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HomeMy WebLinkAbout1992-3641.Wood.94-02-02 - 1\, ~ '" -' \ ONTARIO EMPLOYES DELA COURONNE CROWN EMPLOYEES DE L'ONTARIO f'\O:.h 01 GRIEVANCE COMMISSION DE I'{I\I 1111 \) ,s,Cfi\ , ~ SETTLEMENT REGLEMENT BOARD ; ,DES GRIEFS.,~1 , ~ J ~ ( " I 180 DUNDAS STREeT WEST SU/TE 2100 TORONTO, ONTARIO. M5G 1Z8 . tELEPHONEITSl!~f?ttONE (~16) 326-1388 , .1\ 180 RUE DUNDAS OUeST 8UREAU 2100 TORONTO (ONTARIO) M5G IZ8 FACSIMILE ITE;LE~COPIE (~)6) 326- 1396 it ~. ~ I. -. r ) >. 3641/92 -. ~- IN THE MATTER-OF AN ARBITRATION . -- ." ...... ~"""'" t-r - J " Under: ; ';. l' THE CROWN' EMPLOYEES COLLECT;I". '~ARGA'IN.LNG AC':J,' . " , I' "\ "- Before _:~ - '- - ~ THE GRIEVANCE 'SETTL~~N~ BO~Di - BETWEEN + : , OPSEU -=(MooQ:): ~ Grievor ~ an'd - i. - , The Crown in Right of o,nta,rio, (Ministry of Natural Resources) Employer BEFORE w. Kaplan Vig~-Chairperson, T. Browes-Bugden Meriiber' " -: D;Clark ~{ 1 Member ? '~ ,-, , ,,! ,. FOR THE G. Leeb - - GRIEVOR Grievance Officer ontario Public Service Employees Union ,- , .-;' 1 FOR. THE. M. Failes . EMPLOYE~ Counsel ;. i I Filion, Wakely & Thorup ~ I - Barristers & .S'oliqit..9rs i' I :- I , HEARING December 7, 1993 I ~ - - , - - "" - -. , - r " I 2 Introduction ~ 0 ~ - -~ By a grievance dated November 17'; 1992, Nikki Wood, cr seasonal worker employed by the Ministry of NatlJral Resources in Th.under ~ay', grieves that ~ \ she has been discriminated against on the basis of gender, In effect, the parties agreed, a violation of Article A of the Collective Agreement. The grievance proceeded to a heanng In, T.oron~~ at which time the employer raised tWo preliminary objections First, that the grievance, relating to events which took 'plate ,in 'the spring, of 1990, was OLl.t. .of time And second, that there could be no violation: of Article A of the Collective Agreement as that provision was hot yet ineffectowh~n th~ alleged violation took place -, It., was appropriate in tliis ,case, given the complexity of the issues Involved, and the need to call evidence with respect to them, to determine first the preliminary matters in dispute ~. ~ - Background to ~he, I)ispute - Both the grievor and a member of managertlent testified in these proceeding$ However, it is fair to say that mo_st of the f~cts are not In - dispute - 't '$. t The grievor began work for the Ministry as a seasonal 'employee on a Group 3 contract on April 17, 1989 This contract, due. to expire on September 15, 1989, was, however, extended to March 1990 The contract clearly indicates that at the time of her appointment, the grievor's status was that of "1 st Season Probationary" On December 31, 1989, the grievor had a baby and had, in fact, stopped work several days previously The grievor began to receive Unemployment Insurance Maternity benefits On January 4, 1990, the grievor returned briefly to her place of employment and signed a /' document titled "Group 3 Seasonal End of Current Penod of Seasonal _. i'\ '~ ! 3 Employment. " , , ' On March 21, 1990, the grievor was sen-t a letter offering -her another ;- - seasonal position with the Ministry, and was asked to contact a member of management with respect to her response to this seasonal job offer The gnevor, for reasons set out below, declined the job offer and did not - resume seasonal employment with the Ministry until December 1990 , - Between December 17, 1990 and January 4, '1991, tne grievor held a Group 2 ~ i. f contract. Between January 7, 1991 and February 10, 1991, the gnevor held - " a Group 1 contract. Between February 11, 1991 and March 22, 1991 the . - grievor held a Group 3 contract. And between April 23, 1991 and March 13, ~ r 1992, the grievor held a Group 3 contract. '- .' - As this chronology indicates, the grievor has held limited term contracts referred to by the parties as "eleven plus one" contracts. The existence of these contracts has been, for a number of years, a matter of contention - betweel1 the union and the employer Suffice it to say, that the union took - - _ the position that the Ministry was improperly treating a number of year ~ -', , round positions as seasonal positions. This particular dispute was finally resolved by a Memorandum of Settlement dated June 13, 1991 One of the terms of this settlement required the Ministry to "appoint all of the current ~ ~ incumben.ts of positions of 43 weeks or longer duration, provided