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HomeMy WebLinkAboutUnion 10-05-31 óîèô÷ïûèè÷êíöûîûêúóèêûèóíîÚÊÍÇÕÔÈÌÇÊÉÇÛÎÈÈÍÈÔ×íÎÈÛÊÓÍ ðÛÚÍÇÊê×ÐÛÈÓÍÎÉ ÛÉÛÏ×ÎØ×Ø ûÙÈ  çÎÓÍÎõÊÓ×ÆÛÎÙ×        ú÷èå÷÷î    ëç÷÷îéåûãùûêðèíîôíéìóèûð ÈÔ×w×ÏÌÐÍÃ×Êv   ÛÎØ   íîèûêóíìçúðóùé÷êæóù÷÷ïìðíã÷÷éçîóíî ÈÔ×wÇÎÓÍÎv       ûåûêø        éÍÐ×ûÊÚÓÈÊÛÈÍÊïÛÊÓÐÃÎûîÛÓÊÎ  ô×ÛÊÓÎÕÔ×ÐØûÌÊÓÐ   íÈÈÛÅÛíÎÈÛÊÓÍ     ûìì÷ûêûîù÷é  öÍÊÈÔ×ÇÎÓÍÎïÛÊÃïÛÙÑÓÎÎÍÎ  öÍÊÈÔ××ÏÌÐÍÃ×ÊøÛÆÓØùÔÍÎØÍÎ ûåûêø  éÇÚÒ×ÙÈÈÍÈÔ××ÏÌÐÍÃ×ÊtÉÌÍÉÓÈÓÍÎÅÓÈÔÊ×ÉÌ×ÙÈÈÍÈÔ×ÉÙÍÌ×ÍÖÏÃÒÇÊÓÉØÓÙÈÓÍÎÍÇÈÐÓÎ×Ø Ú×ÐÍÅÈÔ×ÌÛÊÈÓ×ÉÛÊ×ÛÕÊ××ØÈÔÛÈóÔÛÆ×ÈÔ×ÒÇÊÓÉØÓÙÈÓÍÎÈÍÔ×ÛÊÛÎØØ×È×ÊÏÓÎ×ÈÔÓÉÕÊÓ×ÆÛÎÙ× èÔ×ÕÊÓ×ÆÛÎÙ×ÛÖÖ×ÙÈÉÌÛÊÈÈÓÏ××ÏÌÐÍÃ××ÉÓÎÙÐÇØÓÎÕÙÛÉÇÛÐÉÛÎØÅÛÉÛÊÕÇ×ØÍÎÈÔ×ÚÛÉÓÉÍÖ ÛÕÊ××ØÖÛÙÈÉÓÎÙÐÇØÓÎÕÙ×ÊÈÛÓÎØÍÙÇÏ×ÎÈÛÊÃÏÛÈ×ÊÓÛÐèÔ×ÕÊÓ×ÆÛÎÙ×ÛÐÐ×Õ×ÉÈÔÛÈ  èÔ××ÏÌÐÍÃ×ÊÔÛÉÙÍÎÈÊÛÆ×Î×ØÈÔ×ÛÕÊ××ØÇÌÍÎÐÛÎÕÇÛÕ×ÍÖÛÊÈÓÙÐ×É  ÕÛÎØ  Ù ØÇÊÓÎÕÈÔ×È×ÊÏÍÖÈÔ×ÌÛÉÈÈÔÊ××ÙÍÐÐ×ÙÈÓÆ×ÛÕÊ××Ï×ÎÈÉÚÃÖÛÓÐÓÎÕÈÍÌÊÍÆÓØ×ÈÔ×ÆÛÙÛÈÓÍÎÌÛà Ì×ÊÙ×ÎÈÓÎÐÓ×ÇÍÖÚ×Î×ÖÓÈÉÛÎØ ÍÊÚ×Î×ÖÓÈÉÈÍ×ÏÌÐÍÃ××ÉÅÔÍÈÍÍÑÌÊ×ÕÎÛÎÙÃÛÎØÌÛÊ×ÎÈÛÐ Ð×ÛÆ×  úÃÅÛÃÍÖÊ×Ï×ØÃÈÔ×ÇÎÓÍÎÛÉÑÉÈÔÛÈÈÔ××ÏÌÐÍÃ×ÊÚ×ØÓÊ×ÙÈ×ØÈÍÙÍÏÌ×ÎÉÛÈ×ÛÖÖ×ÙÈ×Ø ×ÏÌÐÍÃ××ÉÊ×ÈÊÍÛÙÈÓÆ×ÐÃÈÍûÌÊÓÐ  èÔ×ÕÊÓ×ÆÛÎÙ×ÅÛÉÖÓÐ×ØÍÎïÛà  èÔ×ÖÛÙÈÉ ÛÊ×ÉÇÏÏÛÊÓÂ×ØÚ×ÐÍÅ  ûÊÈÓÙÐ×  ÕÍÖÈÔ×ÙÍÐÐ×ÙÈÓÆ×ÛÕÊ××Ï×ÎÈÌÊÍÆÓØ×ÉÈÔÛÈÖÍÊÌÛÊÈÈÓÏ××ÏÌÐÍÃ××ÉÈÔ× ×ÏÌÐÍÃ×Ê 2 accordance with the pre-existing language in the collective agreement expiring March 31, 2003. 6. There is no dispute that the employer misapplied these provisions over three successive collective agreements and that this misapplication was as a result of a mistake by the employer. 7. By letter dated November 18, 2008 from the Director of Compensation, the employer confirmed to Ms. Phillips-Scott that it was correcting her payment in lieu of benefits to the maximum of 52 weeks taken for her most recent leaves. It also confirmed that, during her prior two pregnancy and parental leaves, she had been paid for a total of 35 weeks rather than 52 weeks. The Director further advised that, as the hospital was unaware of the issue and as it had been "a considerable period of time since those previous leaves, and the issue was not brought forward until now, I regret to inform you that we are not obligated to go back that far to make further adjustments." Ms. Phillips-Scott's first period of leaves was from June 2003 to June 2004. Her second period of leaves began in July 2005 and ended in June 2006. 8. As a result of the issue being raised by Ms. Phillips-Scott, the employer corrected its practice. The employer also reimbursed part-time employees who were on pregnancy and parental leave on or after January 4, 2008. The employer took the position that reimbursing affected employees back to January 4, 2008 was appropriate and sufficient in the circumstances. Following further discussions between the parties, the grievance was filed on May 19,2009. 9. Ms. Phillips-Smith had previously been overpaid. The employer was recouping that amount over time from her pay. She was therefore paying particularly close attention to her pay stubs while on leave. She noticed that the percentage-in-lieu amount had stopped forming part of her itemized pay, inquired why, and so began the process leading to this arbitration. 10. Between the summer of2006 and April 2008, the employer paid employees on pregnancy and parental leaves on a biweekly basis. A copy of a letter dated November 22, 2006 to a Ms. Critch, a part-time employee then taking both leaves (according to Exhibit 11), enclosed a breakdown of calculations and payments. That breakdown states "Benefit/vacation top up - 35 weeks". Prior to the summer of 2006, the employer paid the percentage-in-lieu amounts as a 3 lump sum. A copy of a breakdown dated December 3, 2003 to a Ms. Sparks, another part-time employee then taking leave, references a weekly percentage "benefit top up" multiplied by 35 weeks. In both cases, the reference to 35 weeks should have been 52 weeks. I have no evidence that these employees did not receive these documents. 11. Ms. Phillips-Smith appears to have been provided with a copy of a chart (Exhibit 6) dated July 2002, prior to her first leave, which she may have relied on in her earlier leaves. At worst, the chart is ambiguous. At best, it indicates that percentage-in-lieu may continue for 52 weeks (17 plus 35). It sets out entitlements and appears to appropriately identify pregnancy (referred to as 'maternity') leave provisions to a maximum of 17 weeks. Under parental leave it identifies income provisions for part-time/casual employees as including "E.!. Benefits plus SUB to 84% for 10 weeks (to greater of average ofFTE hrs.) plus % in lieu of benefits and vacation." Under a separate heading titled "Benefits/Premium Payments" it states, "Average of % in lieu continued" with no indication of time span except an accurate title reference to "Parental Leave (up to 35 weeks)". There is also a column referring to extended leave, "beyond 52 weeks (Personal Leave)" wherein it indicates no income provisions for part-time employees and identifies that benefits/premium payments are not applicable to part-time employees during an extended leave. 12. The current collective agreement came into effect on September 10, 2007 covering the period April 1, 2007 to March 31, 2009. The two preceding collective agreements had terms of April 1, 2004 to March 31, 2007 and April 1, 2003 to March 31, 2004. Those three collective agreements contain the same language in respect of time limits for the filing of grievances: 9.02 A complaint shall not be considered as a grievance unless the aggrieved employee has first given an opportunity for her Supervisor to adjust the complaint. Such complaint shall not be considered after five (5) working days of the origin of the complaint or from the date upon which the subject matter of the complaint may reasonably be deemed to have come to the attention of the employee so affected. Failing satisfactory resolve within five (5) working days after the complaint is made, the matter may then be processed as a grievance. 