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HomeMy WebLinkAbout2023-01428.Barbosa.24-08-02 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2022-7038; 2023-011428 UNION# 2022-0102-0008; 2023-0102-0026 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Barbosa) Union - and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE Brian McLean Arbitrator FOR THE UNION Sarah Mikhaiel Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Jordanna Lewis Treasury Board Secretariat Labour Practice Group Counsel HEARING June 14, 2024 - 2 - Decision [1] I have two grievances before me. The Employer has raised a preliminary argument that the second grievance should be dismissed for delay or, what it stated in the hearing, a “timeliness motion”. The parties appeared before me on June 14, 2024, to argue the Employer’s motion. This decision determines the motion. [2] The following brief allegations of fact are not disputed for the purposes of the motion. [3] The Grievor, Julie-Anne Barbosa, started working for the Ministry of the Attorney General as a Court Reporter in 2005. On December 4, 2017, she became a Court and Client Representative (CCR) and remains in that position. She was a full-time employee working 36.25 hours per week. [4] In October 2018 the Grievor was in an accident and suffered an injury. From November 9, 2018 she was on sick leave on account of her injury. In October 2020, Ms. Barbosa contacted the Employer to return to work as her health was improving. The workplace parties met and agreed to implement a temporary return to work plan for March 26, 2021 which included, among other things, the following accommodations: - Work from home on a temporary basis - Graduated [increase of] working hours - Reduced work hours - 4 hours per day [5] In April the Grievor sought to have her hours of work increased. On May 7, 2021, the Employer agreed to increase her hours to 4.25 hours per day. On July 29, 2021, following a meeting, the Grievor’s return to work plan was updated again. It included, among others, the following accommodations: - Continue to work from home - Work hours to increase to 4.5 hours per day - 3 - [6] The Grievor was assigned new work which required training. She suffered medical issues while engaged in the training. [7] In August 2021, the Employer updated the Grievor’s return to work plan. The updated plan included the following accommodations: - Continue to work from home - Increase of work hours to 4.75 hours per day, commencing August 16, 2021 - increase to 5 hours per day, commencing August 30, 2021 - increase thereafter by 0.25 hours every 2 weeks [8] In October 2021, the Grievor advised the Employer that on her own initiative she had increased her hours from 5.25 to 5.5 hours per day starting on or about October 12, 2021. Nevertheless, the Employer continued to have concerns about the Grievor’s ability to do the work from a health perspective. The Employer advised the Grievor that her hours of work would not be increased until the Grievor provided further medical information in support of continued increases. Around this time the Grievor received a letter closing out her LTIP claim. [9] On December 13, 2021, the Employer advised the Grievor that it would put together a package of documents to provide to her doctor so that the Grievor could obtain further medicals. It advised the Grievor, “we will continue your reduced hours for now until we have a better understanding of your situation from your healthcare providers.” [10] Nevertheless, the Grievor wanted to work more hours and objected to the fact that her hours were being held at 5.5 hours per day. In early February 2022 the Employer sought to have the Grievor attend an Independent Medical Examination. The Grievor had concerns with the Employer’s process to date and - 4 - resisted the IME. As a result, the IME was delayed. In addition, the Grievor expressed concerns that she was not receiving sick credits as she worked. [11] In April 2022, the Grievor contacted the Union for assistance in communicating the Employer regarding their denial in increasing her work hours. On April 28, 2022, Michael Kirlew, OPSEU/SEFPO Staff representative, requested a meeting with the Employer, and with Ms. Barbosa and her support team in attendance, to address her accommodation issues, including the Employer’s denial to increase her work hours, and to clarify why she couldn’t access sick credits during her reduced hours. Ms. Barbosa proposed a date for the meeting. [12] The Employer replied that the proposed date was not feasible with her schedule. It clarified that when the meeting took place, Ms. Barbosa was permitted only one support person present at the meeting who would have a non-participating role. She continued to clarify the purpose of the meeting, which would be to answer questions about the IME and to provide clarification regarding the calculation of STSP credits (sometimes referred to as sick credits in this award). She requested that all the stakeholders provide alternate availability dates. [13] In early May, 2022 Mr. Kirlew phoned the Grievor and told her that he realized the reason she couldn’t access sick credits was that she wasn’t working 7.25 hours a day. On the same day, he contacted Ms. Bates and said there was no longer a need to discuss STSP credit calculation in a meeting. [14] On May 13, 2022, Mr. Tim Lochhead, a close friend of the Grievor, replied to Ms. Bates’ email to say that he understood the purpose of a meeting was broader than the Employer answering questions about the request