GSB# 2019-1995; 2019-2029
UNION#2019-0290-0012; 2019-0290-0013
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Jackson)
Union
- and -
The Crown in Right of Ontario (Ministry of Children, Community and Social Services)
Employer
BEFORE
Kevin Banks
Arbitrator
FOR THE UNION
Iliad Nazhad Ryder Wright Blair & Holmes LLP Counsel
FOR THE EMPLOYER
Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel
HEARING
July 22, 2020 (by teleconference)
DECISION
Introduction
1The Union has referred two matters to the Board for arbitration on Ms. Jackson’s behalf. The Employer takes the position that neither is arbitrable. It submits that the first matter, a grievance dated May 12, 2019, was not referred to arbitration in a timely manner in accordance with Article 22 of the Collective Agreement. It also contends that the grievance provides no basis upon which to arbitrate the complaints of unjust discipline now presented by the Union on Ms. Jackson’s behalf. With respect to the second matter, a set of complaints set out in a letter from Ms. Jackson dated June 2, 2019, the Employer takes the position that it cannot be considered a grievance and is therefore not arbitrable. In the alternative, the Employers maintains that even if this second matter is a grievance, it was not referred to arbitration in a timely manner.
2The Union responds that the Employer waived any rights to object to the timeliness of the referrals to arbitration, that the May 12, 2019 grievance sufficiently raises the relevant unjust discipline issues, and that any procedural irregularities with respect to the second matter are not of sufficient consequence to render it inarbitrable.
Evidence
3The parties agreed to proceed on the basis of documents submitted on consent, without calling witnesses.
4On May 6, 2019, the Employer issued two disciplinary suspension letters to Ms. Jackson. Each letter addresses different incidents. The first letter imposes a suspension of 15 days. The second imposes another 15-day suspension. The suspensions were to run consecutively in May and June of 2019.
5On May 12, 2019, Ms. Jackson signed a Grievance Form that included the following Statement of Grievance:
I grieve the employer violated Articles 2, 3, and 22 of the Collective Bargaining Agreement and all other Acts, laws, legislations, policies and practices.
This form is date-stamped as received by the Employer on May 14, 2019.
6The parties addressed the suspensions imposed on Ms. Jackson at a meeting of their Alternative Dispute Resolution Committee on June 3, 2019. By agreement, this meeting substituted for the Formal Resolution Stage (“FRS”, or “stage 2”) meeting of the Collective Agreement’s grievance procedures.
7The Employer later received an unsigned letter from Ms. Jackson to her Union Local President, Mr. Mike Fallon, dated June 2, 2019. Mr. Fallon delivered the letter to Ms. Jackson’s manager. The letter is date-stamped as received by the Employer on June 26, 2019. It reads as follows:
June 2, 2019
Mike Fallon / Bruce England
Union Representative, Local 290
Ontario Public Service Employee [sic] Union
100 Lesmill Road, Toronto, Ontario M3B 3P8
Re: Formal Written Grievance
Please accept this letter as a formal written grievance in response to a letter signed by Brad Hoover, Youth Centre Administrator, Re: Disciplinary Action dated May 6, 2019. It is my right under Article 21.1 of the OPSEU Collective Agreement to grieve such discipline. Furthermore, as requests to meet with management have gone unaddressed, and my complaints unresolved, I am exercising my right under Article 22.2 to file this grievance within the 30-day allotment.
My rights as an Ontario Public Service (OPS) Employee per the collective bargaining agreement were breached. Specifically, the progressive discipline rules were not followed that led to my unpaid 30-day suspension. I am grieving the fact that management did not take my concerns seriously after a request in November 2018 to address gender discrimination and poisonous work environment concerns. I consider this to be a failure to act on behalf of management. As a result, I did not have an opportunity to meet with management as per Article 21.1.1. As per the OPS collective agreement, an employee is to be given first a warning and then a second warning, prior to any discipline including a suspension. In my case, I did not receive a formal first warning. I did however receive a written warning on November 22, 2018 from an incident stemming from August 2018. I consider this to have been my first warning. On May 6, 2019 I was suspended for 30-days without pay. As stated, management has breached my rights as an employee by not following the progressive discipline procedures.