9.05 A complaint or grievance ansmg directly between the Hospital and the Union concerning the interpretation, application or alleged violation of the Agreement, shall be originated under Step No.2. Failing settlement under Step No.2 within fifteen (15) days it may be submitted to arbitration in accordance with Article 9.10. However, it is 4 expressly understood that the provisions of this paragraph may not be used by the Union to institute a complaint or grievance directly affecting an employee which such employee could herself institute and the regular Grievance Procedure shall not be thereby bypassed. Any grievance by the Hospital or the Union as provided in this paragraph shall be commenced within ten (10) days after the circumstances giving rise to the complaint occurred or from the date upon which the subject matter of the complaint may reasonably be deemed to have come to the attention of the Hospital or the Union. 9.06 Where two or more employees have identical grievances and each employee would be entitled to grieve separately, they may present a group grievance in writing identifying each employee who is grieving within ten (10) days after the circumstances giving rise to the grievance have occurred or a reasonably to have come to the attention of the employees so affected. The grievance shall be originated at Step No. 1. 9.07 Failing settlement under the foregoing procedure of any grievance between the parties arising from the interpretation or alleged violation of this Agreement, such grievance may be submitted to arbitration as set forth in Article 9.10. If no written request for arbitration is received within fifteen (15) days after the decision under Step No.2 is given, it shall be deemed to have been settled and not eligible for arbitration. 9.09 No matter may be submitted to arbitration which has not been carried through all the requisite steps of the Grievance Procedure. Where no answer is given within the time limits specified in the Grievance Procedure, the grieving party shall be entitled to submit the grievance to the next step of the Grievance Procedure. 9.12 The Arbitration Board shall not have jurisdiction to amend or add to any of the provisions of the Agreement, or to substitute any new provisions in lieu thereof, nor to give any decision inconsistent with the terms and provisions of this Agreement. 9.14 The time limits fixed in both the grievance and arbitration procedures may be extended by written consent of the parties to this Agreement. 13. Article 1.01 of those three collective agreements is also identical and provides: 1.01 It is the intent and purpose of this Agreement to establish and maintain an harmonious collective bargaining relationship and to provide a method for the prompt and equitable adjustment of grievances of employees in the employ of the Hospital, or of disputes between the parties without unnecessary delay or expense, ... 14. A preliminary list and approximate calculation compiled by the employer indicates a 5 potential liability to the employer of approximately $65,000 in order to make whole those part- time employees who have taken pregnancy and parental leaves longer than 35 weeks in the period April 1, 2003 to January 4,2008. * * * 15. It was the position of the union that the grievance was expressly filed under three collective agreements and that I therefore have the jurisdiction to remedy the employer's mistake to April 1, 2003. The union further argued that the claim involves an entitlement in the nature of a wage payment, and that this entitlement is in the nature of a vested or accrued right. It relied on the Supreme Court of Canada's decision in Dayco, infra, to argue that, although the right to the percentage-in-lieu payment may have arisen under prior collective agreements, those rights could not be expunged by the expiry of those agreements. Not to take jurisdiction, argued the union would result in significant prejudice; a right without a remedy. The union argued that since Dayco it was clear that an arbitrator has the jurisdiction to hear, determine and provide a remedy for a right accrued under a prior collective agreement. It argued that this was a continuing breach affecting an identifiable group and that as a complaint could be brought within one year after the last incident in the series under the Human Rights Code (the "Code"), authority existed to provide a remedy back to 2003. 16. The union also argued that the employer could not rely on its mistake to found an argument that the union failed to act in a timely way. The union argued that there was no way for the union or its members through normal diligence to know of the mistake until it came to the attention of one employee who was actively and beyond normal expectations scrutinizing her pay. 17. The employer argued that there was a distinction in the nature of the right being claimed by the union from that in Dayco. Dayco and later cases, argued the employer, referred to rights and a status accruing over time or service in employment, and over different collective agreements, such as pension or seniority entitlements. Each claim made in this case, argued the employer, did not continue beyond the expiry of the particular leave and is a claim for compensation. 