for the IME or to discuss STSP credits, but that the Grievor and he understood the purpose of the meeting was to discuss: - Why the Employer stopped Ms. Barbosa’s hours at 5.5 hours per day - Why the Employer stopped communicating with Ms. Barbosa’s primary medical provider, her occupational therapist, Ms. Gough - 5 - - The Employer’s expectation of Ms. Barbosa’s work performance during her graduated return within her limitations and restrictions [15] Among other issues, he emphasized that Ms. Barbosa’s return to work plan should have continued as agreed with increased work hours. He also expressed concerns with the delay in requesting an IME, while Ms. Barbosa’s hours were stopped, causing her financial loss. [16] On May 16, 2022, Ms. Bates replied to Mr. Lochhead’s email and reiterated that the purpose of the meeting would be only to discuss IME questions, and STSP credit calculation. She also advised that accommodation alternatives would be discussed once the Grievor completed the IME On May 27, 2022. The Grievor advised the Employer that she did not have questions about the IME or STSP credit calculations. [17] On June 6, 2022, the Grievor filed the first of the two grievances that are before me, alleging the Employer violated the collective agreement, specifically, but not limited to Article 2 and Article 3 (discrimination), including allegations of a violation of the Ontario Human Rights Code and the Return-to-Work Policy. For the next several months the parties engaged in periodic discussions about the Grievor’s situation. [18] On February 13, 2023, the Grievor completed the IME. On March 13, 2023, the Union provided particulars for the first grievance. On March 15, 2023, the first day of hearing in this matter took place. There were settlement discussions, but no resolution was reached. [19] On June 5, 2023, the Grievor filed a grievance (the “second grievance”) against the Employer which alleged: I …grieve that the Employer has violated my rights under the collective agreement by deny (sic) sick, leave with pay namely the denial of sick leave credits specifically, but not limited to Articles #2, #3, #44.1, 44.2, - 6 - 44.12 and #71 including rights under the Ontario Human Rights Code, The Return to Work policy and any other article, policy, Act, Code, or legislation that may apply. [20] The parties appeared before me on June 14, 2024, at which time the Employer made this motion. It argues that the second grievance should have been filed when the Grievor became aware or ought to have been aware of the circumstances of the grievance, those circumstances being when the Employer failed to provide her sick leave credits. It argues that was in or about March 2021 when the Grievor returned to work at reduced hours. Shortly after that she would or should have been aware that she was not accumulating sick credits. Even if that is not accepted, according to the Employer, she would have been aware by October 21, 2021, at the latest, that she was not accumulating sick credits because she had been told by the Employer, at that time, that her hours of work would not be increased and, therefore, as a result, she would not be accumulating sick credits. There was reasonably significant discussion about the issue in the Spring of 2022 where ultimately the Union advised the Grievor that she was not entitled to sick credits because she was not working full time hours. The second grievance was not filed until June 5, 2023. [21] The Employer notes that ignorance is not an excuse for the Grievor; she is presumed to know the collective agreement and how it applies. She must have known, by a review of her paystubs, that she was not accumulating sick credits from her return to work in 2021. In any event, she continued to raise the issue through at least 2022, well before the date she filed her second grievance. [22] The Employer relies on Articles 22.1 and 22.2 of the collective agreement. Those Articles read: 22.1 It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable. … - 7 - 22.2 If the complaint or difference is not resolved at the local level an employee may file a grievance, in writing, through the Union, with their manager within thirty (30) 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, who will in turn forward the grievance to the designated management representative. (emphasis added) [23] The Employer points out that the last allegation set out in the Union’s particulars (set out above) is February 13, 2023, and the grievance was only filed on June 5, 2023, well after the 30 day period provided for in Article 22.2 had passed. [24] The Employer relies on OPSEU (Finn) v Ministry of Agriculture, Food and Rural Affairs 2019 CanLII 35308 (Dissanayake). In Finn, the grievor was off work sick and then was fit to return to work with accommodation. The grievor was not immediately returned to work by the employer and it was alleged that the grievor was forced to use sick credits before the employer was able to accommodate the workplace to meet the grievor’s restrictions. The union grieved, among other things, that the grievor was not sick while the employer arranged for the return to work and therefore requiring the use of sick credits was inappropriate. [25] The employer in that case brought a motion that the grievance was filed beyond the time limits set out in the collective agreement. It argued that the union was required to grieve within 30 days of the date the employer first decided to put the grievor on sick days. The union, like the Union before me, argued that the employer