I expect that my rights as an OPS employee be protected. As such I look forward to your response under Article 22, Formal Resolution Stage. If there are any additional questions or concerns that I can assist with, please let me know.
Sincerely,
Catherine Jackson
8On June 27, 2019 Ms. Tanya O’Reilly, HR Advisor, wrote an email on behalf of the Employer to Mr. Fallon seeking clarification of the letter. Her email reads as follows:
Hi
I got the:
1st attachment yesterday from Felicia…(and why is it not on a grievance form)
My question is: is this the same or different form
Her other grievance dated May 14th (2nd attachment)- this was sent to ADRC…
I’m just a bit confused.
Regards,
Tanya O’Reilly
9Mr. Fallon responded by email that same day. His message reads as follows:
Hi Tanya,
I received the email from her. It is not on a grievance form because she has not yet returned to work and did not notify me of the grievance until I received it. I’m not sure where it generated from other then [sic] to say she sent it to me and I gave it to Felicia. There was no outcome at ADRC and has been escalated to GSB
In Solidarity,
Mike Fallon
10Ms. O’Reilly responded by email on July 3, as follows:
Hi Mike/ Karen,
Ok I am still a bit confused, this is the order of events:
She gets suspended files the first grievance (attachment 1)
It goes to ADRC- does not get resolved – is going to GSB,………..
BUT THEN
She files the second grievance (in this letter form) (attachment 2), which represents the 1st grievance?
Here is my question: if the 2 grievances are the same thing, why is she filing a 2nd grievance? ( the 2nd one represents the 1st first one, does she not understand the process) or am I wrong?
From what I understand her 1st grievance is still open and going to GSB, she needs to follow the process.
Tanya
[emphases in original]
11Mr. Fallon in turn responded by email on July 5:
Hi Tanya/Karen,
I am confused by the grievance as well. It was not expected when it came to me. From what I can tell, she is grieving that progressive discipline was not followed. Also that she did not have the opportunity to speak with her manager prior to the allegation meeting.
The 1st one is going to GSB but I don’t think the 2nd one represents the first one. I think it is more of a grievance towards the guidelines (I’m not sure).
My suggestion is to allow the 2nd one to go to FRS so that Catherine can have her say and then if it is not clear or there has been no violation and is denied the 2 of them can be tied together and go to GSB together.
In Solidarity,
12On July 6, 2019 Ms. Karen Martin, Employee Relations Advisor with the Employer, wrote the following message to both Ms. O’Reilly and Mr. Fallon:
Hi. Just read over the document/letter she wrote to Mike.
Mike – can we leave this with you to explain to her that her grievance for the discipline was already filed, and that the grievance process is already underway (eg., ADRC meeting)? Unless this is a new grievance, about new things, I don’t think a new grievance form or stage 2 meeting is required. Please advise.
Karen Martin
Employee Relations Advisor
13There is no evidence of any further correspondence or communication between the parties regarding Ms. Jackson’s letter or grievance form before the Union referred both matters to the Board for arbitration.
14On November 19, 2019 the Union wrote to the Board to formally refer the May 12, 2019 grievance to arbitration, enclosing a copy of the Grievance Form, bearing the OPSEU file number 2019-0290-0012.
15On November 21, 2019 the Union referred another Grievance Form on behalf of Ms. Jackson to the Board for arbitration. This form, bearing the OPSEU file number 2019-0290-0013, is signed by the Mr. Fallon but not by Ms. Jackson. It bears the date June 2, 2019 next to the grievor’s signature line. The Statement of Grievance refers to Ms. Jackson’s letter to Mr. Fallon dated June 2, 2019 as an attachment. The Board received both the Grievance Form and the attached letter on November 21, 2019.
16At their December 2019 Joint File Review meeting the parties scheduled a hearing before me in connection with both matters for July 7, 2020. The Board issued a corresponding Notice of Proceeding on January 14, 2020. The Notice references the file numbers of both Grievance Forms sent to the Board.
17On July 3, 2020 I was informed that the parties agreed to a mediation on the Zoom platform, to seek a resolution of both matters referred to the Board by the Union.
18The mediation proceeded as scheduled on July 7, 2020. The parties were unable to reach a settlement. Following mediation, the parties discussed preparations for arbitration, including a request by the Employer for particulars of Ms. Jackson’s complaints. About an hour after the end these discussions, Employer counsel asked to reconvene the meeting with me and with Union counsel, and then raised the Employer’s objections to arbitrability.