6 18. The employer argued that my jurisdiction was limited to considering the matter under the terms of the current collective agreement. In the alternative, the employer argued that, even assuming jurisdiction to interpret and apply the three collective agreements, the claim was simply too late. The employer argued that the doctrine of delay/laches applied. The employer noted that it was not taking issue with any delay in the filing of the grievance in May 2009 given that the matter had been raised in August 2008. The issue, argued the employer, was that the union could not claim relief prior to the time limits contemplated by the collective agreement and could not claim relief under predecessor collective agreements. It noted that the timeliness concern was raised as early as November 2008 in its letter to Ms. Phillips-Scott. 19. The employer argued that no reason for the delay had been asserted other than that employees were pre-occupied. It noted that there was no suggestion other than that the mistake was inadvertent on the hospital's part and that, although not previously raised by the union, there was nothing in the evidence to support a claim under the Code. The employer argued that the mistake was not hidden and could have been ascertained through normal diligence. It argued that the employer's response to remedy the matter back to January 4,2008 was more than appropriate in the circumstances. The employer argued it was necessary to consider the prejudice to the hospital represented by the potential unbudgeted liability represented by the claim in a time of broader public sector fiscal restraint, and given the time limits in the collective agreements. 20. In reply, the union argued that the appropriate assessment was what had been negotiated. It argued that the percentage-in-lieu payment flowed from an accrued right as employees had to meet certain service requirements before becoming eligible for the leaves. The cases relied on by the employer, argued the union, either pre-dated Dayco, or did not refer to it. It argued that the payment of money was not prejudice. Rather, it argued, prejudice arose in the ability or not to respond to the claim and present a case; not an issue here, as the claim was acknowledged on the merits. The collective agreement did not contain mandatory time limits, such as the deemed abandonment of grievances, argued the union. If there are competing equities, argued the union, they should be resolved in favour of the part-time employees affected. * * * 7 21. The union referred me to and I have reviewed the following cases: Dayco (Canada) Ltd. v. CAW-Canada [1993] 2 S.c.R. 230; Red River School Division v. Red River Division Assn. No. 17 of the Manitoba Teachers Society, (1972) 25 D.L.R. (3d) 106 (Q.B.); Algonquin and Lakeshore Catholic District School Board v. OECTA [1999] O.L.A.A. No. 475 (Roach); Air Canada v. lAM (Graham), (1999) 80 L.A.c. (4th) 224 (O'Neil); and Huntsville District Nursing Home and Ontario Nurses' Association, (2001) 106 L.A.c. (4th) 312 (Lynk). 22. The employer referred me to and I have reviewed the following cases: Canadian General Electric Co. (Davenport Works), (1952) 3 L.A.C. 980 (Laskin); Auto Screw Machine Products Ltd. v. USWA, Local 7105, (1972) 23 L.A.c. 396 (D.L. Johnson); Alexander Marine & General Hospital and Ontario Nurses' Association, unreported decision of Arbitrator Burkett dated October 13, 1989; Atlantic Packaging Products Ltd. and c.P.U, (1993) 34 L.A.c. (4th) 59 (Starkman); FPC Flexible Packaging Corp. v. Graphic Communications International Union, Local 500-M (Annette Grievance), (1998) 77 L.A.c. (4th) 198 (Bendel); and Cambridge Memorial Hospital v. Ontario Nurses' Assn. [2006] O.L.A.A. No. 745 (Herlich). 23. I note at the outset that, although the union stated that the employer's actions affected an identifiable group under the Code, it did not otherwise assert or rely on any violation of the Code in support of its position. 24. What is the scope of my jurisdiction? I start with the principle that an arbitrator has no jurisdiction beyond the collective agreement under which he/she is constituted. Arbitrators are creatures of statute and derive their authority from the collective agreement. Additionally, since the Supreme Court of Canada's decision is Dayco, supra, there can be no doubt that an arbitrator can acquire and exercise jurisdiction in respect of rights set out in a collective agreement even though the term of that collective agreement has otherwise expired. However, these statements mayor may not reflect the same question. The decision in Dayco does not specifically address the question of whether an arbitrator may be constituted under more than one collective agreement at once. 25. However, that issue was discussed in the decision in Huntsville District Nursing Home, 8 supra, which qualifies the starting principle noted above. After reviewing Dayco, Air Canada, supra, and other cases, the arbitrator concluded: 35 I am satisfied that the accumulated weight of judicial and arbitral caselaw has established that an arbitration board may have the jurisdiction to hear, decide and remedy a claim respecting an employment right or entitlement that had crystallized or accrued or vested under a prior collective agreement, notwithstanding the rule in Re Goodyear. However, for jurisdiction to be acquired under this second variance, each of the following three pre- conditions must be met. 36 First, the employment right or entitlement that is being claimed must have accrued or vested under the prior collective agreement(s). To put it another way, an employment right found in a collective agreement expires with the termination of the collective agreement, unless the right or entitlement can be said to have crystallized or vested or accrued prior to the end of the agreement. Having crystallized, these rights remain grievable and are capable of arbitral remedy, unless the parties have extinguished these rights by some subsequent agreement. Mr. Justice La Forest, at page 641 of the Dayco ruling, stated that: As a simple principle of contract law, the enforcement of a contract can take place well after the contract itself has expired. What is at issue in these cases is exactly that - the enforcement of the collective agreement to rectify damage appearing after the expiration of the agreement... It is not the survival of the term per se that allows for arbitrability - no one disputes that the term is extinguished in the sense that it has no prospective application. Rather it is that the rights created by that term vest or accrue. 