was in continuous violation of the collective agreement each day it required the grievor to use sick days while he awaited accommodation. [26] The arbitrator allowed the motion, finding that the grievance was grieving the initial decision made by the employer and not the ongoing requirement to use his sick days. The arbitrator held: However, that is not what the union has done. It has grieved the employer decisions themselves. The decision … that a specific period of absence will - 8 - not be treated as a period of leave with pay and must be treated as sick leave. It may be that the two grievances raise some factual assertions relevant to the larger issue, which the employer agrees is properly before the Board. If so, the union may rely on those facts in support of that larger issue. What it is not entitled to do is to file grievances outside the time limits grieving employer conduct as discreet violations and seeking remedies with respect to those alleged violations. … In the sick leave grievance he seeks an order that “I be put on paid leave for this period”. Thus discreet allegations are made and most importantly, redress is sought with respect to those allegations. These aspects of the grievances are not insulated from the timeliness requirements in the collective agreement, simply because the larger issue is also referred to in these grievances. [27] The Employer also relies on OPSEU (Bremner) v Ministry of the Attorney General 2020 CanLII 14807 (Misra). In Bremner there were three grievances before the Board. One alleged: that the Employer violated Article 44 of the collective agreement as the grievor alleges that she had worked for the requisite 20 days to qualify for access to the Short-Term Sickness Plan (“STSP”) and other entitlements in February and March 2014, but that she had not been given access to the STSP and other entitlements since 2014. [28] Arbitrator Misra allowed the employer’s motion because the grievance was filed three years late. She stated in part: [34] I also cannot accept as a reasonable excuse for the delay that the grievor commenced an approved medical leave in or around 2014. Based on the facts before me, the grievor believed she had qualified for STSP and other credits as of March 2014. She was on and off work throughout the rest of that year until sometime in November 2014 when she finally went off on a medical leave for an extended period of time. As such, the grievor was in a position to file a grievance any time in early 2014 after she purportedly qualified for sick leave benefits, but was not receiving them. - 9 - [35] In the alternative, assuming without finding that the grievor did not know she had been disentitled to sick leave benefits in 2014, she certainly knew by January 2015, when she sent the employer an email so stating, and essentially outlining the same issue that she finally raised in the June 26, 2017 grievance. Clearly the grievor was capable of, and did, communicate with her employer while off on an approved medical leave, so I cannot find that she was incapable of filing a grievance, especially by January 2015. Finally, on this point, I note that there is no medical evidence before me to suggest that the grievor’s medical condition at the time impacted her ability to file a grievance. [29] The Employer also relies on OPSEU (Poblete) v Ministry of Government and Consumer Services 2019 CanLII 21745 (Herlich). The grievor grieved job competitions that occurred several years prior. The employer brought a motion alleging on a few grounds that the grievances should be dismissed, including that they were untimely. Arbitrator Herlich stated: [34] In this regard, I am in agreement with the employer, even assuming that the collective agreement does not provide an exclusively objective approach to the timeliness of filing a grievance. The collective agreement ties the timeliness of a grievance to the “circumstances giving rise to the complaint” not to a grievor’s knowledge about labour relations in general, the existence of a trade union and its function or, more importantly, the specific provisions of and rights under the collective agreement. Any such lack of knowledge cannot be visited upon the employer by requiring the processing of grievances to arbitration years beyond the circumstances which gave rise to them. Union Argument [30] The Union’s argument is that the violation of the collective agreement was continuous. A violation occurred every period that the Grievor worked 20 days and was not credited with a sick credit. Given that the Grievor has not been given sick credits since her return to work in 2021 and that she has worked essentially continuously from that date until she filed the second grievance, the - 10 - grievance is timely. It was filed within 30 days of the most recent period where a sick credit was not provided. [31] The Union argues that the Employer was obligated to provide sick credits when the Grievor performed work. The Union relies on Article 44.2 of the collective agreement which provides: 44.1 An employee who is unable to attend to their duties due to sickness or injury is entitled to leave of absence with pay as follows: (a) with regular salary for the first six (6) working days of absence, (b) with seventy-five percent (75%) of regular salary for an additional one hundred and twenty-four (124) working days of absence, in each calendar year. 44.2 An employee is not entitled to leave of absence with pay under Article 44.1 until the employee has completed twenty (20) consecutive working days of employment. 