IN THE MATTER OF AN ARBITRATION BETWEEN: INTERIM PLACE AND OPSEU GRIEVANCE OF L. REYES BEFORE: SUSAN L. STEWART ARBITRATOR APPEARANCES FOR THE UNION: FOR THE EMPLOYER: J. MICALLEF, COUNSEL S. KRUTH, COUNSEL THE HEARING IN THIS MATTER WAS HELD IN TORONTO, ONTARIO ON OCTOBER 3, 2018
2 AWARD 1. The grievance before me was filed on December 4, 2017, on behalf of Ms. L. Reyes. The grievance alleges improper termination. The employment of Ms. Reyes was terminated by letter dated November 21, 2017. Her termination followed a letter from her doctor dated November 16, 2017, advising that he considered Ms. Reyes to be permanently disabled from engaging in gainful employment. 2. The grievance was referred to arbitration on January 17, 2018. It is the position of the Employer that the grievance was not referred to arbitration in a timely manner and that, in accordance with the provisions of the Collective Agreement, it must be deemed to have been abandoned and therefore dismissed. It is the Employer s position that the grievance would have had to have been referred to arbitration by January 3, 2018, in order to comply with the time limits of the Collective Agreement. It was the Union s position that the last date for a timely referral was January 4, 2018. However, there was no dispute that the grievance was not referred to arbitration in accordance with the timelines prescribed by the Collective Agreement. There was no written agreement to extend the time limits.
3 3. The Collective agreement contains the following provisions under the heading Time Limits : 9.04 The time limits fixed in this Article are mandatory but may be extended by the mutual consent of both parties in writing. 9.05 If any step of the grievance procedure has not been processed by the Agency within the time limits as prescribed herein, the grievance shall automatically be advanced to the next step. Should the Union fail to process the grievance or file for Arbitration within the time limits prescribed herein, the grievance shall be deemed to have been abandoned and Section 48, subsection 16 of the OLRA shall not apply. 4. Section 48(16) of the Ontario Labour Relations Act provides as follows: Extension of time Except where a collective agreement states that this subsection does not apply, an arbitrator or arbitration board may extend the time for the taking of any step in the grievance procedure under a collective agreement, despite the expiration of the time, where the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension. 5. In support of the Employer s position Ms. Kruth referred me to an award between these parties dealing with two other grievances filed on behalf of Ms. Reyes, Interim Place and OPSEU (Reyes), unreported decision dated August 20, 2018, (Bernhardt), in which the timeliness of the grievances was challenged. As in this case, there was no dispute in that case that the grievances were not referred to arbitration in a timely
4 manner. Noting the provisions of Article 9, at paragraph 30 of that award Arbitrator Bernhardt concluded as follows: I do not have authority to change the time limits, they were breached, there was no mutual agreement to extend them, and as determined by Article 9 these grievances were abandoned and cannot proceed. 6. In her submissions, Ms. Micallef noted that the delay in this instance was not nearly of the magnitude of delay in the case before Arbitrator Bernhardt. She also emphasized that the period in issue coincided with the holiday period and was relatively brief. There was no apparent prejudice to the Employer. Most fundamentally, however, Ms. Micallef noted that this case involves a dismissal, a matter of extreme significance, with an impact on benefits that has had serious implications for Ms. Reyes. Accordingly, she submitted, the grievance should be considered on its merits. 7. The issue in this case is my authority to consider the merits of the grievance. I am bound by the terms of the Collective Agreement. The terms of the Collective Agreement are abundantly clear with respect to their application to the facts before me. The grievance did not proceed to arbitration in a timely manner. There was no written agreement between the parties to extend time limits. I have no authority to extend time limits. In accordance with Article 9, this grievance must be considered to be abandoned. While Ms. Micallef s able submissions regarding the
5 grievor s circumstances certainly invoke sympathy, they do not and cannot provide a basis for my authority to consider the merits of the grievance. 8. I note, parenthetically, that Ms. Kruth also advanced an argument that the grievance must be dismissed pursuant to Article 11.07 of the Collective Agreement. Given my acceptance of the Employer s argument with respect to Article 9, there is no need for me to address that argument. For the reasons set out herein, I hereby uphold the Employer s preliminary objection and dismiss the grievance. Dated at Toronto, this 4 th day of October, 2018 S.L. Stewart - Arbitrator