37 Whether a right or entitlement can be said to have vested or accrued prior to the expiry of a collective agreement is to be judged on the circumstances of each case. However, it appears clear from Dayco that crystallization or accrual would have an ordinary contractual meaning (vesting would appear to have a more specific, pension-related meaning), such that the fulfillment of a promise, or the satisfaction by one party of its side of a mutual obligation, would be ordinarily sufficient to acquire that status. 38 Second, the arbitration board must determine whether the grievance before it has been filed under the previous collective agreement or agreements where the claim in question has been said to have crystallized. This is ordinarily determined by examining whether the grievance has made any specific references in its language to an earlier date when the claim in question could be said to have accrued: Re Air Canada, supra; Re Canadian Broadcasting Corp., supra. For example, in Re Beachville Lime Ltd., supra, the grievance was filed in December 1999, and specifically referred to incidents that occurred in 1994 and 1995. These references were sufficient to imply: ... that the grievance is filed under the collective agreements in effect at those times. Accordingly, it must be found that the arbitrator has jurisdiction to hear and consider this grievance as it relates to rights that may have accrued to the grievor under the collective agreements in place in 1994 and 1995. [At p. 359.] 39 And third, the grievance must satisfy any procedural or timeliness provisions in the collective agreement, subject to their modification by statute: Re Beachville Lime Ltd., supra. 9 26. The reference in paragraph 38 of the quote to collective agreements in the plural, focuses on the nature of the claim and a determination of under which collective agreement that claim can be said to have crystallized. I digress briefly, therefore, from the question of one's jurisdiction under multiple collective agreements in order to initially consider the first pre- condition set out in Huntsville District Nursing Home. The union relied heavily on this decision and the decision in Dayco in support of its position. 27. Firstly then, has the entitlement claimed 'accrued' or 'crystallized' under a prior collective agreement? The union asserted that the entitlement to the percentage-in-lieu payment for up to 52 weeks was in the nature of an accrued or vested entitlement. In so asserting, the union relied on the following comments in Dayco: 46 Counsel for the company submitted that the concept of "vested rights" has no place in a collective bargaining context, where every collective agreement is viewed as a fresh start, revoking the agreement that came before. This view, commonly stated by labour lawyers, must be restricted to the context of the prospective relationship between the parties. Terms such as "revoking" or "displacing" the prior collective agreement should be taken to mean simply that the old agreement ceases to have prospective effect. An example of the use of the terminology in its proper context is found in an early arbitral decision of Gale J. (as he then was), writing for an arbitration panel in In re De Havilland Aircraft of Canada Ltd. and U.A. w., Local II 2 (1950), 2 L.A.C. 465, at p. 468: The very purpose of the new Agreement was to set up the Contract between the Company, the Union and the individual employees and it is perfectly apparent that it was intended to displace any Contract or Contracts which had theretofore existed. If it were otherwise, all parties would be constantly in doubt as to whether they were bound by the terms of Contracts apparently no longer in force. It is our view that the whole theory of collective bargaining demands that the current Collective Agreement is to contain and represent the whole Agreement between the parties. The new agreement "displaces" the old one, which is no longer in force. But this is with respect to the current employment relationship, and says nothing about the previously accrued rights of the parties... Another example of the importance of context is seen in Brown & Beatty, supra, where the authors speak of a new agreement "extinguishing" the terms of the old agreement. This may be an unfortunate term, which suggests some retroactive rescission of contractual obligations between the parties. However, it is clear from the cases cited by the authors that any extinguishment has prospective effect only. Other cases on this point are reviewed below, and I have found no case that suggests that accrued rights are expunged once a new collective agreement is negotiated. Moreover, I see nothing differentiating the promise to pay retirement health benefits from promises to pay regular wages or vacation pay. All of these can be enforced after the termination of the agreement. Any other conclusion would render meaningless a wide range of promises to employees that might extend beyond the 10 expiration of a collective agreement. In addition to unpaid wages and retirement benefits, disability benefits owing to former employees and pension benefits to retired workers would also be placed in jeopardy. (emphasis added) 28. This description of an accrued or crystallized right is extremely broad and ought to be read in context with the Court's later statement that enforcement is available "to rectify damage appearing after the expiration of the agreement" (see the excerpt quoted in Huntsville District Nursing Home above). 