they have , - - completed at least two seasons of employment as a seasonal unclassified employee to the classified civil service effective the date of this settlement. " The grievor takes the-position that she has been discriminated i against on the basis of gender because she was n6t rolled over into the classified service as she did not work the necessary second season to \ qualify because she was on a maternity leave The union alleges both direct j, 4 and adverse impact dlscnmlnation As already noted, the employer takes ) the position that the grievance, filed on November 17, 1992, is out of time I anq, mqreover, that th~re Gould be no violation of Article A in this case as , .' A f" I '; I , that proyi~ion wa~ not in t~w Co'lIective Agreement at the relev<ant period of _ , . { ~ . - ~ ~ime ~n t~~t it did not come into effect until June 15, 1990 ' ~ .... 1 .~} 1 ~ ~. t (. ~ A,. few other facts are pOS$ibly relevant and should be set out. In addition to \ '(; 'P i~'l ,e .~. filip.g a grieva[l~e, t~e grievo~ has filed a Human Rights_ complaint. She has ,\ also filed another grievance, dated May 11, 1992 This grievance alleges . ~ .- ~l that she was wrongly denied conversion to the classified service pursuant , < to, the June 13, 1991 Memoranqum of Settlement. That grievance is still -f' "..- ~ . I""'t," pending between the partie~. It should also be noted that the Memorandum ~. of Settlement provided for the establishment of a joint'; committee to consider and resolve ~nomalies flowing from it. The grievor's concerns Were referred to that committee, but it was unable to agree on the , . J - dispo.sition ,of her~ase A union policy grievance is outstanding with t,..; .... s...... ," respect tQ the implement.ation of the settlement as are numerous individual- <- ,grievances, in_eluding th~ grievor's dated May 11, 1992, whlch- have been ~ 0 i:--- adjoeurned sine die pe'1ding~ the determination of the policy griewance ~'" L ~ ' Evidence of Nikki Wood ,( . : -- ~, ~) Ms., Wood testified. She told the Board that it was her intention to return to 4 . ~ . \ ~ t - work in the spring of 1990, and a letter to the employer indicating as much w~s introduced into~evidence The grievor testified that she signed the '1 r . ""A "Group 3 Seasonal End of Current Period of Employment" form because her contrc:lct was scheduled to run until March 1990, and she wanted to ensure i that all of her records were in order Moreover, she had just left the , hosp'it~1 and she was anxious to get home with her baby and 50 did not { r- ;~ 5 quibble over the fact that this docume'nt did not indicate that she was on a l' ., .~ maternity leave r t ~ /1 , , ... , 1"-t The grievor testified tha-t- ih the fall of 1989 she contacted various members of management tb' advise them of her pregnancy and to' make \ - .. ~ arrangements with respect to it. The grievor' received Unemployment Insurance Maternity 'benefits from, January 1, 1990 until April 29, 199,0 In { r". ,:.;0 the meantime, she received-the employer's March 21, ;-990"offer of employment. After receiving this offer of employment she attended at the employer's office and spoke with a memoer of management, Blair McCulligh The grievor told Mr McCulligh that she could not return to work on the suggested starting date of April 17, 1990 "Mr McCulligh asked~ h~rif she '- r would like him to ho'ld the position open for several days. The grievor turned this offer down. At that point, Mr McCulligh asked her to sign a " document titled "Group 3 S'easonal Unclassified 'Starf Termination of ... Employment." This document states in part, that ttie signatory understands r j ~ ~ "that since I, as a Group Seasonal employee, have terminated my - employment with the Ministry of N'atural Resources 'for the reason ~ ~J~ described herein '3' I have iost all seniority and recatr rights" 'The number 3 is a code number" which states: "resignation due to otner'reasons I_J J- -+ (including unavailability for recail or denies offer for r'eemproyment) II The grievor testified that it was her understanding, In signing' this' document, that she was simply turning down the March 21, 1990 job offer ',~, The grievor told the Board that she kept in touch with the- employer throughout the summer and fall of 1990 She would attend at the J employer's offIces at least "once per month t6 indicate her Interest in -" returning to work. As noted at the~ outset 'of this award, the grievor ,. 