HomeMy WebLinkAbout1996-0908.Pezzutti.97-11-17 Decisioncrown
GRIEVANCE
SETTLEMENT
BOARD
DE la
DE
COMMISSION
DES GRIEFS
DE
: (416) 326- 1388
416 326-1396
GSB # 908/96
OPSEU # 96B887
IN the MATTER OF AN ARBITRATION
Under
THE CROW EMPLOYEES COLLECTIVE BARGAINING act
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Pezzutti)
Grievor and
the Crown in Right of Ontario
(Ministry of Transportation)
Employer
BEFORE
FOR the
UNION
FOR TEE EMPLOYER
R.J. Roberts Vice-Chair
G. Leeb
Grievance Officer
Ontario Public Service Employees Union
E. McKnight
Staff Relations Advisor
Ministry of Transportation
HEARING November 4, 1997
1
AWARD
On June 19,1996, the grievor, Ms. Isabel Pezzuti, filed a grievance claiming that she did
not receive 16 weeks’ notice of termination of her contract, as required by the Employment
Standards Act, because the Employer had included in its calculation of her notice period the five
weeks of the OPS strike that ended on March 3 1,1996. It appeared to be common ground that
during the period
of the strike, no work was available to the grievor.
On July 25, 1996, the Grievance Settlement Board issued its award in Re Maxwell and
Ministry of Citizenship, culture and Recreation (1996), G.S.B. No. 95 1/96 (Roberts), in which it
was held that an employee in similar circumstances to the grievor was entitled to “16 weeks of
wages in lieu of notice, including 2% in lieu of benefits.” Id., at 6. On the basis of this award, the
union claimed that the grievor was entitled to the same measure of compensation for the five
weeks
of work in lieu of notice that she missed because of the strike.
The employer did not dispute the merits of this claim. Rather, the employer submitted
that the claim was barred because of undue delay. Apparently, Ms. Pezzuti’s grievance was not
brought to the attention of responsible persons at Management Board Secretariat until a week or
so before the hearing. Counsel for the Employer noted that following the strike, the parties had
put into place an elaborate procedure to give the employer notice of all of its liabilities. Because
I
2
the union had not followed this procedure and come forward with Ms. Pezzuti’s grievance within
a short time after the issuance
of the Maxwell award, it was submitted, the grievance must be
rejected as untimely.
In support of this submission, counsel for the employer referred to Re Union Grievance
and Management Board Secretariat (1997), G.S.B. No. 70/97 (Fisher). In that case, the learned
Vice Chair stated, “Certainty, in labour relations, is a very important virtue, especially when it
come to the implementation of a negotiated settlement.” Id., at 4. This meant, counsel for the
employer submitted, that there was a point in time by which the employer was entitled to know
its total liability. That point had passed before Ms. Pezzuti’s grievance was brought to the
attention of Management Board.
There may well be cases in which a grievance might be barred by time limits, the
equitable doctrine of laches, and the like. Here, however, there would appear to be insufficient
evidence
to support such a claim. The grievance was filed in a timely manner, on June 19, 1996.
According to the submission of counsel for the union, it was given an OPSEU file number,
signifying that it went through an expedited grievance process negotiated between Management
Board Secretariat and the union. Information supplied to counsel for the union,
I was informed,
indicated that shortly after Maxwell issued, the union forwarded the grievor’s name to
Management Board as a person who should be paid in accordance with that award.
On this record,
I cannot conclude that the apparent error that caused the grievance herein
3
to fall by the wayside until now was that of the union and not the employer. As a result, the claim
of undue delay that was made by the employer cannot be sustained. The grievor must be paid
five (5) weeks of wages in lieu of notice, including 2% in lieu of benefits, in accordance with the
Maxwell award.
Dated at Toronto, Ontario,
this 17th day of November, 1997.