Timelines in collective agreements

From time to time stewards are reminded that they need to pay attention to the timelines in the collective agreement. It's rare for a collective agreement not to set out clearly the number of days within which a grievance must be filed or advanced to the next step.

Where a provision contains the word "must" or sets out a consequence for failure to meet a timeline (for example, that the grievance "will be deemed to have been abandoned" or some such other phrase), then that's an indication that the time limits in your collective agreement may well be "mandatory" as opposed to "permissive". In such a situation, one needs to pay particular attention and ensure that there is compliance by everyone, including the employer.

The British Columbia Labour Code gives arbitrators specific authority to relieve against time limits. The usual scenario is that an employer will raise a preliminary objection at arbitration (rarely is this a union's objection) that the grievance should be dismissed because it is out of time. The arbitrator then applies the tests that have been developed to determine whether she should exercise her jurisdiction under the Code.

BC arbitrators are usually referred to the often-quoted decision of Arbitrator Munroe in Pacific Forest Products Ltd. (Sooke Logging Division) (1984), 17 L.A.C. (3d) 435 for the seven "relevant" considerations that are the basis for the determination:

(a) the degree of force with which the parties have given contractual expression to the time-limits;
(b) whether the breach of the time-limits was in the early or late stages of the grievance procedure;
(c) the length of the delay;
(d) whether the applicant for relief has a reasonable explanation for the delay;
(e) the nature of the grievance, i.e. the impact on the grievor of a refusal to grant relief against the time-limits;
(f) whether the employer would suffer prejudice by the granting of such relief, and
(g) any other factors peculiar to the circumstances at hand.

Arbitrator Jim Dorsey in a September 2008 BCTF and BCPSEA [2008] B.C.C.A.A.A No. 131 provides a good review of the jurisprudence on this topic.