6 receiv~d sever~1 short-term jobs beginning in December 1990 After the Memorandum of Settlement was reached, the grievor wro~e a letter to the joint comrpittee established pursuant to it to deal with anomalies In thIs ) letter, dated JulY 17" 19~ 1" the grievor sta~~s that she wishes_to express certain concerns. "As an incumbent whose position h~s conver~:ed to I p~rmanency but for which I ~m $lpparently n() longer qualified for because of I , . t one break ,in service since 1989 due to pr~gnan~y, I have grave concerns '. . , , about, the equity of the process," This le,tter was copied to Cathy Cavalier, f 1;'" i~ , a member of rnapa,gement, and the grjevor testified that ~he regularly asked , ' ' members of .management pbout the status of her application The grie~or testifi~d that prior to .her May 1992 grievance, she had never 't:'- fiJed a grievance before, did not even have a copy of the Collective , ~ Agreement, and h~d, prior to joining the Ministry, never worked in a ~ I_'} unioni~ed environment. ,She testified that she did "ot file a grievance in the .... -t ~ - spring..of 1990 Qecause she ended up getting a seri~s of positions beginning - -... ,I..' ~-- the following Decerl1ber The ,grievor testified that she did not feel - affected by what had t~ken place until the Memorandum of Settlement was ~, reached and Qther employees, but not her, were [oiled over into the classified service Moreover, the grievor ended up receiving an "eleven plus ; -';,1 one" cpr:nmencing in April 1991 Simply put, the gnevor was stIli workmg . t ;. ~i ar;ld did not wish, she testiJieq, to alienate the erl1ployer by filing a 1 . ' ' grievance . i ;Of i ~ .- i ~ As already noted, the joint committee could not agree with respect to the , " , ~ grievor's ,appljca~ion for roll-over In March 1992, the grievor again began to rec~ive maternity benefits, and as was the case two y~ars., earlier, she was asked to sign a second "~roup 3 Seasonal Unclassified. Staff . J1" ,"" I 7 Termination of Employment" form. This bothered the gnevor and, r:~inforced her conclusion that she was bemg discriminated against on the basis of gender She testified that she 'sighed this form under duress and some notations 'indicating her disagreement' with this terminatio'n wer:e~ ptaced on it (by a member--of man'Clgement, 'however) -rhese notations do no,t iallege discrimination but relate to the Memoraridunt of Settlement and the rollover of seasonal employees , . .' ~ t The grievor testified that after seekfng advice with respect to these events and her "termination" in March 1992, she, decided to file a grievance, and on May 11, '1992 did, in 'fact,"do so~ Some time after filing, this grievance, the grievor had a discussion with Cathy Cavalier arid i'ndicated to her that she felt discriminated' against on the basis of gender becalJse it she,..had not had her baby 'in December 1989, she would 'have worked the following season ,', and' would have subsequently benefited from the 'Memorandum of Settlement and roiled -over into the classified service The grievor testified that she filed the instant grievance on November 17, 1992 because she felt that her - situation was not being addressed' \ ~' , ..., '. - Cross-Examination of Ms. Wood , ,- ,- In cross-examination, the grievor agree'd that while_ she was not fully familiar with the different provisions of the ColleCtiVe Agreement including those relating to the probationary statuS of seasonal .employees, she was generally aware that two seasons of employment were required, but did not know how long each season 'had to be The grievor testified that she wa~ not concerned about passing. her probationary period 'because she is a 'hard working employee; arid she was, of the view that if ,I~yoffs were to take place they would~ be scheduled on the basis ,of seniority- not , ,,", 8 .; probationary' status ,j; . - ~ j ., - The grievor testified that when she signed the "Group 3 Seasqoa,t Epd of -- ~. ;,,} Current Period of EmplQyment" form in Januar~ 1990, she $imply thought - that she was ~JearjlJg ,up t.he paperwork~ She did notthink that anythmg was wrong, at ,that time Moreov~r, she wished tp ,cooperate with the employer and not do anything that would affect .her position, When the - grievor received the March 21, 1990 letter she thought that she had, a right to return tQ work,,~and this Je,~t~r incorrectly