GSB# 2017-0553; 2017-1286; 2017-1287; 2017-1288; 2017-1289; 2017-1290; 2017-1312; 2017-1313

UNION# 2017-0201-0006; 2017-0201-0009; 2017-0201-0010; 2017-0201-0013; 2017-0201-0014; 2017-0201-0015; 2017-0201-0011; 2017-0201-0012

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Finn)

Union

• and -

The Crown in Right of Ontario (Ministry of Agriculture, Food and Rural Affairs)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Jennifer Micallef Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Caroline Cohen Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

February 27, 2019

DECISION

1The Board is seized with eight grievances filed by Mr. Fred Finn, who is employed as a Meat Hygiene Officer. File 2017-0553 relating to a letter of discipline was filed on May 7, 2017. All of the other grievances include allegations relating to accommodation and discrimination and were filed on June 30, 2017. This decision relates to a motion by the employer that certain aspects of two of the grievances filed on June 30, 2017 are untimely. The two grievances are as follows:

File 2017-1287 (Hereinafter "COI grievance")

Statement of grievance

I grieve that the employer has failed to provide me with the requested full disclosure on a Conflict of Interest (COI) form that the employer requested that I fill out. After this COI investigation, the employer decided to relocate my headquarters, due to a "perceived" conflict of interest. The employer insisted that I use CTO credits while they investigated. The employer has shown callous disregard for my disability by assigning me to locations outside my medical restriction for driving, namely Newmarket in 2016 and Georgetown in 2017, despite my doctor's notes and recommendations from WSIB.

• Violation of Article 3 and others of the Collective Agreement, Ontario Human Rights Code, Occupational Health and Safety Act, and any other acts, legislations or codes that may apply

Settlement desired

1. That I can be assigned to Sargent Farms & receive the disclosure 2. Be accommodated & compensated for all lost wages (with interest) retroactively, including credits, etc. 3. Damages for injury to my dignity, feelings and self-respect pursuant to the Code. 4. Any other remedy deemed by an arbitrator to make me whole.

File 2017-1312 (Hereinafter "sick leave grievance")

Statement of grievance

I grieve that I have been forced to use sick credits for a time period that I was not sick.

• In 2016. I was off sick, then able to return to work and the employer put me on paid leave while they were arranging for my return to work.

• In 2017, I was off sick and notified my manager that I was able to return to work January 23

• My manager insisted that I stay off using sick credits, even though I was not sick, while they were arranging for my return to work, which did not happen until March

• Violation of Article 3 and others of the Collective Agreement, Ontario Human Rights Code, Occupation Health and Safety Act, and any other acts, legislations or codes that may apply.

Settlement desired

1. That I be put on paid leave for this period 2. Be accommodated & compensated for all lost wages (with interest) retroactively, including credits, etc. 3. Damages for injury to my dignity, feelings & self-respect pursuant to the Code. 4 any other remedy deemed by an arbitrator to make me whole.

2Article 22.2.1 of the collective agreement provides:

It is the mutual desire of the parties that complaints of employment be adjusted as quickly as possible and it is understood that if an employee has a complaint, the employee shall discuss it with the employee's immediate supervisor within thirty (30) days after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee in order to give the immediate supervisor an opportunity of adjusting the complaint.

It is well established, that if a grievance is not filed within the time limits in the collective agreement between these parties, it is not arbitrable unless the Board exercises its discretionary power under section 48(16) of the Labour Relations Act to extend time limits.

3Employer counsel submits that the grievances include challenges to the following employer actions:

(1) The employer's finding that the grievor was in a position of conflict of interest due to a personal friendship with an employee of the meat packing company which had been assigned as his headquarters.

(2) The employer's failure to comply with the grievor's request for disclosure relating to the conflict of interest process.

(3) The employer's decision to change the grievor's assigned headquarters following the finding of conflict of interest.

(4) The employer's decision to deny the grievor's request that a specific period of absence be treated as paid leave, and its direction that the period be treated as sick leave.

It is the employer's position that these specific allegations relate to discreet decisions by the employer which were communicated to the grievor on specific dates. The grievor, therefore, was required by the collective agreement to file a grievance within 30 days of the date each of the decisions by the employer was communicated to him. This was not done.

