HomeMy WebLinkAboutHolland 05-12-15
DEe 1 9 2005
In the Matter of an Arbitration
Between:
HURLEY CORPORATION
(the "Employer")
-and-
OPSEU Local 241
(the "Union")
Re:
Grievances of Collin Holland
Arbitrator:
Barry B. Fisher
Appearing for the Employer:
George Waggott, Counsel
Appearing for the Union:
Mitch Bevan, Grievance Officer
Held at Hamilton this 14 December 2005
Interim Award regarding Timeliness
2
This is a preliminary objection re the timeliness of two grievances, which can be
described as follows:
4. Grievance dated May 25, 2005 regarding an allegation that the grievor was
paid at the wrong rate from November 5, 2003;
Ji- ) Grievance dated June 9, 2005 regarding an allegation that the grievor
should have been recalled from layoff on September 1, 2003 instead of
November 5,2003.
The parties agreed on the following facts:
1. The grievor in November 2003 approached management to complain that
he was being paid at the incorrect pay rate.
2. The manager disagreed with the grievor's complaint.
3. The grievor in May 2005 approached the local Union steward to raise the,
issue of the improper rate of pay.
4. The steward instructed the grievor to file a grievance.
5. The grievor filed the two above mentioned grievances on the dates
referred to above.
6. As a result of the grievance regarding pay rates being filed, the Employer
reviewed their records, recognized that the Grievor had not been properly
paid for the period of May 3, 2004 to February 6, 2005. On July 15,2005
the Employer paid the Grievor those wage arrears. The Union agrees that
this payment represents all monies owing to him from May 3, 2004 to
date. Thus the only dispute outstanding is the claim for wages owing from
November 3, 2003 to May 2, 2004.
The relevant articles in the Collective Agreement are as follows:
10.01
Should any dispute arise between the Employer and an employee or
between the Employer and the Union as to the interpretation, application,
administration or alleged violation of any of the provisions of this
Agreement, an earnest effort will be made to settle such differences
without undue delay in the following manner.
. Step I
The employees involved shall within and not after ten (10) working days
of the date, upon which the incident giving rise to the grievances first
occurred, present the grievances to his foreman either orally or in writing.
3
Step 2
If the. grievance is not settled within five (5) working days of the date that
matter was taken up with the foreman, the Union may within and not after
five (5) working days of that date, take the matter up with the Manager or
his nominee. All grievances submitted at Step 2 shall be in writing, shall
be signed by the employee and the Union Stewart; and shall indicate the
nature of the grievance, the article alleged to be violated, and the
adjustment sought. The Manager or his nominee will upon request meet
with the Union within ten (10) working days of the date the written
grievance is filed with him at which time an Officer of the Union may be
present at the request of either party. The Manager or his nominee will
give his answer or decision in writing within fifteen (15) working days of
the date the written grievance was filed with him.
10.05
Time limits referred to in the grievance procedure and arbitration
procedure may be extended by mutual agreement if specified in writing.
The June 9, 2005 grievance relates to an event that took place in the fall of 2003,
almost two years prior to the filing of the grievance. This undue delayis in clear violation
of Step 1 of the grievance procedure.
The May 25; 2005 grievance when it was filed may not have been untimely as it
alleged that the breach was continuing, however now that the dispute only relates to a
time frame from November 5,2003 to May 3,2004, the award could only be retroactive
to the date which is ten (10) working days before the filing of the grievance, in other
words from sometime in early May 2005. (See St. Raphael's Nursing Homes Ltd and
London and District Service Workers' Union, Local 220, 18 LA.C 430 Arbitrator
Roberts.) As such, even if the grievance would be allowed, no monetary compensation
could be awarded. As the Union is not seeking a declaratory award but a monetary one,
there is no legitimate labour relations reason to detennine liability where, even if the
Union succeeded, no useful remedy could be awarded. '
Both these grievances are therefore dismissed.
Dated at Toronto this 15th day of December, 2005