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Home My WebLink AboutHinderley 03-05-12 IN THE MATTER OF AN ARBITRATION between Ontario Public Service Employees Union (OPSEU) (Grievance of Deborah Hinderley) and Sault College of Applied Arts and Technology For the Employer: Victoria R_ Chiappetta, Counsel Rhonda Wright, Manager of Human Resources For the Union: Don Martin, Grievance Officer, OPSEU Deborah Hinderley, Grievor Jennifer, Rennisen, Steward Before: Louis M. Tenace, Chairman David J. Cameletti, Employer Nominee M. J. Sullivan, Union Nominee Heard in Sault Ste. Marie, Ontario on April 30, 2003 AWARD Deborah Hinderley had worked for Sault College as a non-bargaining unit part-time employee from January 1,1988 to March 8,1996, at which time she was laid off. She was paid severance pay in the amount of $2716.42. On or about May 26,1997, she was again employed at Sault College as a full-time employee, backfilling for persons on leave of absence. On October 9, 2000, she was placed in a regular, full-time position and was credited with seniority as of May 26,1997. The union contends that the grievor should have been credited with seniority back to January 1, 1988 according to the union's interpretation of Article 14.3 and Appendix D of the Support Staff Collective Agreement between the Ontario Council of Regents for Colleges of Applied Arts and Technology and the Ontario Public Service Employees Union having an expiry date of August 31, 2003. The grievor did not file her grievance until Jtme 24, 2002. Counsel for the employer raised a preliminary objection based on the timeliness of the grievance. The Board indicated that it would hear the argument on timeliness, reserving its decision to proceed thereon, as well as hear the case on the merits. We will deal first with the preliminary objection. In its response at Step One of the grievance procedure (Exhibit # 5, dated October 3 l, 2002), the employer denied the grievance on its merits as well as on the grounds of timeliness. Following is the language employed: I am responding to your grievance at Step One, as your supervisor is not involved in established seniority dates for employees. Attached is a detailed record of your hours of work as a Support Staffemployee prior to being hired full-time on October 8, 2000 and shows the number of hours credited toward your seniority date. According to our calculation your seniority date is correct as July 28, 1998. Debbie, if this grievance proceeds the college will raise a preliminary objection on timeliness since your seniority date was established when you were hired full-time on October 9, 2000. Further, the following excerpt is from the College's response to the grievance at Step two of the grievance procedure (Exhibit # 6, dated December 3, 2000): Once again the college will raise a preliminary objection on timeliness should your grievance proceed to arbitration. You indicated you enquired about this issue at the time were hired full-time and were advised that the hours wouM not be credited. The seniority ~t is provided to OPSEU local 612 representatives on a frequent basis and is available for in~tion by employees. Counsel for the employer contends that this is a clear indication that the employer woul~.~.ii: 3 challenge the jurisdiction of any arbitrator or arbitration board to hear this grievance. The union representative contends that this is a continuing grievance and that the grievor was not familiar with collective agreement rules and that a delay of twenty months was not unreasonable in the circumstances. Further, he contends that the employer has not made clear to the grievor that it would seek to have the grievance declared inarbitrable based on its being out of time and that it could not do so now. In support of this position, he referred the Board to a 1996 arbitration board decision chaired by Professor C. Gordon Simmons(unreported) between Fanshawe College and OPSEU (Group Grievance involving Ms. Kim McCoy and Ms. Alice Milligan) wherein the board stated: As soon as the grievance was raised the Employer objected to the jurisdiction of this board of arbitration dealing with the matter on its merits in its response dated December 19, 1994 (Exhibit 4). The Employer stated that any concerns regarding mileage costs shouM have been brought forward at the time of the agreement that had been entered into m June, 1994. However, lhe Board does not regard this comment by the Employer as raising an objection to the jurisdiction of the Board in dealing with this matter. It is true that the Employer raises the matter of concerns regarding mileage costs and that they should have been brought forward at the time of this agreement but the Employer does not specifically state that the matter is unarbitrabl~ Therefore, the Board does not accept the Employer's submission that the matter is unarbitrable due to the late filing of the grievance and we will proceed to the next step in this matter (Emphasis added). Article 18.6.1 (Grievances) of the applicable collective agreement between the parties states as follows: A complaint shall be taken up as a grievance in the following manner and sequence provided it is presented within fifteen (15) days after the circumstances giving rise to the complaint have occurred, or have come or ought reasonably to have come to the attention of the employee. Article 18.7.5 (Limitations) states as follows: The Arbitration Board shall not be authorized to alter, modify or amend any part of the terms of this Agreement nor to make any decision inconsistent therewith nor to deal with any matter that is not a proper matter for grievance under this Agreement. It is our view that the instant grievance is untimely and that this board is without jurisdiction to consider it. We find that the employer made its position abundantly clear in its responses to the grievances at Steps One and Two of the grievance procedure (Exhibits 6 and 7 cited above), that it was rejecting the grievances on the merits and that it was also rejecting the grievances on the basis of timeliness should they be advanced to arbitration. We have carefully 4 reviewed the Board award written by Professor Simmons (Chairman). The precise language of Exhibit 4 which appears to be the basis for that decision does not specifically state that the grievance is untimely and that it is not arbitrable because the Board does not have the jurisdiction to hear the case. However, the language used by the employer in the instant case is very clear and leaves no doubt about setting out the preliminary objection to the jurisdiction of an arbitrator or arbitration board from considering this grievance based on timeliness. We do not see the instant case as falling within the parameters of a 'continuing grievance'. There was a precise point in time when the grievor was made aware of the exact service with which she would be credited. That date was October 9, 2000. She did not file her grievance until some twenty months later. For the Union to argue that she was unaware at the time of the meaning of certain sections of the collective agreement is not sufficient reason for this to be considered a continuing grievance. If she somehow felt that there was something incorrect about the calculation of her seniority, she should at least have approached her union to seek clarification upon being informed of it by the College. In fact, in the instant case, the delay was some twenty months later. The grievance, therefore, is denied because of a lack of jurisdiction. The Board makes no finding or comment as to the merits. Dated at Ottawa, Ontario, this/~h day of May, 2003 I concur~ David J. Cameletti (Employer Nominee) I concurA4i.q~c.-* M.J. Sullivan (Union Nominee)