indicates that the grievor did enjoy some recall rights when that was not actually the case The grievor - -' ,agreed that she advi$ed Mr McCulligh that she cou!.d. not. return to yvork on , the"day sug~ested, {IQr could she returnJ\o V\{,qrk several day:s later The ~ grievor agreed. that Mr McC!Jlligh offered tohol<;i tre grieyor's ,job open for several days and that she' declined this ~0ffer ,}~hile. thegrievQr did not say that she wished to remain at home,,,sh~ mayr~ve said something to the effect that it was too 'early or that her son was too YOLJng She did not say - that she eQuid ret,ufn to work in several week~, nor did she request or suggest any other possible accommodation. .A t thqt. pOInt, the grievor was ~' , asked to sign the "Group 3 Seasonal Unclassified Staff Termination of Employment" form. She testified that she felt that this ,form should have -' indicated ,that she was on :ffl~~ernity lea.\;'e;: ,not that she had reject,~d an offer" ofemployrnent. She testifie<;i that there was no code number on the back for maternttyleave , ~ \ Thegrievor testified that she believes she should be credited ,for I the 1990 season as she' was on maternity leave an9 that leave precluded her from - attending work. She ~greed, that p,rior ,to the filing of ~he instant. grievance, , ~~ she' nevenrnade tha,t Y'ishk'lown to rnana~gem~nt1 anq she te~tified that she r- ,~ 9 1 -~; 'I "~ did not do so because she did not wish to affect her employ'ment .~ !.. - 1 1 I rela~tionship. Moreover; as already noted, beginning In December ",. 990 and U -;:; ""'> .... ,.... r _ lasti~g until March 1992: the grievor received a number of employment , i contracts. She testified that she had very good relatiOns with 'her e'mployer I ~ ' ., ~.f \1 and with members of management. ...-..... i<" .,.,. The grievor was referred to her employment contract for her 'RT3- position which began on February 11, 1991 This document; which the grievor < signed, clearly indicates that her employment status is "1 5t Seaso"n Probationary" The grievor agreed that this designation indicated that she had not qe~n given credit for her previous employment. -(Yt' will' be recalled I th:at the grievor had lost all accumulated seniority when she "signed the . ,;.. t: !"- "Group 3 S~,~sonal Unclassified Staff Termination of Employment" form in March 1 990) The grievor testified that even though obtainihg c"redit for her previous employment would have meant a higher hourly rate, she did not i .1 - - - - pursue her concerns with respect to this because she was 'happy to get the . ~ ~ job and did not Want 'to disrupt her relations with the erhployer . ! The grievor was asked a number of questions about the Memorandum of , ., , Settlement. She testified that while she was prepared to accept an extension of her probationary period and a reduction of wages, even 'though she believed both to be unfair, she was not prepared t6 accept being denied the benefits of the Memorandum of Settlement. However; instead of complaining with respect to the events of 1 990, the grievor pursued her application for a roll-over under the Memorandum The grievor agreed that she never raised the events of 1990 with Cathy Cavalier or any other member of management, and that no member of management ever said to her not to file a grievance with respect to those events. I I r .' J 10 l The grievor reiterated her evidence that she signed the "Group 3 Seasonal i j Unclas$ified Staff Termination of Employment" form ,in~ Marth '1992 under " ';' duress and testi.fi~d tha~ she said as much to Cathy Cavalier The gnevor ., testified t,hat both, times she had a baby she was discriminated' against, and 1J;Ji , - - told the Board that she advised Cathy Cav_alier that this was her opinion sometime after she filed the May 11, 1992 grievance Employer counsel advised the eoard that Ms. Cavalier could recall some discussions with the , - grievor about her roll-over~status, but had no recollection of any , ( discussions with respect to allegations of discrimination. ~ , ,!. ~l \ Re-examination of Ms. Wood In r~-examination, Ms Wood testified that although she did not like being terminated in 1990~ it did not really affect her ~$ shesub-~equently s. ob~ained employment. The grievor testified that she did not really feel ! ' affected by this termination until' the Memprandum of Settlement and the -. - rolhover of ott)er ~mployees The grievor testified that it was a mistake "' , not to file ~ grievance in 1990, but indicated that as a new employee'she., , . <' 1 did not wish to make any waves. The grievor wished to make it known that sh,e doe,? not b~.Iieve that either Mr McCulligh or Ms Cavalier personally c. ' ~ discriminated against her .