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HomeMy WebLinkAbout1984-0575.Schmid.85-02-05IN.TH,E MATTER OF AN ARBITRATION :. Under _ THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE-GRIEVANCE SETTLEMENT BOARD Between: OPSEU (d. F. Schmid) Before: r;:‘: For the Grievor: For the Employer: Hearing: November 27, 1984 - and - * ,,I. The Crown in Right of ,Ontario, (Ministry of Transportation and Communications) Grievor .- Employer R. J., Roberts Vice Ch'airma,n I,. J. Thomson Member A. G. Stapleton' Member M. Ball Counsel I Cornish & Associates D. W. Brown, Q.C. Counsel Crown Law Office Civil ' . ! c. -1 2: ' DECISICN This arbitration arises out of a unique series of events, involving a withdrawal of the grievance which was originally filed, and the subsequent filing of a second grievance claiming interest upon a principal sum which had been paid by the Ministry in the hope of settling the original matter. For reasons which follow we conclude that this second grievance must be dismissed. We do not have jurisdiction under this grievance to award to the grievor the requested relief. Since 1974, the grievor has been a Traffic Technician III with the Ministry. In the course of performing his duties, the grievor was required to travel from job site to job site. As a result, he incurred considerable travelling expenses, which, from time to time; were reimbursed to him by the Ministry. It seems that in 1977-78, an award was issued by the Grievance Settlement Board, which upset what had theretofore been cr.,. the Ministry's established policy with respect to payment of compensation for week-end travelling costs. This policy had been so well established that it was set forth in a policy manual which the Ministry was using. On September 21, 1979, Mr. T. G. Smith, the Regional Director, Central Region, sent the following letter to Mr. D. M. Stewart, President, Local 536 of the Union: ;. . I .’ ‘,;. I CJ (’ ; . . ..I-.. -. 3. Further to our exchange of correspondence regarding compensation of week-end travelling costs for employees who remain on the job site during the week, we have now established that employees affected should.have .received the appropriate mile- age (kilometrage) rate both in travelling to the 1 job site on Monday and,return to their Headquarters at the end of the week. All employees Cl1 be so advised through their supervisors and those affected will be compensated accordingly henceforth; and in addition we will entertain retro-active claims back to May 1, 1978. Employees who chose to commute daily from their Headquarters to.the job site are not affected, as utilization of the week-end commuting allowance is and was appropriate for them, and will, for the time being, be' continued to be used for cost calculation purposes. : T. G. Smith, Regional Director; Essentially, this letter constituted notice to the .Union that the Ministry was changing. its policy to accord~.with the award and that the Ministry would entertain claims for retro-active compensation dating back to May 1;~ 1978. The evidence at the hearing tended to indicate that Mr. Stewart advised the grievor of the contents of the above : letter: however, for $ome unexplained reason,. the grievor did ,- not file a claim for reto-active compensation. Worse, and again for some unexplained reason, the grievor continued to be compen- . . , sated for week-end traveiling costs according' to the old policy and not the tiew~one which had been announced by Mr. Smith. This -. situation continued until January 3, 1984,. when the error with respect to the grievor was finally addressed by the Ministry At that time, the Ministry commenced paying mileage to the grievor according to the new policy: however, the Ministry did not compensate the grievor for the accumulated difference between the former rate and the rate that had been announced by Mr. Smith in his letter dated September 21, 1979. On February 9, 1984, the grievor filed a grievance claiming retro-active ( payment of this sum, with interest, to January 1, 1977. Initially, the Ministry took the position that the grievor did not have any right to file this grievance. Apparently, this position was based upon a contention that the grievance was filed out of time. On Februaiy 16, Mr. 3. Pullen, the Traffic Field Supervisor, sent to the grievor the following letter: Re: Grievance .Dated February 9, 1984 ,~ t. : c., .’ / This is in response to your grievance filed at Stage One of the procedure in which you grieve that you have been dealt with in a manner that is contrary to Article 22 of the Collective Agreement. As of January 3, 1964, we have been paying you mileage from your headquarters, north of Norland, to the Coboconk Patrol Yard in accordance with the Collective Agreement. Thus, in our opinion, there is no basis upon which you can now grieve. Accordingly your grievance is denied. John Pullen, Traffic Field Supervisor. . (II Mr. Pullen apparently took the view that because the Ministry had begun paying the grievor.properly as of January 3, there _ was no basis upon which the griever could now grieve. ;i .