29. However, accepting for the moment the characterization in Huntsville District Nursing Home, 'crystallization' of an entitlement appears to encompass the circumstance of the satisfaction by one party of its side of a mutual obligation. In that context, the affected employees in this case have fulfilled their part in taking pregnancy and parental leaves so as to 'crystallize' their entitlement to payment for the percentage-in-lieu for the period of their leaves, to a maximum of 52 weeks, thereby fulfilling the first pre-condition set out in Huntsville District Nursing Home. 30. It is also the case that the gnevance before me "has been filed under the collective agreement or agreements where the claim in question has been said to have crystallized". The claims for the percentage-in-lieu payment arose as employees took pregnancy and parental leaves at various times over the course of the three collective agreements in operation since April 1, 2003. The grievance before me makes specific reference to three collective agreements and the same provision in all three agreements is alleged to have been violated. The grievance expressly seeks relief to April 1, 2003. Having regard to the comments at paragraph 38 of Huntsville District Nursing Home, I find that the grievance was filed under all three collective agreements and, as such, I have the jurisdiction to hear and consider the grievance as it relates to alleged entitlements arising under those collective agreements. 31. Taking jurisdiction over this allegation of a breach over successive collective agreements also makes sense from a labour relations perspective, in that it avoids the necessity of multiple proceedings with the associated delay and additional costs to the parties. See Alexander Marine & General Hospital, supra. As the Divisional Court also held in OPSEU and The Queen, cited at 11 paragraph 82 of Air Canada, supra: To deny jurisdiction without inquiry into the merits of the dispute would produce a dangerous and far-reaching result whose consequences could not be predicted. The delay in launching the grievances and the policy considerations submitted by the employer may all be relevant to the determination of the dispute. In my opinion, it is more appropriate that these matters be considered in the context of the grievance procedure rather than a threshold question of jurisdiction. I, therefore, conclude that the Board was wrong in finding that it had no jurisdiction to consider a grievance under an expired agreement. (emphasis added) 32. I move then to the third pre-condition; that the grievance must satisfY any procedural or timeliness provisions in the collective agreement, subject to their modification by statute. As noted in Air Canada, supra, at paragraph 74: . . . the question of jurisdiction to inquire into a grievance at all, is different from the question of the arbitrability of such a grievance having regard to the provisions of the collective agreement, for example, as to timeliness, delay and other procedural matters. 33. Also, in Red River School Division, supra, the Manitoba Court of Queen's Bench noted: 24 To close, then, expiry of the contract out of which the claim arises does not, without more, put an end to the right of either of the parties to the agreement to call for settlement of a dispute arising thereunder in accordance with the arbitration procedure to that end established by their contract, when the dispute concerns the existence of a benefit allegedly vested during the term of the agreement in question, and is within the terms of reference of the arbitration clause. (emphasis added) 34. Notwithstanding that the grievance was not filed until May 2009, the employer conceded that the issue was raised as of August 2008. It made its arguments regarding time limits and delay based on the August 2008 date rather than the date of the actual filing of the grievance. 35. Article 9.02 of each of the collective agreements stipulates that a complaint shall not be considered after five working days of the origin of the complaint or from the date upon which the subject matter of the complaint may reasonably be deemed to have come to the attention of the employee so affected. In Article 9.05, a policy grievance shall be commenced within ten days after the circumstances giving rise to the complaint occurred or from the date upon which the subject matter of the complaint may reasonably be deemed to have come to the attention of the 12 union. Finally, a group grievance may be filed within ten days after the circumstances giving rise to the grievance have occurred or ought reasonably to have come to the attention of the employees so affected. 36. The union asserted that the grievance was not out of time in that it alleged a violation of a continuing nature. I have difficulty with that characterization in light of the collective agreement language. The claims presented by the grievance are fundamentally of an individual nature. Each employee taking these leaves was entitled to file a grievance seeking appropriate payment of the percentage-in-lieu at the time of their leaves. To the extent that one might refer to this as a continuing breach, the breach continued for the duration of that employee's pregnancy and parental leaves. Once that employee returned to work, not only had their entitlement crystallized, so too had their responsibility to raise any concern about that entitlement pursuant to the terms of the collective agreement. 