Grievance time limit provisions – do they work?
There are sound labour relations policy reasons for having a strong time limit provision in a collective agreement. A time limit requires the union to administer the collective agreement in a prompt manner, and prevents it from resurrecting old disputes. When a time limit expires and no grievance is filed, an employer is entitled to assume that the union will not challenge its decision.
Despite these strong policy considerations, the Labour Relations Code also expressly gives arbitrators the power to relieve against time limits on just and reasonable terms.
Arbitrator Kinzie’s recent decision BC Safety Authority v. BCGSEU, 2015 BCCAAA No. 109 is a good example of the type of case where an arbitrator will relieve against mandatory time limits. The grievor applied for a posted vacancy for a leadership position. He believed this was it chance to advance within the organization. On June 6, 2014, the employer informed him that he was not the successful candidate. The grievor took the news hard.
Over the following weeks the grievor met with management several more times to discuss the employer’s decision. He lobbied unsuccessfully for a different result. The grievor also told management on several occasions that he was considering filing a grievance. The collective agreement contained a 30 day time limit in which to do so.
The union did not file a grievance until seventeen days past the deadline.
Arbitrators exercise their statutory discretion to relieve against time limits by considering:
- whether the time limit is mandatory;
- the stage of the grievance procedure at which the breach occurred;
- the length of the delay;
- whether the union has a reasonable explanation for the delay;
- the nature of the grievance, and the impact on the grievor of a refusal to hear the grievance;
- whether the employer would suffer prejudice if the grievance were to proceed; and
- any other unique circumstances of the grievance.
Key to Arbitrator Kinzie’s decision in the BC Safety Authority case was that the employer was not taken by surprise and would suffer no prejudice by the delay. The grievor convened several meetings with his employer to lobby it to reconsider its decision. When his lobbying efforts failed, he grieved. The Arbitrator also noted that the employer’s decision not to award the grievor the job had a profound effect upon him, which favoured granting relief. In his conclusion, Arbitrator Kinzie wrote that “substance, not form, should prevail.”
The facts of this case stand in stark contrast to other decisions where grievances have been dismissed due to time limit breaches. For example, in Aramark Canada Ltd. v. Unite Here, Local 40, 2013 BCCAAA No. 34, Arbitrator McConchie dismissed a termination grievance on the basis that it was filed seven months late. In Aramark Canada Ltd. v. Unite Here, Local 40, 2012 BCCAAA No. 25, Arbitrator Hall dismissed a policy grievance that was referred to arbitration 3.5 months late. In each case, the employer was able to show that it was prejudiced by the union’s delay.
While the factors set out above will determine whether an arbitrator will exercise their jurisdiction to relieve against the breach of a time limit, there are steps an employer can take to increase the likelihood that a time limit will be enforced:
- Negotiate a strong and mandatory time limit in the collective agreement, and specify the consequence of a breach.
- Tell the union if its grievance is late. Arbitrators look dimly on timeliness objections that are not raised promptly.
- Write the union to put it on notice that the employer now insists that the time limit provision be respected. A time limit that is routinely ignored is unlikely to be enforceable.