HomeMy WebLinkAbout1997-1956.Twomey.99-12-16 Decision
o NTARW EMPU) YES DE LA COURONNE
CROW"! EMPLOYEES DE L 'ONTARW
GRIEVANCE COMMISSION DE
.. SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONE/TELEPHONE, (416) 326-1388
180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396
GSB # 1956/97
OPSEU # 98B043
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(Twome, )
Grievor
- and -
The Crown III RIght of Ontano
(Niagara Parks COffiffilssIOn)
Employer
BEFORE RIchard Brown Vice Chair
FOR THE Don MartIn
GRIEVOR Gnevance Officer
Ontano PublIc ServIce Employees Umon
FOR THE Carla Zabek
EMPLOYER Counsel
Hicks Morle, Hamilton Stewart Stone
Barnsters & SolIcItors
HEARING December 14 1999
KevIn Twomey contends he IS entItled to a salary "top-up" for a parental leave taken from
December 1 1991 to February 24 1992 The gnevance was not filed untIl October 17 1997
The employer argues It should be dismIssed as unTImely
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In 1991 when the leave was taken, the employer was not paYIllg top-up to employees takIng
parental leave. Tills polIcy changed III 1994 when the employer elected to follow a Management
Board Secretanat direcTIve requlllng a "top-up" for parental leave III the Ontano PublIc ServIce
(OPS) The direcTIve was a response to a human nghts complaint challengIllg the prevIous OPS
practIce of paYIng a "top-up" for adopTIon leave but not for parental leave The dIreCTIVe
prompted the employer to begIn paYIng a "top-up" for both parental leave and adoptIon leave
Counsel for the employer contends ItS pnor practIce of not paYIllg a "top-up" for eIther
adopTIon or parental leave was not a vIOlatIon of the Human Rights Code even If the Code
was vIolated by the pre-1994 praCTIce In the OPS Argument on tills Issue aWaits a rulIng on the
TImelIness obJectIon.
Mr Twomey filed a gnevance In 1997 shortly after leanung hIS brother-Ill-Iaw an
employee of the Mimstry of Transport, receIved a "top-up" for parental leave
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ArtIcle 13 of the collectIve agreement states
Any Employee who belIeves he/she has a complaint or dIfference WIth the Employer
shall first discuss the complaint or dIfference With hIS or she SupervIsor WithIn twenty
(20) days of first becomIng aware of the complaInt or difference.
The employer contends the gnevance IS unTImely because It was filed more than twenty
days after the gnevor knew he had not been paid a "top-up" AccordIng to the uruon, tIme dId
not begIn to run until the gnevor spoke to ills brother-In-law In 1997
In 1991 the gnevor knew he had not been paid a "top-up" In other words, he was
then fully aware of the factual basIs for ills gnevance What he learned In 1997 was that there
mIght be a legal argument that a "top-up was oWing. In my VIew TIme began to run when the
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gnevor learned of the facts giVIng nse to ills gnevance, not when he learned of subsequent legal
developments. The contrary conclusIOn would mean a gnevor could Wait Indefirutely before
makIng Inqumes about the relevant law I conclude Mr Twomey did not file ills gnevance WithIn
the time hmIt specIfied by the agreement.
III
The only remaIrung question IS whether I should extend the time hrrut by utihzIng the discretionary
power conferred upon me by s 48( 16) of the Labour Relations Act, 1995 Under that section,
a time llffilt may be extended only If there are reasonable grounds for an extensIOn and It would
not cause substantIal preJudice to the party OpposIte
The factors to be consIdered In determInIng whether there are reasonable grounds for
an extensIOn were Identified by Mr Burkett In Becker Milk Co and Teamsters Union (1978),
19 L.AC (2d) 217
These are (i) the reason for the delay given by the offending party. (iI) the length of the
delay' and (in) the nature of the gnevance. If the offending party satisfies the arbItrator
notwIthstanding the delay that It acted With due dihgence, then If there has been no
preJudice the arbItrator should exerCIse ills dIscretIon In favour of extending the time-
hrruts. If, however the offending party has been neglIgent or otherwIse to blame for the
delay eIther In whole or III part, the arbItrator must nevertheless consIder the second
and tillrd factors referred to above In deCIding whether reasonable grounds eXIst for an
extensIOn of the time hrruts. (page 220)
These factors were consIdered III Bakery Glaco and Canadian Association of
Automobile Yf,orkers (1991) 21 L.AC (4th) 265 (Waman) where a discharge gnevance was
filed four and one-half months late and the UnIon offered no explanation for the delay GIven the
length of the delay and the absence of any excuse or JustIficatIOn, ArbItrator Waman refused to
extend the contractual hmItation penod, even though the gnevor had been dIscharged.
The grounds for claimIng an extensIOn In the Instant case are much weaker than those In
Bakery Glaco because the gnevor has not been dIscharged and he delayed more than five
years In filIllg ills gnevance. Accordingly I dechne to extend the time hmIt.
The gnevance IS dIsmIssed.
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Dated at Toronto, Ontano thIS 16th day of December 1999
Richard Brown, Vice-Chair
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