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HomeMy WebLinkAboutRobitaille 94-03-01OPSEU #93G050 OPSEU LOCAL #330 OPSEU (ROBITAILLE, M.) - Simcoe Board of Education Award dated March 16. 1994 (M.G. Mitchnick) Time Limits - Statutory Discretion to Extend Preliminary Objection The grievor accepted a transfer to a different work place location in order to avoid a work place harassment problem. The grievor agreed to move to a lower-paying position but to continue to be paid at her higher rate for a period of four months after which she would revert to the lower rate. Approximately nine months after being in the new position, the grievor decided to file a grievance claiming that the transfer was due to circumstances beyond her control and as a result, she should be red-circled. The Board determined that in these circumstances, it would not be appropriate to exercise its discretion to extend the time limits under section 45(8) and section 45(8.3) of the Ontario Labour Relations Act. As a result, the grievance was denied on the preliminary basis. Kevin Whitaker . IN THE MATTER OF AN ARBITRATION BETWEEN SIMCOE COUNTY WARD OF EDUCATION (herein referred to as "the Employer) AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION LOCAL 330 (herein referred to as "the Union") RE: GRIEVANCE OF MARIE-JEANNE ROBITAILLE OPSEU 93G050 BEFORE:M. G. Mitchnick - Chairperson Michael Lyons - Union Nominee Robert Kitchen - Employer Nominee FOR THE UNION:Kevin Whitaker - Counsel FOR THE EMPLOYER: William Phelps - Counsel A Hearing in this matter was held in Barrie on February 3, 1994 AWARD This is a grievance brought by Marie-Jeanne Robitaille seeking certain adjustments to her rate of pay. After hearing the parties' statement of material facts and argument, the board ruled orally that it would not exercise its discretion to relieve against the collective agreement's time limits, and dismissed the grievance on that basis. As the Union has now requested that the reasons be supplied in writing, the board will do so hereunder. The qrievor had been working in two part-time office positions (equalling one full-time) in the FLS high school when in April of 1991 her sister was the successful bidder into a position over her. This led to all sorts of personal difficulty for the grievor, as a result of which a great deal of time of various parties at the Board went into trying to find a solution for the grievor. In August of 1992 a position opened up at another school, and with the assistance of a Mr. Don Lytle of the Employee Assistance Program, an arrangement was worked out whereby the normal posting procedure could be by-passed (as the Local Union had agreed to in a general way earlier) and the grievor put into the job. That position was, however, a lower paying one than the grievor had been holding. Because the Board had some year-end money left in its budget, Mr. Lytle was successful in persuading the Board to agree to continue the grievor at her current earnings level for the first four months, September to December, after which she would revert to the rate for the job. The grievor accepted those arrangements and went into the job. However, the situation continued to eat at her, and in the spring of 1993, we are told, there were events which caused the grievor to contact the Union, to see if anything could be done for her -- in particular, to retrieve her old rate. She was advised that there was a possibility that she would have been entitled to some protection under the "transfer" provisions of the collective agreement, and on June 17th, 1993, the present grievance was filed. There is no dispute but that the collective agreement provides in mandatory terms that this grievance was to have been brought within ten days of the circumstances giving rise to the grievance. Those circumstances, being the arrangement under which the provisions for transfer had been worked out for the grievor, occurred some nine or ten months prior to the filing of the grievance. The Union makes its argument in essence based on the distraught state of the grievor's mind throughout this piece, and also on what it alleges was an ultimatum on the part of Mr. Lytle to the grievor that she elect to negotiate with the employer either through him or through the Union. The employer denies that that was the form of option put to the grievor, but in any event submits: l)Had the grievor raised her concern in a timely fashion, the Board would simply have denied the transfer, since it was not in a position to pay above the rate for the job on an indefinite basis. 2)Because of the grievor's silence and apparent satisfaction with what had been worked out, the Board did not pursue other options for the grievor which might have presented themselves through that ensuing period. 3)The passage of nine to ten months is particularly prejudicial with respect to recalling evidence and reconstructing the case when there had not been a word from the grievor that any of this was subsequently going to be sought to be re- opened by her. The sections of the Labour Relations Act under which the Union brings its request for relief provide: s. 45 (8) An arbitrator or arbitration board shall make a final and conclusive settlement of the differences between the parties and, for that purpose, has the following powers: 1. To determine the nature of the differences in order to address their real substance. And more particularly: s. 45 (8.3) An arbitrator or arbitration board may extend the time for any step in the grievance or arbitration procedure under a collective agreement, despite the expiration of the time, if he, she or it is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension. In dismissing the grievance orally, the board noted that it does have an important discretion to relieve against time limits, but that it must be moved to use its discretion in that way as a matter of ultimate fairness between the parties. Here the board need not determine the relationship, if any, between section 45 (8)1. and section 45 (8.3) of the habour Realtions Act, because in our view this is a case where the equities under the latter are very closely connected with the "real substance" of the former. The board indicated that it was prepared to accept all of the grievor's statements of fact, including how she at least perceived the statements put to her by Mr. Lytle with respect to representation. Thus, the board was fully prepared to accept that the grievor was under considerable stress and strain during the period this arrangement was being worked out for her -- and feeling pressure not to consult further with the Union as well. All of that, the board noted, would likely cause a board of arbitration to allow some latitude for the grievor to come to a realization that she could not tolerate the "deal" as it stood, and to offer her some measure of relief as a result. But it is acknowledged that the grievor was not during this period incapacitated to the point of being mentally incompetent. And the grievor accepted the arrangement made solely for her benefit, as a result of her request for accommodation by the employer, for nine months (including the first four at the agreed-upon red-circled rate). Then, as we were told, there was some further triggering event that caused the grievor to want to review the terms of the deal, and ultimately to grieve -- not to have it rescinded, the Union has made clear, but to have the employer now be required to extend indefinitely the accommodation that it had offered to make for the first four months. As indicated, the board might well have been sympathetic to over riding the contractual time limits to allow the grievor some form of relief, had the second thoughts of the grievor been raised with some sort of freshness. But after nine months, the board is not persuaded that this is a proper case for the exercise of our discretion, particularly in the context of the relief ultimately sought. In the face of the time limits and language of the collective agreement, therefore, we have found that the grievance is not open to be proceeded with, and must be dismissed. Dated at Toronto this day of March, 1994.