4Citing Re Halsall 2007-1045 (Briggs), counsel submitted that in any event, the Board has no jurisdiction to review the employer's decision finding a conflict of interest itself, although the Board may review the operational decision to move the grievor to a different headquarters which the grievor claims was inconsistent with his medical restrictions.

5The union's primary position is that the issues raised in the two grievances are not untimely because they are part of a continuing grievance. Counsel argued that the larger issue in all of the grievances filed in June 2017 is about accommodation, discrimination and harassment ("hereinafter "the larger issue"). Counsel pointed out that these two grievances explicitly refer to accommodation. The employer is attempting to carve out as untimely, four issues which are "part and parcel" of that larger issue.

6Counsel argued that by their very nature accommodation, discrimination, and harassment violations rarely result from one discreet act by the employer. They involve a pattern of conduct over a period of time. A grievor is not required to grieve each time an act that forms part of that pattern of conduct is committed, in order to avoid timeliness objections. Counsel submitted that the aspects of the two grievances employer counsel objects to as being untimely are part of the larger issue, which is a continuing violation, and not grievances alleging isolated discreet violations.

7In the alternative, counsel submitted that if the Board concludes that the grievances are untimely with respect to the issues in question, it should exercise its statutory discretion to extend time limits. She argued that the circumstances of this case meet the test in s. 48(16) for the exercise of the Board's discretion, i.e. the existence of reasonable grounds for extension of time, and the absence of prejudice to the employer by such extension.

8The Board agrees that failure to accommodate, discrimination, and harassment grievances may, and often do, involve a pattern of conduct, and that each employer action forming such a pattern need not be grieved as they occur, to comply with the timeliness requirements. In pursuing accommodation/ discrimination/harassment grievances, a grievor would not be precluded from leading evidence relating to employer action, which he/she claims form part of the pattern of conduct, because they took place more than 30 days prior to the date of filing.

9In Re Poblete, 2017-0709 (Herlich) the Board described its approach as follows at para.5:

5A brief comment on the strategic manner in which the employer chose to order its motions will be useful. Without unnecessarily surveying the jurisprudence, it is fair to say that this Board (and other arbitrators) have exhibited some flexibility in relation to the strict application of time limits or the adducing of evidence regarding events which significantly pre-date the filing of a grievance in cases where an ongoing pattern of improper discrimination or harassment is alleged. For example, in OPSEU (Lunan) and Ministry of Labour, GSB Nos. 2013-0513 et al, May 15, 2015 (Leighton), this Board confirmed a guideline that permits a grievor alleging an ongoing pattern of harassment and discrimination to adduce evidence covering a period of three years prior to the filing of the grievance (it is a guideline, not a rigid rule – each case is to be considered on its particular facts). It is clear, however, that the consideration of time limits or the adducing of evidence regarding what might otherwise be stale events may be very different in a case alleging ongoing discrimination as compared to, say, a more conventional job posting case.

10In the instant case, if the union is asserting that the facts underlying the four issues support its grievances on the larger issue, subject to relevance, it would not be precluded from leading that evidence because of the 30 day time limit in article 22.2.1.

11However, that is not what the union has done. It has grieved the employer decisions themselves. The decision that a conflict of interest exists; that it would not be providing any further disclosure relating to the COI process; that the grievor is required to use CTO credits pending the completion of the investigation; that as a result of the finding of conflict his headquarters is changed; and that a specific period of absence will not be treated as a period of leave with pay and must be treated as sick leave. It may be that the two grievances raise some factual assertions relevant to the larger issue, which the employer agrees is properly before the Board. If so, the union may rely on those facts in support of that larger issue. What it is not entitled to do is to file grievances outside the time limits grieving employer conduct as discreet violations, and seeking remedies with respect to those alleged violations. For example, the COI grievance states "I grieve that the employer has failed to provide me with the requested full disclosure on a COI form". The sick leave grievance alleges that the employer required the grievor to use sick credits for a period when he was not sick. In the COI grievance the remedial request challenges the employer's decision that a conflict of interest exists and the decision to change the grievor's headquarters as a result. In the same grievance, the grievor seeks an order that he receive the disclosure relating to the COI process denied by the employer. He seeks a finding that he can be assigned to the location where the employer had concluded a conflict existed. In the sick leave grievance he seeks an order that "I be put on paid leave for this period". Thus discreet allegations are made and most importantly, redress is sought with respect to those allegations. These aspects of the grievances are not insulated from the timeliness requirements in the collective agreement, simply because the larger issue is also referred to in these grievances.