44.3 Where an employee is on a sick leave of absence which commences in one (1) calendar year and continues into the following calendar year, the employee is not entitled to leave of absence with pay under Article 44.1 for more than one hundred and thirty (130) working days in the two (2) years until the employee has returned to work for twenty (20) consecutive working days. 44.4 An employee who has used leave of absence with pay for one hundred and thirty (130) working days in a calendar year under Article 44.1 must complete twenty (20) consecutive working days before the employee is entitled to further leave under Article 44.1 in the next calendar year. [32] The Union’s position is that under Article 44.2 the Grievor is entitled to a leave of absence with pay after working 20 consecutive days. Accordingly, every 20 working days the Grievor earns a sick credit. Since no sick credits were paid, the violation is ongoing. [33] The Union relies on Ontario Public Service Employees Union (Belgrave) v The Crown in Right of Ontario (Ministry of the Attorney General, 2023 CanLII 61427 - 11 - (ON GSB)) (Waddingham). Belgrave involved facts very similar to those before me. In that case Arbitrator Waddingham first distinguished Bremner (which was also relied on by the Employer in this case) and then held: [34] In OPSEU (Hunt et al.), supra, Arbitrator Abramsky considered the employer’s preliminary objection to the arbitrability of the grievance on grounds of timeliness. The grievance was filed following a change in the employer’s practice several years earlier impacting the payment of an overtime premium. Arbitrator Abramsky undertook a thorough review of the arbitral jurisprudence, and considered a definition of a “continuing grievance” drawn from the 1981 edition of Evidence and Procedure in Canadian Labour Arbitration (p. 35), as set out in Re British Columbia and B.C.N.U., 1982 CanLII 5128 (BC LA), 5 L.A.C. (3d) 404 (Getz), at page 415: “The appropriate rule for deciding the isolated or continuing nature of the grievance is the rule developed in contract law. The recurrence of damage will not make a grievance a continuing grievance. It is necessary that the part in breach violate a recurring duty. When a duty arises at intervals, and is breached each time, a “continuing” violation occurs, and the agreement’s limitation period does not run until the final breach. When no regular duty exists and the harm merely continues or increases, without any further breach, the grievance is isolated, and the period runs from the breach, irrespective of damage.” [35] Among the cases reviewed by Arbitrator Abramsky is Re Port Colborne General Hospital and O.N.A., in which Arbitrator Burkett defines a continuing grievance as follows: It is clear from a reading of the cases that the question that must be asked is whether or not the conduct that is complained of gives rise to a series of separately identifiable breaches, each one capable of supporting its own cause of action. Allegations concerning the unjust imposition of discipline, the improper awarding of a promotion or the failure to provide any premium or payment required under the collective agreement on a - 12 - single occasion, while they may have ongoing consequences, constitute allegations of discrete non-continuing violations of the collective agreement. In contrast, an allegation of an ongoing failure to pay the wage rate or any benefit under the collective agreement or an ongoing concerted work stoppage constitute allegations of continuing breaches of the collective agreement. In these cases the party against whom the grievance is filed takes a series of fresh steps each one giving rise to a separate breach. In this latter type of case the time-limits for the filing of a grievance, apart altogether from any question as to when damages commence to run, must be found to be triggered by the breach closest in time to the filing of the grievance. (Emphasis added.) [36] Vice Chair Abramsky found that the alleged ongoing failure to comply with the overtime requirements set out in the collective agreement constituted a continuing grievance. Arbitrator Abramsky concluded, at page 27: …that the grievance involves an alleged ongoing failure to comply with the overtime requirements set forth in the collective agreement. The grievance alleges that by changing the practice, ‘we have been forced to perform authorized duties on overtime hours without overtime pay, contrary to…the collective agreement.’ It is not the change in practice, per se, that is being grieved. It is the alleged consequence of that change in practice – the alleged breach of the overtime provisions – and that alleged breach is ongoing. [37] I concur with the reasoning of Arbitrators Burkett and Abramsky. The Employer argues that its determination that the Grievor did not qualify for STSP benefits was made on October 4, 2021 and communicated to the Grievor. However, in determining whether a grievance is a “continuing” one, the focus is not on the nature of the employer’s decision (that is, whether the decision is recurring) or on when the Grievor first became aware of the employer’s decision. Rather, the focus is on whether or not the employer has an ongoing obligation under the Collective Agreement (that it is allegedly in breach of). - 13 - [38] The provision of STSP inter alia sick days is an ongoing and specified benefit under the Collective Agreement. The Employer has a recurring duty under the Collective Agreement to provide STSP benefits in accordance with Article 44. The