Protect You Membership Against Jurisdictional Objections
Successful Defence of Section 49 Timeline Dispute
Legislated and collective agreement timelines are a powerful instrument, equally available to both the Union and Employer. Let’s discuss the applicability of those timelines with respect to expedited hearings as per section 49 of the Labour Relations Act (“Act”) in Ontario.
Imagine being provided notice that a member was terminated, however it is a complicated case requiring a review by your legal representative and/or you may need to bring the matter to the membership for approval to proceed to arbitration. In the meantime, the clock has started ticking and you’ve got strict timelines set out in your collective agreement as well as in your labour relations legislation.
As is your right in Ontario, you’re planning on requesting an expedited hearing under section 49 of the Act which stipulates the case must be heard in front of an arbitrator within twenty-one (21) days of filing the application. However, you need time to review the grievance, chat with the Grievor and as mentioned, discuss with legal. You decide to hold off on your request for expedited hearing. Months go by and now that you’ve finally had the chance to prepare the file, you’ve filed the section 49 request and are in the process of proceeding to the first day of the hearing. However, before making it to the hearing, the Employer raises a preliminary objection on the basis of timeliness, that the case cannot be heard, alleging that the clock has run out and the Union has lost its opportunity to have its case heard. Absolutely devastating.
Although an extremely powerful tool for the Union and its membership, a section 49 hearing comes with unique considerations. Foremost, you only have 21 days to prepare for the hearing. Without experienced labour counsel, who are able to ask the right questions and fully prepare under these stringent timelines, this can be a dissuading situation to bare. Moreover, with respect to timeliness, a failure to abide by the strict timelines established by the Act can result in a complete jurisdictional bar to proceeding. That being said, as mentioned above, when used strategically it can be a powerful tool in situations where the Employer is acting unreasonably, when you have egregious discipline, or where the Employer refuses to cooperate with the Union with respect to mutually agreeable dates, arbitrators, etc.
Section 49 of the Act provides that a request must be made either 1) after the grievance procedure under the collective agreement has been exhausted or 2) after 14 days have elapsed since the grievance was first brought to the attention of the Union, whichever first occurs. Moreover, it goes on to add that no request shall be made beyond the time, if any, stipulated in or permitted under the collective agreement for referring a grievance to arbitration. Effectively, if the Union misses the deadlines set out in their Collective Agreement or the 14 days under the Act, they have waived their right to an expedited hearing.
What Are My Options?
The case law on the matter is well settled and has been for years. If the Union fails to meet the deadline, the case is dismissed. The seminal case contrary to our position was summarized in paragraph 35 of the decision:
35 In Service Employees International Union, Local 204 v. Leisureworld Nursing Homes Ltd. 1997,…. the Ontario Divisional Court concluded that the words “in the grievance procedure” in section 48(16) of the Act could not be interpreted to also grant relief form the time limits for a referral to arbitration. The Court of Appeal in dismissing the Union’s appeal wrote as follows:
We agree with the decision of the Divisional Court and with their reasons for it. It is clear from the context afforded by several provision in the Labour Relations Act that the legislative [sic] has intentionally drawn the distinction between the “grievance procedure” and “arbitration procedure” and accordingly, in our view did not intend to include steps in arbitration procedure in s.48(16).
In other words, if the collective agreement gives you 14 days to refer the matter to arbitration, and you fail adhere to that timeline, your referral is untimely, and you can kiss your case goodbye.
That being said, we both know the law is never so clear cut. There are always exceptions… and we will find them. A similar fact pattern was seen in a case between the Amalgamated Transit Union and the City of Hamilton, where due to a number of variables, the timelines as set out in the collective agreement with respect to referral to arbitration were allegedly not followed and the Employer attempted to use aforementioned “settled” case law to toss out the case.
However, in that case the local Union president was extremely vigilant. He always kept great notes, he had extensive practical experience, and had attended numerous educational seminars. He was able to provide us with an extensive review of the bargaining history between the parties, all the past practices with respect the grievance and arbitration procedure, as well as crystal clear and unshakable testimony on the stand.
As we were the lawyers on the file, we were able to find vulnerability in the armor of that well “settled” case law. We used an exception to establish a past practice with respect to referral to arbitration and utilize the principle of estoppel as a shield to protect the Union from the Employer’s objections.
Needless to say, after a day of heated arguments, the arbitrator awarded in the Union’s favour, dismissing the Employer’s preliminary objection creating a strong legal precedent in favour of all Unions.
If you have any questions with respect to your own collective agreement timelines or clarity with respect to your relevant labour relations legislation, please do not hesitate to contact our office. Additionally, if you are interested in taking the same educational seminars attended by the aforementioned president, we provide a multi-day seminar on understanding the relevant legislation, your collective agreement, the grievance and arbitration procedure, best practices to avoid preliminary objections at arbitration, as well as how to negotiate language in your collective agreement to hold the Employer accountable to grievance procedure timelines.
The content in this post is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Watson Labour Lawyers does not warrant or guarantee the quality, accuracy or completeness of any information contained in this post.