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
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
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
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
the length of the delay;
whether the union has a reasonable explanation for the
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
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
Tell the union if its grievance is late. Arbitrators look
dimly on timeliness objections that are not raised
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
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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