HomeMy WebLinkAboutBeach et al.98-03-3In the Matter of an Arbitration
Between
St. Lawrence College
(Employer)
and
OPSEU
(Union)
And in the Matter of Grievance - Beach, Robertson and Wilson
OPSEU#'S 97B693, 97B694 and 97B695
Board of Arbitration: M.B. Keller, Chairperson
Mr. B. Matheson, Employer Nominee
Mr. C. Vermey, Union Nominee
Appearances: Mr. Gavin Leeb for the Union
Ms. Catherine Peters for the College
Hearing at Kingston, March 5, 1998.
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AWARD
The grievors claim they are entitled to severance pay under the
Employment Standards Act (E.S.A.). Each had been employed at the
College since the late 1980's as session or partial load employees
and each was terminated in April 1996.
At the time the three grievors agreed that Heather Robertson would
make enquiries on their behalf regarding any entitlement they might
have at the termination of their employment. They were told by the
employer that they had no entitlement. Ms. Robertson then
contacted the union to see if they concurred with the employer and
she was told they did. On that basis none of the grievors pursued
the matter any further.
In March 1997 Ms. Robertson was enrolled in a computer skills
upgrade course. During lunch one day the subject of termination
and entitlement came up and Ms. Robertson was told that she was
entitled to E.S.A. severance pay. She contacted the Ministry of
Labour and she was told to contact her union. She did so that same
day. Discussions then ensued. Not receiving any satisfaction Ms.
Robertson grieved on May 14, 1997, Ms. Beach on June 3 and Ms.
Wilson on June 11.
The employer takes the position the grievors are out of time and
consequently the Board is without jurisdiction to deal with this
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matter. In support of this proposition it submits that the
provisions of the collective agreement are mandatory and that each
of the grievors was aware, in May 1996, when their employment was
terminated, that the employer was taking the position that they had
no entitlement to anything. Consequently, argues the employer, the
event giving rise to the grievance crystalyzed at that time and the
grievors were fully aware then of the circumstances that gave rise
to the instant grievances.
The union argues that in May 1996 none of the grievors had
knowledge of the possibility of any entitlement to severance pay
under the E.S.A. and therefore time limits can not be said to start
then. It is submitted that the time limits can only run from April
16, 1997 the point at which, once the issue was raised with the
College, they told the union that the grievors had no E.S.A.
severance entitlement.
The union also argues that under the former provisions of the
E.S.A. employees had two years in which to lodge a complaint and as
the terminations arose during the currency of the "old" E.S.A., the
grievors are entitled to pursue their claim notwithstanding the 20
day limit applying to grievances under the collective agreement.
Finally, and in the alternative, the union argues that the six
month time limit under the current provisions of the E.S.A. should
apply.
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It is trite law that under the collective agreement the 20 day time
limit is a mandatory one and this Board has no authority to amend
or alter or vary it. The question that arises is what is the point
at which the grievors became aware of the circumstances giving rise
to the grievances.
Based on the facts the Board concludes that the triggering events
were the terminations followed by the enquiries of Ms. Robertson
both of the College and the union. The specific question asked by
Ms. Robertson was whether she, and the other two grievors, had any
entitlement flowing from their terminations. The answer was no.
It was at that point that the matter should have been pursued.
The union relied on an award of arbitrator Swan Re Northern College
and O.P.S.E.U. dated May 3, 1991 in support of their position. In
that award arbitrator Swan puts forward the proposition that time
limits start only at the point where the grievor has the requisite
knowledge of the facts in the case. The issue in that case was
recognition of time worked at the college. New facts came to the
attention of the grievor and the Board determined that the time
limits ran only from the point at which she became aware of the new
facts.
The issue in the instant case is not similar. No new facts came to
the attention of the grievors regarding the circumstances giving
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rise to the grievance. There was nothing learnt subsequently which
changed the material circumstances (i.e.) the determination by the
College that the grievors had no post-employment entitlement. That
is the issue that was grieved in mid 1997 and it crystalyzed May
1996.
As arbitrator Brunner wrote in Re Algonquin College and O.P.S.E.U.,
October 4, 1983
"... it is not when an employee first appreciates or
ought reasonably to have appreciated that a breach of a
Collective Agreement has or may have taken place that
triggers the commencement of a limitation period, but
rather when the circumstances or the facts which give
rise to the complaint have occurred or have come or
ought reasonably to have come to the attention of the
employee".
In the instant case, in March 1997 the grievors may have come on
information that led them to appreciate that a breach may have
taken place. That did not, however, change the time when the
circumstances giving rise to the complaint occurred.
Thus, the Board finds that the 20 day period commenced in May 1996.
With respect to the union's first E.S.A. submission - that a 2 year
period applies in which to claim benefits, we point to section
82.3(b) which are the transition provisions and which may have
permitted a complaint to be filed beyond six months but only if a
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complaint was made within 60 days after the day on which the
section came into force. It was not.
The last issue is whether the six month provision of the E.S.A.
applies. The Board need not deal with that issue as the grievance
was filed outside that period.
The grievances are dismissed.
Signed this 30 day of March, 1998.
_________________________________
M. Brian Keller, Chair
I concur"Mr. C. Vermey"
Mr. C. Vermey, Union Nominee
I concur"Mr. B. Matheson"
Mr. B. Matheson, Employer Nominee