37. The union's argument is based on the fact that the employer mistakenly applied the terms of the collective agreement over various employees' leaves. That is arguably the 'policy' issue. However, Article 9.05 stipulates that a policy grievance may not be used to initiate a claim directly affecting an employee where such employee could herself institute the claim. There is often an underlying policy aspect to an individual grievance. The distinction may be seen in the request for remedial relief. The union is not asking me to only address the 'policy' issue; that is, to declare a violation as having occurred and to direct the employer to correct its mistake prospectively. It is asking me to order that the employer reimburse all employees affected over a period of almost five years, notwithstanding that none of those employees (with the exception of Ms. Phillips-Scott) grieved the issue. 38. The policy issue has been resolved between the parties. The employer acknowledged its breach and has since complied with the requirement to pay percentage-in-lieu to a maximum of 52 weeks to part-time employees taking pregnancy and parental leaves. The employer also retroactively remedied individual claims to employees on leave as of January 4, 2008. The grievance was brought forward to arbitration for the purpose of claiming individual relief for those employees who took pregnancy and parental prior to January 2008. The grievance reflects 13 separate individual claims that could have been brought, as noted above, at any time during a leave or shortly following the completion of the leaves when it might reasonably be deemed to have come to the attention of the employee affected. That is, in applying Article 9.02 of the collective agreements, an arbitrator might reasonably conclude that an employee only realized that they had been 'short-changed' once the leaves were over. 39. The circumstances in the case before me are unlike those in Air Canada, supra. In that case, the collective agreement allowed for the filing of a grievance "within ten calendar days of.. . [the employee's] knowledge of the event". It was not disputed in that case that the grievor's name had been erroneously left off a list of employees who had been granted certain seniority credit pursuant to an agreement between the union and the employer, and about which the grievor was not told. It was also not disputed that the grievor only learned of the agreement some five years later and only through happenstance. While arguments were made to limit the employer's liability, they did not rely on the timeliness of the filing of the grievance. 40. I have no evidence from which to conclude that employees were unable through normal diligence to ascertain that they had not been appropriately compensated for the percentage-in- lieu over the course of their leaves. The evidence, in the form of the documentary material described earlier, suggests otherwise. August 2008 is well beyond a date that any employee on leave prior to January 4,2008 may reasonably be deemed to have learned of the shortfall in pay. Thus, I find that the remaining claims raised by the grievance have been brought well beyond the time limits set out in each collective agreement and the grievance is, in respect of those claims, untimely. Should I exercise the discretion under section 48(16) of the Labour Relations Act, 1995 as amended (the "Act"), to extend those time limits? 41. The decision in Alexander Marine & General Hospital, supra, provides, in my view, a very helpful analysis. In that case the union alleged that the employer had failed to pay shift premium to each of four grievors over five successive collective agreements between 1981 and 1988. Two of the grievors worked full-time permanent evening shifts and two worked full-time permanent night shifts. A grievance had been filed in respect of each of the five collective agreements. There was no dispute that the grievors were entitled to be paid shift premium for their hours 14 worked between 1981 and 1988 and that a 'mutual mistake' had resulted in their not receiving those entitlements. In fact, part-time employees on permanent evening and night shifts had been paid the premium from 1983. Similarly to the case before me, the employer commenced paying the shift premium from the date that the grievances were filed. Although considered prior to the decision in Dayco, the parties agreed to confer jurisdiction on the arbitration board to consider the five grievances. 42. As in the case before me, the grievors had satisfied their side of the mutual obligation; they had worked the hours, although for less pay than their entitlement. In the post-Dayco characterization, their entitlement had 'crystallized'. The issue of the arbitration board's jurisdiction to entertain both multiple grievances and successive collective agreements was not challenged. That effectively left the third pre-condition for that arbitration board to consider; whether the grievances were timely, subject to any modification by statute. The arbitration board noted that the failure to pay the shift premium was a continuing breach in that it was repeated with the issuance of each pay cheque to each grievor. It therefore found the grievance filed under the then current collective agreement to be timely in respect of the most recent period prior to the filing of the grievance, but found that the grievances were otherwise untimely. The arbitration board went on to consider whether or not to exercise the discretion under what is now section 48(16) of the Act to extend time limits. 43. The statutory discretion to relieve against time limits requires that an arbitrator be satisfied that there are reasonable grounds for the extension of the time limits and that the employer will not be substantially prejudiced by the extension. 