12For those reasons, I find that the two grievances are untimely as they relate to the four issues objected to by the employer.

13The next issue then is whether the Board should exercise its discretion to extend time limits. For the Board to exercise the discretion to extend time limits, two conditions must be met. Thus in Re Smith et al, 2006-2107 (Gray) after setting out s. 48 (16) of the Labour Relations Act, at para.13 the Board wrote:

While the employer does not allege that the delay has caused it any specific prejudice, the absence of substantial (or any) prejudice is not a sufficient basis for exercising this discretion. The Legislature has required that there must also be "reasonable grounds for the extension".

A more recent decision Re Liantzakis 2012-3997 (Tims) confirms at para. 74 that both requirements must be met before the Board can exercise its discretion under s. 48(16). It wrote:

74The parties addressed as well whether the Employer would be "substantially prejudiced" by the extension of time limits in the present circumstances. While it is not necessary for me to make such determination here given my conclusion that there are no reasonable grounds for such extension, I shall nonetheless comment on the parties' positions.

14I turn next to consider whether reasonable grounds exist for extension of time limits. In Re Becker Milk, (1978) 10 L.A.C. (2d) 217 (Burkett) at pp. 220-221, the arbitrator set out three factors to be considered in determining whether "reasonable grounds" exist for extension. They are: (i) the reason for the delay given by the offending party; (ii) the length of the delay, (iii) the nature of the grievance.

15The reason offered for the delay in filing grievances relating to the issues in question, was that the union was of the view that these issues were part and parcel of the larger issue, and therefore part of a continuing grievance which is not subject to the 30 day time limit. Employer counsel had asserted that the grievance as it related to the change of headquarters was filed 10 months late, the failure to disclose issue grieved 7 months late; the requirement to use CTO credits grieved 17 months late, and the denial of paid leave and requirement to use sick leave late by 3½ months. Union counsel did not dispute these time estimates, and conceded that these delays are not minimal. However, she submitted that the period of delay must be considered "in context". The context she relied on was that the delay caused no prejudice to the employer. She submitted that even if the issues themselves are held to be inarbitrable, the union would still be relying on the facts underlying those issues as evidence supporting its primary allegation of the larger issue. Therefore, there would be no saving of hearing time. Counsel disagreed with the employer's assertion that absence of prejudice is irrelevant, if the union has not first established reasonable grounds for extension of time.

16On the nature of the grievance criterion, union counsel cited paragraph 67 of the decision in Re Liantzakis (supra) to the effect that allegations of harassment and discrimination contrary to the Human Rights Code, raise matters of import.

17Having carefully considered the respective submissions of the parties, the Board upholds the employer's motion. The union's view that the four issues, as grieved are part of a continuing grievance, however honestly held, was not correct for the reasons set out above.

18It also follows that the nature of the grievances as they relate to the issues in question are not about human rights. They are about specific decisions the employer made with regard to conflict of interest, CTO credits and how to treat a specific period of absence by the grievor; matters that fall in the lower end of the spectrum of seriousness.

19Finally, as for the length of delay, the union's reliance on the lack of prejudice to the employer is of no assistance to it. Counsel conceded, and I find in any event, that the delays are not minimal. Counsel's submission is to the effect that despite that, the Board may extend time limits since there is no prejudice to the employer. This submission is inconsistent with the authorities. The authorities cited above at para. 13 are clear pronouncements that both "reasonable grounds for extension" and "absence of substantial prejudice" are pre-requisites for the exercise of arbitral discretion to extend time limits under s 48(16) of the Labour Relations Act. Section 48(16) clearly states that. Indeed in Re Liantzakis, (supra) Arbitrator Tims explicitly states that, it is not necessary for her to determine whether the employer would be substantially prejudiced by the extension of time limits "given my conclusion that there are no reasonable grounds for such extension …" Since I have concluded that the union has not established reasonable grounds for extension, there is no basis to exercise the Board's statutory discretion.

20In all of the circumstances, I decline to exercise the Board's discretion to extend time limits in relation to the issues in question. However, as observed earlier in this decision, the union is not precluded from relying on any relevant facts related to those issues in support of its allegation in the grievances on the larger issue which the employer has agreed is properly before the Board. The Board remains seized.