- '1""": - Evidence of Blair McCulligh 4 .-, _'.' Mr McCulligh testified. He told the Board that in 1 990 he was Forest Services Officer He met with the grievor on March 29, 1990 in order to di.,scuss her return to employment. The scheduled startin~ date for the ~rievor's position was April 17, '990 T~e grievor said that she could not come back, on that date Mr McCulligh offered to hold the job open for a few ! , days The grievor declined the offer and did not make any suggestions of ", ~, , ,-, 1 1 her own The witness was asked what he would have' done if the 'gnevor had said that she was available as of the end of Apnl He testified that It was , possible! that he could have' accommodated such a request, 'but tha-t he would have had to discuss it with other supervisors. Mr McCulligh also testified that had the grievor raised a complaint or concern with him in March 1990, , -i ~ he would have sought some guidance with 'respect to it. -- , Gross-Examinatio'n of Mr. 'McCulligh ; ; In cross-examination, Mr McCulligh was asked a number-~of questions about the job he offered the grievor In brief: the witness testified that the grievor was recalled to a classification and not a specific job. He agreed th~t there was some flexibility in starting dates given that the work was staggered. Mr McCuJligh testified that the grievor advised- her that she - ....-._<, wishec;J to remain at home to look after her child Mr McCulligh did not u.nderstand from this conversation that the grievor never wished to return - ,. to work,_ ~hat he understood was that for the present time the grievor did , I not wish to return to work. Mr McCulligh did not feel any obligation to - offer the grievor any accommodations beyond a few days of flexibility in - her starting time, and he emphasized that the grievor' rieverasked for any , such accommodations. Had the grievor asked for an accommodation, Mr . ) McClJlligh te~tified that he would have considered it He was not asked, i however, and he did not offer because he understood the "9rievor to be saying that she wished to sta,y at home to look after her thiid. While Mr McCulligh was not aware of the employer's maternity leave policy, it was agreed by the parties that there was suCh a 'policy for seasonal employees and it states, in part. j'Leave of absence without pay may be granted by the manager at his/her discretion Leave would be granted to a -- --~- ~- 12 probatiQnary employee only in th~ most extraordinary circumstances 'II .. '. ..., , ) J " ~ The evidence, having be~n completed, the matter turned to argument ... t J) i r ! - C .' Employer Argument - l" r .~ , Counsel began his submi~$lons by suggesting tha~ the Board dId not have ,- ...~%. -~ -" ..... . r I' jurisdiction to hear this particular discrimination complaint and cited Mills , 12/88 (Low) in support of this point. ~oun~el argued that none of the j ._ t~ Collective Agr~ement provisions at issue in thfs"case were, in co-nflict with - ; ,- the Human Rights Code, nor were any of the employer's actions in , , ad~inistering; those provisions . .~ . j . .~. , " '" - In th.is ,c;:ase" the ,parties agreed, p~rsuant to th~ Memorandum of Settlement - t, ' . r:~ . _ .- ~- that employ~~s who had completed ~wo seasons of employment as a .j tJ t ..;.f '\.~ seasonal el11ployee would be rolled over into the class!fi~d civil service ,/ The grievor had not completed two seasons of employment and was not .i I eligible to benefit from that agreement. It was not, counsel argued, -t..