44. In Alexander Marine & General Hospital, the majority of the arbitration board exercised the discretion to extend the time limits for the filing of the grievances under the two most recent collective agreements. In doing so, the majority stated: 7. The factors to be considered in exercising discretion under section 44 (6) [now section 48(16)] to relieve against time limits can be found in Re Becker Milk Co. Ltd... and Greater Niagara General Hospital... The reason for the delay, while it is one factor to be considered, is not dispositive. The nature of the grievance, the length of the delay, whether the union or the grievor is responsible for the delay, and, most importantly, whether the employer will be 15 prejudiced by granting an extension to the time limits are all factors that must be weighed. We comment at this juncture that the length of the delay is a factor to be considered because sound labour relations are promoted by the elements of certainty and finality. Indeed, the parties incorporate the time limits for the filing of grievances into their collective agreement to promote these elements. Finally, an employer can reasonably expect that time limits will be observed and can order its business in the knowledge that grievances will be filed and processed in a timely fashion. It follows, therefore, that whereas equity considerations usually weigh in favor of extending time limits any decision to extend must take into account possible prejudice to the employer. 8. In this case we have a continuing breach that was repeated with the issuance of each pay cheque.... It is acknowledged... that the breach of the collective agreement arose because of the inadvertence of the employer and the subsequent inadvertence of the grievors. The grievors were unaware of their rights. Notwithstanding their inadvertence however, the grievors have a contractual responsibility to apprise themselves of their rights and to make claims under this collective agreement in a timely fashion. The delay in the filing of the grievance in this case extended for some five years; an inordinately long time when measured against the agreed time limits. Given the policy considerations of certainty and finality exceptional circumstances would be required to cause us to exercise our discretion to relieve against time limits this long expired. Indeed, we are not aware of any arbitrator relieving against time limits this long expired. 9. This is not to say that some relief is not warranted. These full-time employees worked this whole period of time for considerably less than they were entitled to receive. The employer received what must be termed a $17,000 (approximate) windfall. Even part-time employees on non-rotating shifts received the proper shift premium. In these circumstances the equity considerations weigh strongly in favour of the grievors. The prejudice relied upon by the employer is the prejudice of not having provided for a $17,000 payment in its current budget. We accept that the financial burden of an ongoing liability caused by a union's failure to grieve in a timely fashion is a form of prejudice that must be taken into account. This is especially so when the amount of the liability is substantial. 10. The length of the delay in this case is inordinate and the union has failed to put forward a reason for the delay that would support a decision to provide full relief against time limits so long expired. However, there are compelling equity considerations that weigh in favour of providing some relief. We refer specifically to the fact that the grievors performed services for the employer for less remuneration than that to which they were entitled and that part-time nurses in the same circumstances received full payment. We have been satisfied that reasonable grounds exist to extend the time limits under the two most recent collective agreements. The effect is to strike a balance between the equity considerations that weigh in favour of the grievors and the labour relations policy considerations and prejudicial impact upon the hospital that weigh in favour of refusing to exercise our discretion. It is to be noted that by restricting the exercise of our discretion to providing relief against the time limits in the two most recent collective agreements we have significantly reduced the prejudicial impact of the ongoing liability against the hospital. 45. Bora Laskin's commentary in Canadian General Electric Co., supra, remains sound: 8 Neither the Agreement under which this gnevance was filed nor the preceding 16 Agreement contains any time limitation for the filing of grievances. Is there, then, any basis on which a grievance can justly be declared "stale" or "out of time," and thus subject to rejection without consideration of its merits? And if there is such a basis of rejection, is this case within its limits? In considering this problem it is safe to start with the proposition abstract though it may be, that a grievance about any alleged violation of a Collective Agreement should be brought within a reasonable time after the alleged violation has occurred. It should make no difference to the application of this proposition that the grievors were unaware that they had a right to complain, unless they were in some way misled by the Company.... 