably prejudiced by the extension.” The purpose of section 48(16) is to provide relief from the consequences that would result from a mechanical application of timelines but, as stated in section 48(16), such relief can only be given where: (1) there are reasonable grounds for doing so; and (2) the effect would not result in unreasonable prejudice.

7The parties are agreed that the following factors are to be considered in the course of determining whether the preconditions, necessary for the exercise of an arbitrator’s discretion to extend timelines, are present:

• The nature of the grievance

• Whether the delay occurred in initially launching the grievance or at some later stage

• Whether the grievor was responsible for the delay

• The reasons for the delay

• The length of the delay

• Whether the Employer could reasonably have assumed the grievance had been abandoned

8As recognized by both parties, each case is fact specific. All of the factors must be considered and weighed by the decision maker. As such I do not consider it necessary to review the submissions of the parties or the cases in any detail. This case must be decided having regard to the facts before me.

9The Union concedes that the grievor is not responsible for the delay; the delay was the result of a clerical error on the part of the Union. While there is no suggestion of bad faith or negligence on the part of the Union, the Union was the cause of the delay. The grievance was filed with the Employer in a timely manner and hence the Employer had timely notice of the issue raised in the grievance. However, the passage of nine months beyond the 15 days allowed for by the terms of the collective agreement without the matter being referred to arbitration, could reasonably have led the Employer to assume the grievance to have been abandoned. The nature of the grievance involves a claim of retribution for raising a health and safety matter and the possibility of eight weeks pay. While the nature of the issue in dispute in this matter is not trivial, it is also not of immense significance. Timelines were not extended in Lachance, supra, wherein the grievance was of a similar nature. Taking into consideration all of the foregoing, I do not consider there to be reasonable grounds for extending the timelines set out in the collective agreement.

10The grievance is hereby dismissed.