~ Eventually, however, the parties reached a degree of accommodation.,. The Mi,nistry offered 'to.pay.-to the, grievor an amount which represented'the principal sum of-the difference between the two rates of reimbursement for mileage, .retro-active to May 1, 1978. On March 21, 1984, Mr. E. J. 'McCabe, .the Regional (1. Director, sent to the grievor the following 1ette.r: - _ Re: Grievance L 'Article 22 and Commutinq Articles c .-I _, Since the-stage 2 meeting for the above-noted grievance, . I have had an opportunity~to consider your position and the representations made on your behalf by Mr. D. M. Stewart. I have determined that you. should be compensated for the difference between the formerly claimed weekend commuting allowance and the 'applicable mileage rate.for the period May 1, 1978 to-January 9, 1984. '.. Accordingly, please submit your expense .accounts for this period to your supervisor for.payment. Pay- ment will be made in accordance with the date of occurrence and thh.:ddistance, travelled as indicated .on,.your expense accounts. : It is our position that there is no"entitlement to interest on the monies that will be paid. '-. : F ‘E. J. McCabe, Regional Director,. :.I It was made clear that no interest was$,,to be paid upon these monies. _ I ~., ’ , ,-. 6.’ ’ It seems to be difficult to characterize what happened~ next. Apparently, there were further discussions between the parties which led to an agreement by the grievor to withdraw his grievance upon receiving payment of the principal sum that had been offered in Mr. McCabe's letter of March 21. On April 16, the grievor submitted the expense account that Mr. McCabe had requested in his letter dated March 21. The total amount of retro-active compensation that was due to the grievor per this expense account was $6,405.15. At the same time, however, I the grievor submitted a covering letter which stated that upon receipt of the money he would withdraw the grievance, but "without prejudice to any remaining rights." At the hearing, the grievor stated that when he wrote this passage, he was referring to his right to pursue his claim for interest. At some point in mid-to-late May, 1984, the grievor received from the Ministry a cheque for $6,405'.15. Thereafter, on June 4, 1984, the grievor filed a second grievance in which c;, 'i he claimed interest O1compounded from May 1, 1978 to January 9, 1984 inclusive." In due course, this hearing followed. At the hearing, it became apparent that the grievor's claim for interest in the above grievance raised at least two questions of a preliminary nature: the first question was whether the accommodation which resulted in the withdrawal of the first grievance barred the grievor from filing the second grievance. The second issue was whether, given the nature of the relief ._ 7. that was requested, the second grievancetwas filed out of time. . These questions will be dealt with seriatim hereinbelow: With respect to the.first question, the Ministry submitted that when the grievor accepted the Ministry's cheque in the full knowledge that the Ministry was'refusing to pay interest and, ._ thereupon withdrew his grievance , there was a:binding settlement : of all issues that,were raised in that grievance, and as a result, , : the grievor was barred from filing the grievance leading to the present proceeding. It appears, however, that upon the facts ,' il - - . of the present case, this submission cannot‘be sustained. . . . _ , - If a settlement is to bar one party or the other from w raising an issue in a subsequent grievance, there must'be some clear indication that,~t,his was the intentions of the parties. .- .I As was stated by,.Professor Brandt in Re Snider and Ministsry, : ._ ~.3. of Transportation and Communications (19841, G.S.B.' 509183: ..’ ,~ - Ana.lysed'in terms.of the doctrine of res judicata, arbitrators have required some clear indication that the parties have settled* an issue in a:way which they intend to be binding on them in the'future. Thus even when a grievance has been settled by the parties in the grievance procedure, that settlement, whether on a "without prejudice!' basis or.not, will not nec- essarily bind the parties and constitute, the issue 'res judi&ta between t,hem.(Lake Ontario Portland Cement Company Limited (1963!14 L.A.C. 37.1 For such to be the case'the minutes .of settlement must clearly so provide. (See Re American Motors (Canada) Limited (1964) 14 L.A;C. 422): - In a‘n,uhiber of cases i.thas been held that withdrawal or abandonment of a grievance, without m*ore, is not sufficient to prevent a subsequent grievance from being filed. (See Re County of Paintearth (1973) I 8 L.A.C. (2d) 225 (Larson); ReCil 13 L.A.C. (2d) 213 (Hinnegan)), supportable on either the doctrine of res judicata 3 L:A.C1'(2d) 429 (&&man); Re.Gibraltar Mines (1975) ty of London (1976) '. iese results are i (: “‘. -. or promissory estoppel. The act of withdrawal or abandonment of a grievance is not a representation which is sufficiently unambiguous