~' ~ : I cont.rClry tQ, the Human Rights Cod~ to call someone who had no Collective I ,.. J Agree,me.nt entitlement~ ano of,fer them a' seasonal job which is exactly "r ! f1. r . - ~ 'i S what this employer did j~ March 1990 The fact that that person declined r the job offer does not, and counsel argued, cannot, lead to a Human RIghts .......J ~ Code breach, and ~ertainly not one that is enforceable by the Grievance " " Settlement Bo~rd Morepver, counsel noted, Article A dId not, pursuant to Article 8S.1 .of the ,Collective Agreement, come into effect until June 15, 1990 As this provisi,on was not in effect at the time of the alleged breach It could not, , counsel argued, confer q,n the Board any jurisdiction over this particular ...: " .. \ , 13 discrimination complaint , - , , I The employer also took the position that the grievance was out of time and - suggested that the evidence clearly established that this was the case It ~ I I 1 is common ground between the parties that the time limits for the filing of ~ ) .J grievances set out in the Collective Agreement are mandatory The relevant provisions of the Collective Agreement are as follows. \.. Article 27 1 ~ It is the intent of this Agreement to adjust as quickly as I possible any complaints or, differences between the parties arising f,rorn t,he interpretation, application, r - I administration or alleged contravention of this Agreement, including any question as to whether ,any matter is arbitrable Article 27 2 l' ! ,( . I An employee who believes he has a complaint or a difference shall first discuss the complaint or \ ~ difference with his sUJi>ervisor within twenty (20) days of first becoming aware of the complaint or difference . I J Couns~1 noted that until the,grievor filed the instant. g~ievance in November 1992, or perhaps some~ime .prior to that in a conversation with Cathy Cavalier, she had not indicgted in any,.way tha.t she considered the empleyer's actions, in early 1990, discriminatory in any respect or contrary to the terms of the Collective Agreement. , In employer counsel's submiss{on, the grievor was presented with many opportunities between January 1990 and Novemper 1992 to brin~ her concerns to the attention of management. Counsel argu~d that the grievor ,"!:. 14 I I could have said something in March of 1990, and if she had it would have given the employer an opportunity to do something about it. Counsel suggested that the evidence was clear that the grievor knew that she had a complaint and that she felt some serious adverse effects Counsel pOinted - -, out that as a result of the events of March 1990, the grievor did not work , r ,f~7 1- again for the Ministry until December The fact that she did not wish to ~ ~ alienate the employer was not justification for not rai~ing her concerns r.', with respect to this. Counsel argued that in February 1 991, ttle grievor had another opportunity to bring her complaint or differeri\c~ ~o the attention of t~e employer when she was advised that her employment status was "1 s't Season Probationary" This 'designation, also resulted in her receiving a lower w~ge rate In counsel's view, if the grievor felt that these ,further adverse effects were the result of earlier discrimination she should have brought them to the attention of the employer It was significant, in counsel's submission, that she did not. 0 .' '"'\ .., - Counsel also argued that the grievor could have in July 1991 raised her discrimination complaint in the context of her efforts to obtain a roll-over .counsel'suggested that the grievor's 'letter of July 17, 1991 did not do so 'Counsel stibmitted that the grievor could have raised her discrimination complaint in 'March 1992 when she was again required to resign from employment, and when she once again lost all accumulated seniority rights While the grievor subsequently filed' a grievance with respect to the employer's failure to roll her over in May 1992, she did not actually file a discrimination grievance until November 1992 - more than two years after the alleged discrimination took place and following, many opportunities to t - - -- "' '. lS ,J make her concerns about discrimmation known to tne employer In counsel's submission, the grievance was clearly out of time and should ,be , ! ~ ( ~. dismissed as such~ Counsel cited Agnew et al 0236/'88 (Dissanayake)in '" , support of this request. ~ 1 ~ ~ '~ Union Argument ~ Turning to the timeliness Issue first, Mr Leeb argued that the evidence . established that the grievor did not form a subjective awareness of the , , - 1-'- fact that she had a complaint or difference with tne employer until the fall .... t 4..... .r- I of 1992, and when she did form this awareness she filed her grievance - ."i Given~, the decision of the Divisional Court in Pierre (unreported decision da!ed September 5, 1990), the grievance was, Mr Leeb' argued, timely Mr . Leeb noted that while the grievor was unhappy, she was not fammar with .., the Collective Agreement or with a