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HomeMy WebLinkAbout2000-0868.Fudge.00-12-22 Decision ONTARIO EMPLOYÉS DE LA COURONNE CROWN EMPLOYEES DE L’ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT RÈGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TÉLEPHONE, (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G IZ8 FACSIMILE/TELECOPIE: (416) 326-1396 GSB #0868/00 OLBEU #466/99 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Liquor Boards Employees’ Union (Fudge) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Nimal V. Dissanayake Vice Chair FOR THE Ursula Boylan, Counsel GRIEVOR Koskie Minsky Barristers & Solicitors FOR THE Stephanie Parkin, Counsel EMPLOYER Legal Services Branch Liquor Control Board of Ontario HEARING December 11, 2000. 2 PRELIMINARY AWARD The grievor, Ms. Deborah Fudge is employed as a manager at LCBO Store #111 in Westport, Ontario. She had been employed with the LCBO since October 1980. In a grievance dated December 15, 1999, Ms. Fudge has grieved that she had not been allowed to buy back her pension contributions for two periods of absence she had. The first period was a leave of absence without pay from November 7, 1985 to January 6, 1986. The second was an absence between August 23, 1991 to June 6, 1992, when she was off on WCB benefits due to a work related injury. It is common ground that Ms. Fudge was in fact permitted to buy back pension contributions with regard to her first period of absence. That period therefore is no longer being grieved. The grievance now concerns the grievor=s entitlement to buy back pension contributions with respect to her second period of absence from August 23, 1991 to June 6, 1992. The Board was advised that the employer had a number of objections to the arbitrability of this grievance. The parties agreed to argue one of those objections initially and obtain a ruling. That objection is on the basis that the grievance is untimely under the mandatory time limits set out in the 3 collective agreement, and therefore inarbitrable. This preliminary decision deals solely with the timeliness issue. The Board received viva voce and documentary evidence on the timeliness issue. Based on the evidence the Board must first decide whether the grievance dated December 15, 1999 was untimely in the first place. If it is found to be untimely, and only then, the Board must go on to consider whether in all of the circumstances it ought to exercise its discretion under S. 48(16) of the Labour Relations Act to extend time limits. There is no doubt that the grievor did take a leave of absence during the period in question during which she received WCB benefits topped off with sick pay. The grievor testified that the first indication of Aa problem@ was upon receipt in November 1997 of a notice from the OPSEU Pension Trust (which administered her pension plan) showing a changed retirement eligibility date for her. She was concerned why the date had changed. She contacted her District Manager Mr. Ron Flett and Mr. Mike Callaghan, her Human Resources Advisor, and made inquires. She was advised to contact Ms. Shelly Clayton of the Benefits Dept. at the LCBO head office in Toronto,. Through her inquiries Ms. Fudge found out that the OPSEU Trust Fund was 4 taking the position that she had missed the 24 month time limit for buying back pension contributions for the period of absence, and that it was this period of absence for which no contributions were made that caused the change in her retirement eligibility date. Ms. Fudge=s testimony, as well as the documentary evidence filed, establishes that there followed a period where the grievor, with assistance and encouragement from the employer, made repeated appeals to the OPSEU Pension Trust that she be allowed to buy back her pension contributions for the period in question despite her failure to act within the 24 month period. However, her efforts failed. She received a letter dated November 17, 1999 wherein the Pension Trust affirmed its position, inter alia, that Athe second leave of absence from August 23, 1991 to June 6, 1992 is no longer eligible to be repurchased@ since the 24 month period allowed by the provisions of the OPSEU Pension Plan had expired. Ms. Fudge testified that upon receipt of this letter she concluded that she had exhausted all possible avenues of appeal in her quest to buy back the pension contributions for the period in question. She felt that she had reached the Aend of the road@, and she gave up hopes. 