to create an estoppel; nor does it permit any conclusion that the parties are prepared to treat the matter as having been resolved or settled in such a way as to bind them in the future. . . . Id. at pp. 9-10. - Regardless of whether the alleged bar is based upon an assertion of res judicata or promissory estoppel, there must be an un- ambiguous indication that the parties intended that the issue in question should not be raised in a subsequent grievance. On the facts of the present case there was no such unambiguous indication. In fact, the circumstances under which the accommodation was reached suggested that precisely the opposite was true. In his letter dated April 16, the grievor gave the Ministry written notice that he did not regard the act of accepting the principle sum in return for withdrawal of his grievance to constitute a complete settlement of all issues between them. In these circumstances, the grievor"s right to file a second grievance raising the issue of interest upon the princiml sum was unimpaired by the settlement. Given the nature of the claim, however, it must be concluded that the grievance was filed out of time. Where, as here, the violation of the Collective Agreement is of a continuing nature, the time limits for initiating a grievance assume a particular significance. As was stated in Brown and Beatty, Canadian Labour Arbitration (2nd. -ed.), "The relief or damages awarded retro-actively in such circumstances may be limited by ,” ,,~. 3 . r 9. the time limit. Thus, where a grievance claimed improper payment and the grievance was allowed, the award limited the damages recovered to five full'tiorking dkys prior to the filing of the grievance, which was the applicable time limit for initiating the grievance." Id. at p. 96. In'short, conduct engaged in before the commencement of the time limit for-f.iling the grievance ~ in question generally will not give rise to a right of recovery in the grievor. Limiting the recovery of relief inthis way where the violation of the agreement is of a continuing nature, appears to be in line with the acknowledged policies~ underlying the applicition in a similarmanner of statutes 0f:limitations in civil actions~. 'These policies "are designed to'safeguard the interests of the defeiidant.in two-ways;. First,~ they seek to protect his interest in'at some' time being!able.to rely on,the fact that he no longer wills have'.to preserve or seek out evidence to defend the claims against him, Secondly;'theylgrant him protection 'from insecurity,'which may be economic or psychological, or both; at some point in time he ought to be made secure in his reasonable expectation that contingent liabilities will no longer be asserted by. legal action to disrupt his,.finances and affect his business and social relations." G.D. Watson. Amendment of Proceedings after Limitation Periods (1975);53~ Can. Bar Review 237; at pp. 272-3: .' ,' In the present case, the continuing violation of the : _ I J- - 10. ' Collective Agreement which gave rise to the grievor's claim for interest ceased long before the commencement of the limitations period for the grievance at hand. Accordingly, on a strict applicatic of the time limits, this grievance was filed out of time. For this reason, this Board would lack jurisdiction to entertain the claim for interest which constitutes the subject matter of the grievance. Counsel for the grievor submitted that a strict applicatior c- of the time limits should not be made in this case, that it should make no difference whether the grievor filed a second grievance claiming the interest or continued pressing that portion of his first grievance which related to this claim. It seems, however, that a difference should be made, and in fact, was made by the grievor. The facts indicated that if the grievor had not withdrawn his first grievance, he would not have obtained from the Ministry payment of the principle sum. It would appear to defeat the nature of the accommodatioh that was struck between the parties ! if the second grievance were treated by this Board as a mere continuation of the first. Moreover, it seems highly likely that even if this submission of counsel were to have been accepted by the Board, the grievance still would have to be regarded as out of time. It will be recalled that the violation of the Collective Agreement ended as of January 3, 1984. The first grievance was not filed until February 9, 1984. This would appear to be outside the time limit for filing a grievance in respect of the violation, , : .- .: I. I-. / 4 11. i.e., 20 working days. The Board again notes that this seems to be what Mr. Pullen was referring to in his letter to the grievor dated February 16, 1984. Even the original grievance might have been filed out of ,time. In the result, therefore, the grievance must be dismissed. This Board does not have jurisdiction to award the grievor relief. upon his claim for interest. DATED at London, Ontario, this 5th $ay of February, 1985. Vice-Chairman / I. J. Thomson, Member ;/ , A. G. Stapleton, Member