HomeMy WebLinkAbout1997-1956.Twomey.99-12-16 DecisionONTARIOEMPLOYÉS DE LA COURONNE
CROWN EMPLOYEESDE L’ONTARIO
GRIEVANCECOMMISSION DE
SETTLEMENTRÈGLEMENT
BOARDDES GRIEFS
180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TÉLEPHONE,(416) 326-1388
180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G IZ8FACSIMILE/TELECOPIE:(416) 326-1396
GSB # 1956/97
OPSEU # 98B043
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Twomey)
Grievor
- and -
The Crown in Right of Ontario
(Niagara Parks Commission)
Employer
BEFORERichard BrownVice Chair
FOR THE Don Martin
GRIEVORGrievance Officer
Ontario Public Service Employees Union
FOR THE Carla Zabek
EMPLOYER Counsel
Hicks Morley Hamilton Stewart Storie
Barristers & Solicitors
HEARING December 14, 1999
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Kevin Twomey contends he is entitled to a salary “top-up” for a parental leave taken from
December 1, 1991 to February 24, 1992. The grievance was not filed until October 17, 1997.
The employer argues it should be dismissed as untimely.
I
In 1991 when the leave was taken, the employer was not paying top-up to employees taking
parental leave. This policy changed in 1994 when the employer elected to follow a Management
Board Secretariat directive requiring a “top-up” for parental leave in the Ontario Public Service
(OPS). The directive was a response to a human rights complaint challenging the previous OPS
practice of paying a “top-up” for adoption leave but not for parental leave. The directive
prompted the employer to begin paying a “top-up” for both parental leave and adoption leave.
Counsel for the employer contends its prior practice of not paying a “top-up” for either
adoption or parental leave was not a violation of the Human Rights Code, even if the Code
was violated by the pre-1994 practice in the OPS. Argument on this issue awaits a ruling on the
timeliness objection.
Mr. Twomey filed a grievance in 1997 shortly after learning his brother-in-law, an
employee of the Ministry of Transport, received a “top-up” for parental leave.
II
Article 13 of the collective agreement states:
Any Employee who believes he/she has a complaint or difference with the Employer
shall first discuss the complaint or difference with his or she Supervisor within twenty
(20) days of first becoming aware of the complaint or difference.
The employer contends the grievance is untimely because it was filed more than twenty
days after the grievor knew he had not been paid a “top-up”. According to the union, time did
not begin to run until the grievor spoke to his brother-in-law in 1997.
In 1991, the grievor knew he had not been paid a “top-up”. In other words, he was
then fully aware of the factual basis for his grievance. What he learned in 1997 was that there
might be a legal argument that a “top-up was owing. In my view, time began to run when the
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grievor learned of the facts giving rise to his grievance, not when he learned of subsequent legal
developments. The contrary conclusion would mean a grievor could wait indefinitely before
making inquiries about the relevant law. I conclude Mr. Twomey did not file his grievance within
the time limit specified by the agreement.
III
The only remaining question is whether I should extend the time limit by utilizing the discretionary
power conferred upon me by s. 48(16) of the Labour Relations Act, 1995. Under that section,
a time limit may be extended only if there are reasonable grounds for an extension and it would
not cause substantial prejudice to the party opposite.
The factors to be considered in determining whether there are reasonable grounds for
an extension were identified by Mr. Burkett in Becker Milk Co. and Teamsters Union (1978),
19 L.A.C. (2d) 217:
These are: (i) the reason for the delay given by the offending party; (ii) the length of the
delay; and (iii) the nature of the grievance. If the offending party satisfies the arbitrator,
notwithstanding the delay, that it acted with due diligence, then if there has been no
prejudice the arbitrator should exercise his discretion in favour of extending the time-
limits. If, however, the offending party has been negligent or otherwise to blame for the
delay, either in whole or in part, the arbitrator must nevertheless consider the second
and third factors referred to above in deciding whether reasonable grounds exist for an
extension of the time limits. (page 220).
These factors were considered in Bakery Glaco and Canadian Association of
Automobile workers (1991), 21 L.A.C. (4th) 265 (Warrian) where a discharge grievance was
filed four and one-half months late and the union offered no explanation for the delay. Given the
length of the delay and the absence of any excuse or justification, Arbitrator Warrian refused to
extend the contractual limitation period, even though the grievor had been discharged.
The grounds for claiming an extension in the instant case are much weaker than those in
Bakery Glaco, because the grievor has not been discharged and he delayed more than five
years in filing his grievance. Accordingly, I decline to extend the time limit.
The grievance is dismissed.
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Dated at Toronto, Ontario this 16th day of December, 1999.
Richard Brown, Vice-Chair