Grievor, when she was on an accommodated work plan attempted to access her STSP benefits. The Employer responded with a denial of STSP benefits, claiming she was ineligible to receive them. The Grievor’s STSP benefits were not restored until after she returned to her regular work schedule in October 2022. This denial amounts to an alleged violation of Article 44 of the Collective Agreement and the Employer’s ongoing obligation under the Collective Agreement. The Employer’s denial of STSP benefits to the Grievor in October 2021 and again on May 30, 2022 can be assessed on its own for compliance with the Collective Agreement on this basis. [39] When as here, the duty is ongoing but arises at intervals, and it is allegedly breached each time, a “continuing violation” occurs and the Collective Agreement’s limitation period for filing a grievance does not run until the final breach occurs. At the time the grievance was filed on July 15, 2022, the Grievor continued to be denied STSP credits. The Grievor’s STSP credits were not restored until sometime after October 2022, when she returned to regularly scheduled hours. I find this to be a continuing grievance to be determined on its merits. The issue of remedy is separate from the timeliness issue and may be dealt with at a later date. [34] The Union argues that the same reasoning should apply to the case before me. It also notes that the issue of remedy (and whether that may be limited by the date the Grievor filed her grievance) is a separate issue and need not be decided at this point. [35] The Employer replies that the second grievance only deals with the Employer’s failure to provide STSP credits. It is a stand-alone complaint. The “decision” or failure to deny sick credits was made in 2021 and that decision was not challenged until 2023. - 14 - DECISION [36] The starting point of my decision is Article 22.2 of the collective agreement which provides: 22.2 If the complaint or difference is not resolved at the local level an employee may file a grievance, in writing, through the Union, with their manager within thirty (30) 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, who will in turn forward the grievance to the designated management representative. [37] The essence of the Employer’s argument is that the Grievor became aware (or ought reasonably to have been aware) of the circumstances giving rise to her complaint many months prior to filing her grievance in that she was aware (or ought reasonably to have been aware) that she was not accumulating sick benefits after her return to work in 2021. [38] The Union does not dispute that assertion. However, its position is that the breach of the collective agreement is a continuing one: a new breach occurs each time the grievor worked 20 days without being credited with a sick credit. Therefore, the grievance is timely, and the timeliness issue raised by the Employer is only relevant for determining what damages might be owing to the Grievor. [39] In Re Port Colboume General Hospital and O.N.A., supra, at pp. 327-28, Arbitrator Burkett discussed what makes a "continuing" grievance: It is clear from a reading of the cases that the question that must be asked is whether or not the conduct that is complained of gives rise to a series of separately identifiable breaches, each one capable of supporting its own cause of action. Allegations concerning the unjust imposition of discipline, the improper awarding of a promotion or the failure to provide any premium - 15 - or payment required under the collective agreement on a single occasion, while they may have ongoing consequences, constitute allegations of discrete non-continuing violations of the collective agreement. In contrast, an allegation of an ongoing failure to pay the wage rate or any benefit under the collective agreement or an ongoing concerted work stoppage constitute allegations of continuing breaches of the collective agreement. In these cases the party against whom the grievance is filed takes a series of fresh steps each one giving rise to a separate breach. In this latter type of case the time-limits for the filing of a grievance, apart altogether from any question as to when damages commence to run, must be found to be triggered by the breach closest in time to the filing of the grievance. [40] That reasoning has been applied to cases before the GSB. For example, in Re The Crown in right of Ontario (Ministry of the Attorney General) and Ontario Public Service Employees Union (Hunt et al.) Vice Chair Abramsky found that there were two ways to look at these sorts of cases: There are two ways to view this grievance. First, it can be viewed as a challenge to the revision of a practice that, on the Union's evidence, took place in 1991, and on the Employer's evidence, took place in either 1998 or 1999. Under this view, the grievance would clearly be untimely. It would be either ten years or two to three years too late. The second way to view the grievance is as a challenge to the ongoing impact of the change in practice in relation to the overtime provisions in the collective agreement. Under this view, the grievance would be a "continuing grievance" and the time for filing it would run from the latest breach. [41] Applying that sort of analysis here, one way to look at facts before me is that this grievance is about the Employer’s decision to not provide sick credits to an employee accommodated by not being required to work full time hours. Here, that decision was made, at the latest, sometime in the last quarter of 