Arguments of the Parties
Employer arguments
19The Employer submits that because the Grievance Form dated May 12, 2019 was referred to the Board on November 19, 2019, 89 days after the 15-day time limit set out in Article 22.6.1 of the Collective Agreement, Article 22.14.1 deems it to have been withdrawn. It maintains that because stage 2 of the grievance procedure (the Formal Resolution Stage) was waived by the parties in favour of the ADRC process, the time limit for referring the matter to the Board began to run on June 3, 2019 and expired 15 days later, long before the referral. Any earlier stated intentions to refer the grievance to arbitration do not count, says the Employer, as a referral within time limits: Community Living Mississauga and Ontario Public Service Employees Union (Dineen et al), Local 251, 2002 CarswellOnt 9205; Vulcan Packaging Inc. v. U.S.W.A., Local 6754, 1998 CarswellOnt 5326.
20While acknowledging that an arbitrator may extend time limits by exercising the discretion provided in Article 22.14.7, the Employer insists that this is not a case in which it would be appropriate to do so. It maintains that the evidence establishes no reasonable grounds for an extension. The Employer notes that arbitrators have required reasonable grounds for and refused extensions of time in cases of similar delay in processing grievances dealing with similarly serious issues: Ontario Public Service Employees Union (Kavanaugh) and The Crown in Right of Ontario (Ministry of Community and Social Services), GSB Nos. 2007-0136, 2007-2649 (Harris); Ontario Public Service Employees Union (Smith et al.) and The Crown in Right of Ontario (Ministry of Community and Social Services), GSB Nos. 2006-2107, 2006-2379 (Gray); Ontario Public Service Employees Union (Watson) and The Crown in Right of Ontario (St. Lawrence Parks Commission), GSB No. 2018-2877 (Gee); Ontario Public Service Employees Union (Berday) and The Crown in Right of Ontario (Ministry of Transportation), GSB No. 2007-3132 (Devins); Ontario Public Service Employees Union (Ng) and The Crown in Right of Ontario (Ministry of Government Services), GSB No. 2009-3379 (Mikus); Ontario Public Service Employees Union (Bremner) and The Crown in Right of Ontario (Ministry of the Attorney General), GSB Nos. 2017-2936, 2017-2937, 2018-2950 (Misra); Ontario Public Service Employees Union (Lachance) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2021 CanLII 82489 (ON GSB), 2017 CarswellOnt 21770 (Briggs); Ontario Public Service Employees Union (Faulkner) and The Crown in Right of Ontario (Ministry of the Community Safety and Correctional Services), GSB No. 2006-2093 (Petryshen). The Employer notes that the Union has committed in Article 22.1 to “adjust as quickly as possible” any differences between the parties as to the alleged contravention of the Agreement, and that grievors are taken to understand their rights and can check on whether the Union has processed their grievance to the next stage: Kavanaugh, supra, at para 12; Faulkner, supra at page 8; Ontario Public Service Employees Union (Nedai) and The Crown in Right of Ontario (Ministry of the Attorney General), GSB Nos. 2015-2063, 2015-2064, 2015-2065 (Briggs). The Employer emphasizes that if time lines were extended merely because of the seriousness of a grievance or because of union error, they would become meaningless: Nedai, supra; Watson, supra. The Employer submits that in this case it could reasonably have assumed that the grievance had been abandoned, since the Union had told it that the grievance was going to the GSB but it did not in fact go there for months afterwards.