unionized workplace She did not have ~ ~ ~ knowled~e "of her rights, and until she obtained that knowledge she was not / in a position to enforce them ~ ;" ~ Mr Leeb also argued that the grievor was not affected by the employer's actions until sometime after the Memorandum of Settlement was reached . A .; and she was not rolled over into the classified service The grievor did not, at that time, sit on her rights. Rather she sought to obtain' a roll-over by making application to the joint committee She advise-d the employer of -' this, an~ wh~n it bec"~me clear to her that she would not be rolled over, and " f when the employer required her to resign from employment in March' 1992, again because of maternity, the grievor filed a grievance These facts, Mr Leeb argued, indicated that as soon as the grievor became aware of her rights she acted on them. And when she finally became aware of her discrimination complaint, she filed a grievance Mr Leeb urged the Board to f, 16 ; I I seize Junsdiction oyer the gnevance on this basts alone / : i ;-0.. ~ f; ,,~ Mr Lee~ conceded th~t ~rticle A was not irLthe Coll1ctlve Agreem_~nt m March 1990, when the grievor was asked to sign a form officially ~, terminatir:'l9 her employment and when the grievor turned down the employer's offer of seasonal employment. He argued, however, that the i Ontario Hum;:}r:l~ Rights Code was in effect at this time, -and that that statute - imposeg a 9uty to accqmmodate on the employer, and additionally required r it .not ~Q discriminate against employees on prohibited grounds of which . ....." i '" ~ _ ' gender was one Mr Leeb argued that pursuant to a number of GSB awards, . ,"\-~ the~~oarg has the authority to apply the Human Rights Code to' an e~'ercise '- of mana.gement 9iscretion, and pointed out, moreover, that the employer is <.. bpunq by its own policies and procedur;:s. In Mr Leeb's view, the facts ~ aqdu~ed for the purpose of the preliminary objections indicated that the , ~ to. grievor, jl'J not being rolled over, was being discriminated agamst. Mr Leeb -' r. took the position that the only reason the grievor'~was~ not now a member of the classified staff was because she was a woman who, in December 1989, - had a baby In the ,union's view, this clearly constituted discrimination J - !, ,-' , In Mr ,Leeb~s submission, the authorities were to the effect that the Board -,;'< does have jurisdiction to re'0ew m~nagement actions in a case of this kmd, , ~ and as the grievor did ,not have a subjective a.wareness of a breach until \ well into the process, the union took the position that this was an appropriate ca.se for the B~oard to do so. In conclusion, the union asked that the employer's preliminary objections be dismissed, and that the case proceed on the merits. oj (( . ..l'.' . 17 l r - Employer. Reply - In reply, employer counsel noted that the gnevor's complaint: or 'dIfference . >rJ. j - -~ -. arose in 1990 and did not; at that time, Involve a roll-over Wffat it 'Involved ,- - t was 'employment with the employe-r The grievor turned down a job, a nd If ther~ w~s something about that which concerned her, and on the -evIdence - ~ , there was, she could have and should have, counsel argued, made that - [ concern known at that time Moreover, counsel reiterated {hat she had many j opportunities thereafter to make her concerns known but failed to db so In . counsel's submission, not only was the Board' without Jurisdiction to hear the grievor's discrimination complaint, but the grievance itself was long -' ... out of time and should be dismissed as such -" 1 - Decision ~ Having carefully considered the evidence and arguments of the' parties, we , -- - have come to the conclusion that the grievance must, pursuant to'the mandatory time provisions of Article 27 of ttie CoHective Agreement, be , dismissed - , , ~ Given our findings with respect to the time limits, it is not necessary to make any findings with respect to the appiicabllity- of the Ontario Human Rights Code to management actions in early 1990 However,and for whatever these observations are worth, even assumihg that that Code , - applied, that we were required to interpret it and that the employer did have ~ duty to accommodate the grievor in March 1990, that duty tannot be , exercised in a vacuum. In this case, the evidence establishes that' the employer voluntarily offered to make an accommodation to the gnevor The grievor turned it down and did not request any other accommodation In response Indeed, the ~vidence is clear that the grlevor stated that she - .' 