2021. The other way to look at the grievance is that it is a challenge to the ongoing refusal to provide a sick credit to the Grievor each time she works twenty days. As in - 16 - Hunt, under this view, the grievance would be a "continuing grievance" and the deadline for filing it would run from the latest breach. [42] Upon careful consideration, I conclude that the grievance involves an alleged ongoing failure to comply with the requirements in the collective agreement. The grievance alleges that “the Employer has violated my rights under the collective agreement by deny (sic) sick, leave with pay namely the denial of sick leave credits…”. It is not the Employer’s decision that is being grieved. It is the alleged consequence of that change in practice — the alleged breach of the sick leave provisions — and that alleged breach is ongoing. [43] I acknowledge that the allegations of fact before me have elements of each of the categories of cases that the parties rely on in support of their respective positions and arguments. There is little doubt that the Employer made a decision that the collective agreement did not require it to provide sick benefit credits to the Grievor and communicated that decision to her. The Grievor did not grieve that decision within 20 working days of receiving this information from the Employer. That is the kind of situation where employees are generally precluded from filing a grievance more than thirty days after the Employer’s decision. On the other hand, the benefit claimed by the Grievor is the type of benefit, similar to wages, that she arguably earns periodically as she works. The failure to pay that benefit is, assuming the Grievor’s entitlement, a recurring breach of the collective agreement which can be grieved each time it occurs. [44] The difficulty with a finding that the grievance is untimely is that it could mean that the Grievor is essentially disentitled to a benefit (again, assuming, without finding that she is so entitled) until she returns to work on a full-time basis. This is surely part of the reason for the continuing grievance caselaw. It is not fair, for example, that an employee permanently receive a lower wage than they are entitled to because they did not grieve the Employer’s decision at first instance. - 17 - [45] The facts of this case are essentially on all fours with Belgrave. In that case the grievor asked the employer why she was not in receipt of STSP credits. The employer responded that she had not worked 20 consecutive days which was a requirement for the entitlement to STSP under the collective agreement. The grievor continued to ask questions on and off until in May 2022 the grievor raised the issue again and the employer again denied her request. The grievor filed a grievance in July 2022 and it was found to be timely since it was filed within thirty days of the most recent failure to provide the benefit. The delay did not matter because each of the employer denials constituted a fresh breach which could be grieved. [46] These are different circumstances than the cases relied on by the Employer. In Finn, Arbitrator Dissanayake found that the union “grieved the employer decisions themselves” including that a “specific period of absence will not be treated as a period of leave with pay and must be treated as sick leave”. Here, the Grievor did not grieve any specific employer decision. She grieved the fact that she was not receiving credits in the normal course. [47] In Bremner v Ministry of the Attorney General 2020 CanLII 14807 (Misra) there were three grievances before the Board. One alleged: that the Employer violated Article 44 of the collective agreement as the grievor alleges that she had worked for the requisite 20 days to qualify for access to the Short-Term Sickness Plan (“STSP”) and other entitlements in February and March 2014, but that she had not been given access to the STSP and other entitlements since 2014. [48] Arbitrator Misra found in favour of the employer that the grievance was untimely. However, in that case the Union did not argue that there was a continuing breach of the collective agreement in the Employer’s failure to provide the grievor STSP benefits. It is therefore distinguishable. [49] In OPSEU (Poblete) v Ministry of Government and Consumer Services, supra, the Union grieved job competition decisions that occurred years previously. The - 18 - grievance was dismissed as untimely. However, in that case there was no ongoing breach of the collective agreement alleged. What was being grieved was the employer’s decision in the job competitions; it was not a continuing breach of the collective agreement. [50] For these reasons, in my view, this is a continuing grievance and ought not to be dismissed for delay. Instead, any concerns with respect to delay can be addressed in the damages phase of this case, if there is one. The Grievance is not about an Employer decision. Instead, the Employer applied its usual policy in these circumstances and did not permit the Grievor to earn and accumulate sick credits. [51] Finally, in my view there is no basis, at this point, for a finding that the Union has improperly expanded the grievance. If appropriate, that issue can be re-raised during the evidence phase of the hearing or during opening statements if the Employer believes that there is an improper expansion. [52] For all the foregoing reasons the Employer’s preliminary motion is dismissed. I remain seized. Dated at Toronto, Ontario this 2nd day of August 2024. “Brian McLean” Brian McLean, Arbitrator