21The Employer submits in the alternative that even if the referral of the May 12, 2019 grievance was ruled timely, it could provide no basis upon which to address at arbitration whether the suspension imposed upon Ms. Jackson was substantively just and appropriate. The Employer points out that the Statement of Grievance does not refer to discipline or to any articles of the collective agreement dealing with discipline. The grievance refers to Article 22, whereas the article dealing with discipline is Article 21. The Employer notes that while the letter dated June 2, 2019 specifically does raise the issue of whether the discipline was just and appropriate, this only supports a conclusion that the May 12 grievance does not deal with such issues, because it would make no sense to grieve the same issues twice. The Employer maintains that one cannot infer that the May 12 grievance deals with the May 6 discipline just because the discipline was issued a week prior. The Employer submits that it could reasonably have assumed that the grievance simply alleged that the disciplinary letters were a form of harassment, without challenging the length of the suspension. It contends that the Union must clearly articulate that is it grieving the length of the suspension. In this regard, the Employer refers me to Toronto District School Board v. C.U.P.E., Local 4400, 2000 CarswellOnt 9381 (Schiff); Greater Sudbury Hydro Plus Inc. v. C.U.P.E., Local 4705, 2003 CarswellOnt 5849 (Dissanayake); Ontario Public Service Employees Union (Labanowicz) and The Crown in Right of Ontario (Ministry of Transportation), 2014 CarswellOnt 12578 (Lynk); Ontario Public Service Employees Union (Marinelli) and The Crown in Right of Ontario (Ministry of Natural Resources), GSB No. 1978/89 (Kirkwood et al.); Ontario Public Service Employees Union (Jones) and The Crown in Right of Ontario (Ministry of Labour), 2010 CarswellOnt 11669 (Abramsky).
22With respect to the June 2, 2019 letter, the Employer takes the position that it is not a grievance, but rather an unsigned letter to a Union representative, delivered without explanation to the Employer. The Employer argues that the form of the letter is fundamentally defective. It was not connected to a Grievance Form until it was referred to the GSB. The Employer also emphasizes that the complaints set out in this letter were never discussed in the course of any grievance resolution procedure prior to being referred to arbitration. The Employer submits that such a complete failure to comply with grievance procedures deprives the Board of jurisdiction to hear and decide a matter: Ontario Public Service Employees Union (Samsone) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2010 CarswellOnt 10246 (Petryshen); Ontario Public Service Employees Union (Gillis et al) and The Crown in Right of Ontario (Ministry of the Community Safety and Correctional Services), GSB No. 2003-1520 (Abramsky). The Employer submits that the Board cannot allow a situation in which any employee can write a letter, put it on a manager’s desk in a way that circumvents the Union, and expect that it will be dealt with through the arbitration procedure.
23Finally, the Employer takes the position that even if the June 2, 2019 letter were treated as a grievance, the Board should rule that it is deemed to have been withdrawn because it was not referred to arbitration in a timely manner. The arguments in support of this position mirror those that the Employer makes with respect to the May 12, 2019 grievance. The Employer notes that while no stage 2 meeting ever took place with respect to the June 2, 2019 letter, time limits in Article 22.6.1 for referral to arbitration begin to run regardless of whether stage 2 procedures have been completed: Ontario Public Service Employees Union (Johnston) and The Crown in Right of Ontario (Ministry of the Attorney General), GSB No. 2009-1147 (Dissanayake) at paras 22 and 23.
Union Arguments
24The Union takes the position that the Employer has waived its right to object to the untimeliness of the referrals to arbitration. The Union submits that a waiver takes place when it is reasonable to infer it on the basis of a party’s conduct: Amalgamated Transit Union, Local 1587 v Ontario (Metrolinx – GO Transit), [2012] OGSBA No 65 (Dissanayake), para 28; OPSEU (Fung/Anand) v The Crown in Right of Ontario (Ministry of Revenue) [1991] GSB No 1798/89, 104/90 (Stewart), page 9. The Union maintains that waiver can be inferred on the basis of prolonged silence in the face of a clear procedural defect without a compelling reason to justify the failure to object: Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services (Sagiuliano Grievance) [2014] OGSBA No. 2011-2303 (Briggs); Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services (Culos Grievance) [2011] OGSBA No. 116 (Petryshen). The Union says that the Employer’s failure to object in this case lasted about one year, and that it would be unfair to allow it to make its objection now. Waiver can also be inferred, submits the Union, from a party’s taking fresh steps in proceedings: Ontario Public Service Employees Union v Ontario (Ministry of Community Safety and Correctional Services) (Wage Grievance), [2005] OGSBA No. 59 (Herlich); Ontario Public Service Employees Union v. Ontario (Ministry of Attorney General) (Curtis Grievance)) [2020] OGSBA No. 2017-2071 (Petryshen). In this case, the Union contends, the Employer took fresh steps by scheduling a hearing, attempting to resolve the dispute through mediation, and requesting production of particulars once it became clear that the matter would not settle.
