Time Limits for Referring Construction Industry Grievances to the OLRB
Wednesday, November 16, 2011
TIME LIMITS FOR REFERRING CONSTRUCTION INDUSTRY
GRIEVANCES TO ARBITRATION PURSUANT TO SECTION 133
OF THE LABOUR RELATIONS ACT TO THE OLRB
We are writing to you to update you on a recent decision of the Divisional Court in which it decided that the Ontario Labour Relations Board has no jurisdiction to extend the time limits to refer a grievance to arbitration. The result was that a grievance in which the Union was successful and that was worth $400,000.00 in damages, was dismissed.
The facts of the case are fairly straight forward. The UA filed a grievance against the Great Essex County District School Board (the “School Board”) in July, 2004. It was not until four and half months later that the Union referred the matter to arbitration. The case has no details about what happened during the four months but the key was there was no written agreement to extend the time limits to refer the matter to Arbitration. As one part of its defence, the School Board claimed that the referral to Arbitration was untimely (the collective agreement said that the grievance had to be referred within 14 days).
The grievance came before the Board and, after a number of lengthy proceedings including a related employer application, the Board found that it had the jurisdiction to hear the grievance and found in favour of the Union. The Board’s decision was consistent with a number of Board decisions where the Board found it had jurisdiction to accept a grievance referral regardless of the time limits for referring a grievance to arbitration under a collective agreement.
The School Board then sought judicial review of the Board’s decision. As noted above, on judicial review the Divisional Court held that the Board, under section 133 of the Labour Relations Act did not have discretion to accept late or untimely referrals. The result was that the grievance, in which the Union had been successful before the Board, was dismissed.
The practical consequences for construction trade unions are that it is imperative that you abide by the time limits for referring grievances to arbitration under your collective agreement. While each collective agreement varies, and the specific language of each collective agreement will determine the result in each case, if a Union refers a grievance to arbitration beyond the time limits in a collective agreement, the result may well be that an otherwise valid and successful grievance will be dismissed.
Going forward, there are generally four ways to address this issue:
- Ensure that all grievances are referred to arbitration within the time limits set out in your collective agreement;
- If more time is needed, obtain the consent of the employer, and possibly employer bargaining agency, in writing to extend the time limits or place the grievance in abeyance temporarily;
- If consent cannot be obtained, refer the grievance to arbitration but ask for a hearing date beyond the fourteen days provided for in the Act; and,
- Address the matter as a long-term bargaining objective in the next round of bargaining. This can be done in a number of ways including extending the time limits and/or providing that a failure to abide by the time limits will not invalidate a grievance or render it inarbitrable.