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HomeMy WebLinkAbout1996-0908.Pezzutti.97-11-17 Decisioncrown GRIEVANCE SETTLEMENT BOARD DE la DE COMMISSION DES GRIEFS DE : (416) 326- 1388 416 326-1396 GSB # 908/96 OPSEU # 96B887 IN the MATTER OF AN ARBITRATION Under THE CROW EMPLOYEES COLLECTIVE BARGAINING act Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Pezzutti) Grievor and the Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE FOR the UNION FOR TEE EMPLOYER R.J. Roberts Vice-Chair G. Leeb Grievance Officer Ontario Public Service Employees Union E. McKnight Staff Relations Advisor Ministry of Transportation HEARING November 4, 1997 1 AWARD On June 19,1996, the grievor, Ms. Isabel Pezzuti, filed a grievance claiming that she did not receive 16 weeks’ notice of termination of her contract, as required by the Employment Standards Act, because the Employer had included in its calculation of her notice period the five weeks of the OPS strike that ended on March 3 1,1996. It appeared to be common ground that during the period of the strike, no work was available to the grievor. On July 25, 1996, the Grievance Settlement Board issued its award in Re Maxwell and Ministry of Citizenship, culture and Recreation (1996), G.S.B. No. 95 1/96 (Roberts), in which it was held that an employee in similar circumstances to the grievor was entitled to “16 weeks of wages in lieu of notice, including 2% in lieu of benefits.” Id., at 6. On the basis of this award, the union claimed that the grievor was entitled to the same measure of compensation for the five weeks of work in lieu of notice that she missed because of the strike. The employer did not dispute the merits of this claim. Rather, the employer submitted that the claim was barred because of undue delay. Apparently, Ms. Pezzuti’s grievance was not brought to the attention of responsible persons at Management Board Secretariat until a week or so before the hearing. Counsel for the Employer noted that following the strike, the parties had put into place an elaborate procedure to give the employer notice of all of its liabilities. Because I 2 the union had not followed this procedure and come forward with Ms. Pezzuti’s grievance within a short time after the issuance of the Maxwell award, it was submitted, the grievance must be rejected as untimely. In support of this submission, counsel for the employer referred to Re Union Grievance and Management Board Secretariat (1997), G.S.B. No. 70/97 (Fisher). In that case, the learned Vice Chair stated, “Certainty, in labour relations, is a very important virtue, especially when it come to the implementation of a negotiated settlement.” Id., at 4. This meant, counsel for the employer submitted, that there was a point in time by which the employer was entitled to know its total liability. That point had passed before Ms. Pezzuti’s grievance was brought to the attention of Management Board. There may well be cases in which a grievance might be barred by time limits, the equitable doctrine of laches, and the like. Here, however, there would appear to be insufficient evidence to support such a claim. The grievance was filed in a timely manner, on June 19, 1996. According to the submission of counsel for the union, it was given an OPSEU file number, signifying that it went through an expedited grievance process negotiated between Management Board Secretariat and the union. Information supplied to counsel for the union, I was informed, indicated that shortly after Maxwell issued, the union forwarded the grievor’s name to Management Board as a person who should be paid in accordance with that award. On this record, I cannot conclude that the apparent error that caused the grievance herein 3 to fall by the wayside until now was that of the union and not the employer. As a result, the claim of undue delay that was made by the employer cannot be sustained. The grievor must be paid five (5) weeks of wages in lieu of notice, including 2% in lieu of benefits, in accordance with the Maxwell award. Dated at Toronto, Ontario, this 17th day of November, 1997.