25The Union submits that the May 12, 2019 grievance raised the issue of whether the two suspensions were just and appropriate. It points out that the grievance went to the ADRC, and there the parties discussed the length of the suspensions. It says that were no surprises: the grievance document was imperfect, but the Employer could readily infer what it was about, given that it was dated just days after the discipline was imposed. In this context, the Union maintains, the fact that the grievance refers to Article 22 rather than Article 21 is not significant. In any event, says the Union, the grievance refers to all other applicable laws, and is therefore drafted broadly enough to seek full redress in response to the Employer’s disciplinary action. Grievances, submits the Union, should not be read in a narrow and technical fashion, but instead construed liberally so as to deal with the real issue between the parties: Ontario Public Service Employees Union v. Crown (Ministry of Government Services)[2010] Ng, OGSBA 2009-0681, 102 C.L.A.S. 258 (Mikus); Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486, 1975 CanLII 707 ONCA, 8 OR (2d) 103.
26The Union contends in addition that the June 2, 2019 letter should be treated as a new grievance alleging a continuation of conduct giving rise to the earlier one. It says that the letter describes the disciplinary action in question and extends Ms. Jackson’s allegations in connection with it. It submits that the delay between the date of the letter and the date upon which it was delivered to the Employer was due to the grievor’s being on sick leave. The Union contends that the Collective Agreement prescribes no particular form for a grievance, and that without such prescriptions arbitrators have over-ruled objections based on failure to use a particular form: Central Hospital Corp v. ONA, Local 107, 1975 CanLII 2146 (ON LA), [1975], 10 L.A.C. (2d) 412 (Weatherill).
27Finally, the Union maintains in the alternative that this is an appropriate case in which to exercise my discretion to extend the time limits for referring a matter to arbitration. The Union maintains that the delay in question was no fault of the grievor’s, that the Employer knew of the Union’s intention to refer the matter to the Board for arbitration, that the grievance raises very serious issues – two fifteen day suspensions, and allegations of discrimination and harassment; and that there is no evidence of prejudice to the Employer. The Union submits that the reason for the delay was to link the two grievances, and that the Employer could not have reasonably inferred in the circumstances that they had been abandoned. The Union refers me to Ontario Public Service Employees Union v. Crown (Liquor Control Board of Ontario) [2015] (Robbins Grievance) OGSBA No. 2013-0526 et al (Lynk). The Union sought to distinguish the Ng decision cited by the Employer on the grounds that in that case the arbitrator found that the grievor was not credible; the Nedai case on the grounds that the delay in question was more likely 7.5 months; the Kavanaugh case on the grounds that the matters it raised were less serious; the Smith case on the ground that there the factual background did not permit the arbitrator to infer the reasons for the delay; and the Watson case on the grounds that the delay there was much longer – nine months – which gave the Employer reason to infer that the grievance had been abandoned.
Employer reply
28The Employer responds that the June 2, 2019 letter cannot state a continuing grievance because it in fact challenges the discipline imposed upon Ms. Jackson for the first time. Otherwise, contends the Employer, the grievor must be understood to have grieved the same thing twice, which makes no sense. Further, says the Employer, the fact that the grievor was on sick leave does not account for the fact that the June 2 letter is not on a grievance form: if she was able to draft the letter on June 2, she could have arranged to file it on a Grievance Form.
29In addition, the Employer takes issue with the argument that its participating in the July 7, 2020 mediation could constitute fresh steps sufficient to waive its timeliness objections. The Employer submits that the clock should not have started running on its right to object because it had not received particulars of the May 12, 2019 grievance or of the complaints contained in the June 2, 2019 letter. The mediation was an attempt without prejudice to resolve the matter. The Employer submits that treating such an attempt to resolve the dispute as a fresh step for the purposes of waiver would short circuit any attempt to use mediation prior to a full exchange of particulars, for fear that doing so would deprive parties of rights to object on timeliness grounds.
30Finally, the Employer notes that in a June 26, 2020 letter to Union counsel it reserved its rights to raise preliminary objections.
Union response
31In a brief response, the Union stated that broad reservation letters do not have effect in the face of a waiver, and reserved its rights to submit further case law on this point in the event that it might prove determinative.
