GSB# 2019-2330
UNION# 2019-0270-0005
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Larson)
Union
- and -
The Crown in Right of Ontario (Ministry of Transportation)
Employer
BEFORE
Diane Gee
Arbitrator
FOR THE UNION
Isaac Handley Ontario Public Service Employees Union Grievance Officer
FOR THE EMPLOYER
George Parris Treasury Board Secretariat Legal Services Branch Counsel
HEARING DATE
May 21, 2021
DECISION
1This is a grievance filed on behalf of William Larson in respect of which the Employer has brought a motion that the matter be dismissed on the basis that it was not filed in a timely manner. This matter was referred to the Grievance Settlement Board pursuant to section 22.16 of the Collective Agreement.
2The Collective Agreement requires a grievance to be filed “within 30 days after the circumstances giving rise to the complaint have occurred.” The most recent event relied upon in support of this grievance occurred on June 17, 2018. The grievance was filed on November 12, 2019; no less than 14 months after the deadline provided for in the Collective Agreement.
3The 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.
4The 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:
a. The nature of the grievance
b. Whether the delay occurred in initially launching the grievance or at some later stage
c. Whether the grievor was responsible for the delay
d. The reasons for the delay
e. The length of the delay
i. Whether the Employer could reasonably have assumed the grievance had been abandoned
5The grievance alleges harassment and bullying that took place from 2004 to 2009 and again in 2017 and 2018. The delay occurred in initially launching the grievance which is the most problematic stage for delay to occur as it means the Employer is not even on notice of the allegations. The reasons for the delay are stated to be that the grievor was concerned, if he were to complain, that his job prospects or job security would suffer. The grievor’s stated reason for not filing a timely grievance is not consistent with the fact that he complained to management following each incident that is particularized. The delay is 14 months; which is a considerable length of time far in excess of the delay in respect of which arbitrators might grant an extension of time. Finally, on the facts of this case, where the grievor did in fact complain about the events and then did not file a grievance, the Employer could reasonably have assumed no grievance would be filed.
6For the foregoing reasons, I decline to exercise my discretion to extend the time limits for the filing of this grievance. The grievance is dismissed.
Dated at Toronto, Ontario, this 31st day of May, 2021.