18 wIshed to remain at home WIth her child This eVidence does not, in our , VIew, indicate that the employer discriminated against the grievor at this .\ J time VVhich!- in OIJ! yie~, i~ the relevant time to consider In addition, It is not, imrne9ipt~!y apparent to us that the Ministry had, in March 1990, any , oblig~tions, Collectiv~ A~reement or, otherwise, to this individual However, w~ are making no findings with respect to the ailegations of discrimination , ~ " in this c.~s~, and ..note that a Human Rights complaint has also been flied As ~ ~ indicat,ed belovv:, QU( decision. in this case is based on our finding, that the - \ , ~{ grievance is out o~ tim~ { I With respect to the timeli!less obj~ction, we can only find that it must be upheld Beginning in March 1990, and on several occasions thereafter, the grievor knew that she had a complaint or difference with her employer, but fpr one reason Qr ~l1other she chose not to pur$ue that comptaint by ~ ' informally bringing i~ to the employer's attention or by filing a grievance with respect to it. On many oc~asions! including when the grievor lost all of her seniority in March 1990, when she failed to obtain employment until - December 1990, when she resumed employment in 1991 once again as a "1 st Season Propationary,"_ employee, when her wages did not increase In '991 ,and when she W~s again required to sign another "Group 3 Seasonal' , ' Unclassified Staff Termination of Employment" form In March 19~2, the , ~ r grievor had a complaint or difference with the employer and knew that she , had a complaint or difference with the employer The grievor testified to I believing ory all of tnes~ occasions that she had a complaint or difference . with the employer She did not, however, file a grievance within twenty I days as required py Article 27 -- ---- - -, .. 19 ~ The, evidence is ~I,so clear anc;i uncontraOlcted that had the grievor brought , , ~, her complaint or difference to the attention of the employer in March 1990, the e,mplQyer would. have b~~n in a position to do something" apol!t i~. Havmg - ~ waited to do so until November 1992, the employer has lost that opportunity The mandatory time periods are in'the grievance ,procedure for a reason, and the Board has no authority to relieve a-gainst them even if it - was 'so inclined Having found as a matter of fact, given. the evidence and - submissions of the parties, that the grievor knew that she had a complaint or difference with the employer several years before her griev~nce was }. )-. .. eventually filed, we have no choice but to dismiss the grievance A few final observations I are in order It should be noted that tnere was some evidence, from both the grievor and employer witnesses, with respect to the status of another employee who began seasonal employment at the same time as the grievor and who ended up benefiting from the roll-over provisions of the Memorandum olf Settlement. It was suggested that this individual performed some of the grievor's work. Having considered this ~ evidence, we cannot find that he performed any of thegrievor's work, and even if we had so found, we would not have attached any material significance to him having' done so As indicated above, we are dismissing this grievance on the basis of the mandatory time limits in the Collective Agreement. One final point. The facts do not indicate that the employer has failed to abide by any of its stated policies. The policy dealing with requests for maternity leave from probationary employees indicates that such leave will only be granted \ in the most extraordinary circumstances A prerequisite to granting such leave, it seems to us, would be a request for it. In the instant \. ,. ;> 20 \ - case., we did not hear any evidence of any such request, and It is hard to see, T \ on the evidence before us, how that policY' might 'have been breached '> .' " Accordingly,'-ari~l for the foregoing reasqris, tliei grievance is; dismIssed I .J; '- DATED 'at Toronto, this ?;nd day of T~bru-ar-:y 19,94 I itl I ~ ,'{, l-"" ' ^~, ~ . ---------------- . Willi~Plan , , d- air~erSO j , -. l~- r T ~rQ~~~.,!3~gd .. ( ., Member .. &~ ~ - ~. t , D ClarK ~, :Member '1 " ~ r. '.j. .' -, .. " - ~ ~ , 0 ;' ,;- r, .", " , ~ ~, '. , ,~ / -'