Decision
32The evidence establishes that the Union’s referrals to arbitration clearly did not conform to the timelines set out in Articles 22.2, 22.3 and 22.6.1 of the Collective Agreement. The relevant articles provide that:
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 this Agreement, including any question as to whether a matter is arbitrable.
22.1.1 If an employee has a complaint, the employee shall meet, where practical, and discuss it with the employee’s immediate supervisor in order to give the immediate supervisor an opportunity of adjusting the complaint.
FORMAL RESOLUTION STAGE
22.2 If the complaint or difference is not resolved at the local level an employee may file a grievance, in writing, through the Union, with their manager 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, who will in turn forward the grievance to the designated management representative.
22.3 The designated management representative 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…
22.6 REFERRAL TO ARBITRATION
22.6.1. If the grievor is not satisfied with the decision of the designated management representative 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.
33By agreement, the Parties waived the Formal Resolution Stage for the grievance dated May 12, 2019 in favour of the ADRC meeting on June 3, 2019. The evidence does not disclose when or how the outcome of the ADRC meeting was communicated to the grievor. But this makes no difference to whether the referral to arbitration was timely. At the latest, the referral would have been due within fifteen days after the seventh day following June 3. Since by agreement the ADRC served as the stage 2 process, for the purposes of Article 22.6.1 the specified time limit for receiving the stage 2 decision became 7 days following the ADRC meeting. As the Employer points out, an intention to refer grievances to arbitration (such as that expressed in Mr. Fallon’s emails to Ms. O’Reilly of July 3 and 5, 2019) does not amount to an actual referral for the purposes of timelines in collective agreement grievance procedures: Community Living Mississauga, supra, at para 25. The referral to arbitration of the May 12 grievance did not happen until November 19, 2019. It was therefore at least four and a half months late. As for the June 2, 2019 letter, the evidence indicates that the Employer received it on June 26, 2019, and that the Formal Resolution Stage (FRS) meeting did not take place. The referral to arbitration was therefore due within 15 days of the time limit for receiving a FRS decision, which in turn was 22 days after Ms. Jackson’s manager received the letter on June 26, 2019. The referral to arbitration of the Grievance Form associated with the June 2, 2019 letter was therefore no less than three months late.
34The Union contends however that by its conduct the Employer waived its rights to insist upon those timelines. The jurisprudence of this Board has long recognized that a party can waive its right to insist upon Collective Agreement timelines by its conduct. As Arbitrator Dissanayake observed at paragraph 28 of the Amalgamated Transit Union, Local 1587 decision, supra:
It is trite to say that waiver need not necessarily be explicit. It may be inferred from conduct…. The reasoning behind the doctrine of waiver is that it is unfair and prejudicial to mislead the other party into believing that it is prepared to deal with a grievance despite its untimeliness, and then to rely on its strict rights to preclude the grievance from preceding further. Therefore it 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, conclude that the employer would not be objecting on the basis of time limits?
35The Board has considered this question on numerous occasions. It has addressed situations quite similar to the one at hand. Taken together, these decisions indicate in my view that a party that fails to object to a clearly untimely grievance or referral to arbitration over a period of months, and during that time takes a fresh step to advance the grievance procedure, for example by agreeing in the Joint Review process to schedule a hearing, will be found to have waived its rights to object on timeliness grounds, in the absence of some compelling explanation of its failure to object earlier.
36In Re Wage Grievance, supra at page 11, Arbitrator Herlich quoted a concise summary of the relevant principles, originating in Fung/Anand, supra:
The principle that these cases establish is that an objection based on non-compliance with the time limits is waived when there has been a failure to raise the objection in a timely manner and the taking of a fresh step prior to raising the objection… Once the timeliness objection has been waived it cannot be revived by notice.
Arbitrator Herlich went on at pages 11 and 12 to find that agreeing to refer a grievance to arbitration can constitute a fresh step:
These citations and the cases referred to disclose that a “fresh step” might consist of little more than participation in subsequent steps of the grievance procedure or in the referral of a grievance to arbitration. There is no doubt in my mind that, in the present case, the Employer’s participation in the Joint Review Process as contemplated by Article 22.17 of the collective agreement and described therein as “an integral part of the dispute resolution mechanism” constituted a fresh step in the proceedings.