10 ... The efficient and expeditious conduct of labour relations or, what is much the same thing, the proper administration of a Collective Agreement, requires mutual recognition by the parties of the principle of repose as to all claims under the Agreement not asserted within a reasonable time and involving matters which have, to all outward appearances, been satisfactorily settled between the parties. Unless some such policy is admitted, then, having regard to [the] continuing nature of Collective Agreements, there is wide scope for harassing activities by each party with consequent danger of damage to present relations by dragging up ghosts from the past. 46. And see FPC Flexible Packaging Corp., supra, and the cases cited therein. 47. The use of such broad words in Dayco to describe the kind of right that can be enforced following the expiration of a collective agreement inevitably leads to a more careful assessment of the appropriate application of time limits to ensure that important collective bargaining and labour relations considerations continue to be taken into account. It would run counter to the very essence of collective bargaining to create an environment that did not give effect to the adage "labour relations delayed is labour relations denied". That applies equally to employers, unions, and employees. Time limits form part of the negotiated rights and obligations in a collective agreement and exist for a reason. The parties wish to have disputes, at the very least, identified promptly for the reasons expressed in the quotes above. The opening clause of the collective agreement between these parties highlights as a key purpose, to provide "a method for the prompt and equitable adjustment of grievances of employees in the employ of the Hospital, or of disputes between the parties without unnecessary delay or expense" (emphasis added). 48. Unlike the situation in Alexander Marine & General Hospital, I have no evidence to suggest that the individual employees affected were not aware of their right to be paid percentage-in-lieu up to the maximum of 52 weeks. They may have been unaware that they had been paid incorrectly. However, I am satisfied that the employer did not mislead employees. As 17 noted earlier, the chart apparently provided to Ms. Phillips-Scott was, at worst, ambiguous. The other documentary material filed identifies the employer's mistake. The statements noted that the employer had calculated the payment on the basis of only 35 weeks. That fact was not hidden by the employer, had the employee sought to question it. Until Ms. Phillips-Scott, no one did. 49. Fundamentally, and as in Alexander Marine & General Hospital, these claims have merit. The affected employees were entitled to receive the percentage-in-lieu for the full period of their pregnancy and parental leaves to a maximum of 52 weeks. The employer received a windfall as a result of its mistake; a windfall that now exists as a significant potential liability. In Alexander Marine & General Hospital, the majority of the arbitration board took into account the fact that part-time employees had received the shift premium throughout the period; an equity consideration not present here. To the contrary, in this case, it is arguably inequitable to extend the time limits, thereby allowing for remedial relief for some, when those with an earlier, but identical claim, would be shut out. On the evidence, no differing considerations apply as between any of the affected employees. As noted earlier, an employee's claim did not 'continue' following their return from leave and each affected employee was subject to the time limits set out in Article 9.02 of the collective agreement. 50. Unlike Alexander Marine & General Hospital, I also have no evidence that affected employees were unaware of their rights. I am driven to the conclusion that affected employees simply failed to assert those rights in a timely fashion. I am not persuaded that the fact these employees were absent on pregnancy and parental leaves and were, according to the union, focused on those responsibilities, provides an answer to the kind of delay evident here. As noted in paragraph 36 above, while on leave, each employee's claim would be of a continuing nature and, as such, might fall within the time limits and/or be amenable to an extension of the time limits to a reasonable point shortly following that employee's return to work, given the particular language in Article 9.02 of the collective agreement. That already allows a significant period of time during which an employee taking pregnancy and parental leaves had the opportunity to inquire into and/or verify or review her pay. 51. Having regard to all of the above, and where I find the equities for extending the time 18 limits to be less persuasive than those in Alexander Marine & General Hospital, in assessing whether there are reasonable grounds for the extension without significant prejudice to the employer, I am persuaded that it is appropriate to, and, I hereby exercise the discretion to extend the time limits for the filing of this grievance to the effective date of the most recent collective agreement, that is, September 10, 2007. 52. Turning to the question of remedy, the employer has admitted the breach of the collective agreement. Part-time employees were entitled to receive percentage-in-lieu payments for the period of their pregnancy and parental leaves to a maximum of 52 weeks. The employer paid only to a maximum of 35 weeks. Accordingly, and having regard to my finding with respect to the extension of time limits, I hereby order the employer to pay part-time employees who were on pregnancy and parental leaves as of September 10, 2007 the balance of any percentage-in-lieu amount that the employee was entitled to based on the length of that employee's leaves, to a maximum of 52 weeks. 53. This grievance is allowed in part. I will remain seized with respect to any issue arising in respect of the implementation of this award. Dated at Toronto, Ontario this 31 st day of May, 2010. Marilyn A. Nairn, Arbitrator.