37In this case the Employer attended the Joint Review Process in December of 2019 and agreed to schedule a mediation/arbitration hearing. It raised no timeliness objection until the close of the mediation that took place on July 7, 2020, almost eight months after the referral to arbitration. The principles and findings in Re Wage Grievance have been applied on facts similar to those at hand. In Culos, supra Arbitrator Petryshen found, after quoting the above passages from Re Wage Grievance with approval, that because the employer failed to raise a timeliness objection soon after receiving a grievance that the employer should have known was untimely, waived the step 2 meeting, and then participated in the Joint Review process without objection, it had waived its right to object subsequently to the timeliness of the grievance. Similarly, in Sagiuliano, supra, Arbitrator Briggs endorsed at paragraph 53 the statement in Palmer, Collective Agreement Arbitration in Canada that “[c]onduct which has been held to amount to a waiver includes: allowing a grievance to go through the grievance procedure; failure to object at the first opportunity in the grievance procedure;… and an attempt to settle the grievance”. She went on to find that the employer had waived its right to raise a timeliness objection because it had allowed eight months to pass before making any mention of preliminary issues. In that case the grievance was dated September 21, 2011. There was no Stage 2 meeting even though the parties did not agree to forego one or to extend the time limits for one. The grievance was not referred to arbitration until April 2, 2012. The employer made no mention to the union of the possibility of any preliminary objection until it wrote to the union on May 29, 2012. Arbitrator Briggs concluded at paragraph 61 that:
Virtually all of the cases provided refer to objections being raised “at the first opportunity” or “in a timely fashion”. That did not occur in the facts before me. In this case there was an initial delay of eight months before the Employer made a reference to the possibility of “any preliminary objections”. That delay was enough for a finding of waiver.
Her ruling thus finds a waiver on very similar facts to those in this case. It also suggests that a sufficiently lengthy delay in raising a timeliness objection can in itself amount to a waiver.
38The Employer submits that the clock should not have started running on its right to object because it has not received particulars of the May 12, 2019 grievance or of the complaints contained in the June 2, 2019 letter. I do not agree. While particulars of a grievance might be relevant to determining whether it was filed in a timely manner, as they may reveal whether a grievance is continuing or not, they do not matter to whether Article 22.6.1’s time limits have been breached. All that is required to breach those time limits is that 15 days elapse from the date upon which the grievor received an FRS decision concerning the grievance, or from the date upon which the grievor should have received the decision in accordance with Article 22.3. This happened months before the referral to arbitration. Particulars of the grievance were not required to make the untimeliness of the referral evident to the Employer. As Arbitrator Stewart said in Fung/Anand, supra, at page 11, a party to a grievance procedure must be presumed to be aware of the facts relating to the timeliness of the grievance. Time starts to run on the right to object once a procedural defect would presumably have become clear to a party: Curtis, supra at para 19. In this case, the untimeliness of the referral would have been evident to the Employer, at the latest, once it received notice of the Union’s referral to arbitration in November of 2019.
39Accordingly, I find that by its conduct the Employer waived its rights to object to the untimeliness of the Union’s referrals to arbitration. I therefore need not consider whether to exercise the discretion under Article 22.14.7 to extend the timeline for referral to arbitration.
40I turn next to the question of whether the complaints contained in the June 2, 2019 letter are arbitrable. The Employer’s position is, in essence, that they are not because: (1) they cannot constitute a grievance, being fundamentally defective as such; and (2) they were referred to the Board for arbitration without having gone through required steps of the grievance procedure. I agree with both arguments.
41As the Union points out, the Collective Agreement does not prescribe the use of a particular form. Article 22.2 simply says that a grievance must be in writing and filed with the employee’s manager, through the Union. Mr. Fallon appears to have delivered the letter in question to Ms. Jackson’s manager on June 26, 2019. He clarified on July 3, 2019 that the Union intended that the letter be treated as a grievance. This course of conduct appears to have met Article 22.2’s written form and delivery requirements, albeit in an unusual way that caused some confusion. But the real question is whether the June 2, 2019 letter presents a new grievance or not. Article 22 grants rights to engage in a single grievance procedure (subject to procedural formality and timeliness requirements) in relation to a given “complaint or difference”. It does not grant rights to repeat the procedure in relation to the same complaint or difference. In the end, the Union never took the position that the June 2, 2019 letter added anything to the May 12, 2019 grievance, despite being asked by the Employer whether it did. Upon receipt of the June 2, 2019 letter, Ms. O’Reilly indicated to Mr. Fallon in her July 3, 2019 email that the letter seemed not to raise any issues not already raised by the May 12, 2019 grievance. She indicated that she could not understand its purpose and said she was confused. Mr. Fallon responded in his July 5, 2019 email was that he was confused as well. He suggested that the issues raised by the letter were “that progressive discipline was not followed” and that Ms. Jackson “did not have the opportunity to speak with her manager prior to the allegation meeting.” But these are issues that would normally fall within the scope of a grievance challenging a disciplinary decision. He said nonetheless that “I don’t think the 2nd one represents the first one. I think it is more of a grievance towards the guidelines”. But he added immediately thereafter that he was not sure about this. Ms. Martin then responded to Mr. Fallon on July 6, 2019 that he should explain to Ms. Jackson that her “grievance for the discipline was already filed, and that the grievance process is already underway”. The Employer thus took the position that the grievance raised nothing that had not already been raised in the May 12, 2019 grievance. Ms. Martin went on to say that no second grievance or stage 2 meeting was required to deal with Ms. Jackson’s complaints. Finally, she asked Mr. Fallon to “please advise”, inviting a response. There is no evidence that Mr. Fallon responded to this inquiry. No stage 2 meeting ever took place, and there is no evidence that the Union pursued one. In all of the circumstances, the Union’s words and conduct together conveyed to the Employer that the June 2, 2019 letter did not add to the May 12, 2019 grievance. Its course of conduct therefore did not amount to presenting a new grievance on Ms. Jackson’s behalf.
42Moreover, even if it did, the grievor and the Union did not engage in the stage 2 grievance procedures, and these must be completed before a matter can be arbitrated by the Board. By not pressing the matter in the face of stated and well-founded doubts by the Employer that the June 2, 2019 letter raised a new grievance or that a stage 2 meeting was required, the Union represented by its conduct that it did not intend to pursue the matter any further. In the face of the Union’s silence, the Employer reasonably treated the matter as closed, and made no attempt to resolve it through a stage 2 meeting. As the Board has previously ruled, grievance resolution stages prior to arbitration are mandatory: they cannot be by-passed without agreement of the parties, and failure to complete them deprives the Board of jurisdiction to arbitrate a grievance: Samsone, supra, at paragraphs 28 and 29. Having abandoned and induced the Employer to abandon a mandatory stage of the grievance resolution process, the Union could not now revive the matter and send it to arbitration, even if it were a new grievance.
43I find therefore that the June 2, 2019 letter does not constitute a distinct grievance, and that even if it did it would no longer be arbitrable.
44I turn finally to the Employer’s contention that the May 12, 2019 grievance does not put in issue of the length of the suspensions imposed on Ms. Jackson. The weight of evidence is clearly contrary to this position. The grievance was filed six days after the discipline was imposed. The grievance was taken up by the parties at the ADRC, where they discussed the length of the suspensions. Moreover, it was Ms. Martin’s view, expressed to Mr. Fallon in her July 6, 2019 email, that the June 2, 2019 letter appeared to be nothing more than a restatement of the issues raised in the May 12, 2019 grievance. Ms. Jackson’s June 2, 2019 letter details complaints that she had not been properly subject to progressive discipline when the Employer imposed the May 6, 2019 suspensions. While the May 12, 2019 Statement of Grievance does not provide any description of the circumstances giving rise to Ms. Jackson’s complaint, the Employer clearly understood it to have raised the issue of whether the suspensions were just and reasonable. Given the context of the grievance, the reference to Article 22 rather than Article 21 on the May 12, 2019 Grievance Form must be understood as a clerical error rather than an expression of intent to limit the scope of the grievance. I bear in mind, as should the parties, the longstanding guidance of Ontario Court of Appeal, repeatedly endorsed by this Board, that a grievance should be liberally construed so that the real complaint can be dealt with: Blouin Drywall, supra; Labanowicz, supra, at para 19, and the decisions cited therein.
45I remain seized.
Dated at Toronto, Ontario this 15th day of September, 2020.