5 However, Ms. Fudge testified that early in December 1999 she attended a training session held in Ottawa for LCBO District Trainers. While talking with another District Trainer from Ottawa, Mr. Ron Burnett, Ms Fudge mentioned to him that she had been denied the opportunity to buy back her pension contributions for the period of leave. Mr. Burnett happened to be a union steward and had experience in dealing with benefits issues. He suggested to Ms. Fudge that she should file a grievance under the collective agreement claiming a right to buy back her pension contributions. Ms. Fudge testified that that was the very first time that she ever turned her mind to the possibility of grieving under the collective agreement to resolve her problem. Until Mr. Burnett suggested the filing of a grievance, it had never occurred to her that she may have any recourse under the collective agreement. She had always thought that she had to deal with the Abenefits office@ to seek remedy, because in her mind it was a benefits issue. Once Mr. Burnett brought to her attention the possibility of grieving under the collective agreement, she acted promptly since she was aware that there was a 10 day time limit for filing grievances under the collective 6 agreement. As soon as she returned to work, she spoke to her union steward, and on December 15, 1999 filed the grievance. The collective agreement in article 27.3(a)(i) provides: An employee who has a complaint or a difference shall discuss the complaint or difference with his/her supervisor, as designated by the employer, within ten (10) days of the employee first becoming aware of the circumstances giving rise to the complaint or difference (Emphasis added) At the hearing the Board heard much discussion about whether or not the grievor knew or ought to have known that the Pension Plan rules required that she act within 24 months to buy back her pension contributions. However, in this particular phase of the hearing, where the issue is the timeliness of the grievance under article 27.3(a)(i), that issue has no bearing or relevance. The Board must initially decide on the basis of the evidence and the law, whether or not Ms. Fudge=s grievance dated December 15, 1999 was timely under that provision. Employer counsel pointed out that the 10 days under article 27 begins to run from the time the employee first becomes aware of Athe circumstances giving rise to the complaint or 7 difference@. In her view, in this case the 10 days under this provision began to run as soon as Ms. Fudge=s ability to buy back expired on June 6, 1994 in accordance with the Pension Plan rules, with the passage of 24 months from the date of her return to work from her leave of absence. In the alternative, she submits that the time began to run at least from the date she received the notice in November 1997 from the pension Trust indicating that her retirement date had been changed. In Re Veronica Pierre, 492/86 (Verity) the Board was called upon to interpret somewhat different language in the OPSEU collective agreement, article 27.2.1 of which read: 27.2.1 An employee who believes he has a complaint or a difference shall first discuss the complaint or difference with his supervisor within twenty (20) days of first becoming aware of the complaint or difference. (Emphasis added) The Board at pp. 13-15 wrote: The parties differ on the precise time the 20 days period begins and the clock starts to run. The Employer maintains that the grievor ought to have been aware of her 8 right to file a grievance following the testing in February or the events in November, 1985. Mr. Benedict argues that ignorance of the right of file a grievance is no excuse and that the individual grievance filed in March of 1986 was well beyond the mandatory time limits. The Union alleges that the grievor was unaware that the events surrounding her concerns could be the subject matter of a grievance until she spoke with Union Representative Brian McMullan in late February, 1986. Mr. Stoykewych contends that the grievor properly filed the grievance within the 20 day period. The language of the Collective Agreement appears to provide two quite separate and distinct procedures for the filing of individual grievances on the one hand, and the filing of union grievances on the other. In individual grievances, Article 27.2.1. states that the employee Awho believes he has a complaint or a difference@ shall raise it with his supervisor Awithin 20 days of first becoming aware of the complaint of difference. (Emphasis added) 9 What is required on the part of the employee to comply with the mandatory 20 day time limit, is knowledge or awareness that there has been a violation or a possible violation of the provisions of the Collective Agreement. Article 27.2.1 contemplates the knowledge on the part of the employee - a subjective concept. Vice- Chairman Samuels makes that point in OPSEU (P. Mitchell and Union Grievance) and Ministry of Government Services, 1614/85 and 1615/85 at p. 6: AArticle 27.2.1. establishes a time limit which does not begin to run until the employee first becomes aware of the complaint or difference. And the words >complaint or difference= refer to >complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this agreement=. (Article 27.1). In other words, the time does not begin to run until the employee is aware that there is a complaint or difference under the collective agreement. Her complaint or difference in this sense is not being declared surplus, or being laid off, but her feeling that she has 10 not been treated according to the collective agreement.@ The Divisional Court=s endorsement dated July 11, 1990 upholding the Board=s decision in Re Pierre upon judicial review of the Board=s decision is contained in its judgement reported at (1990) 74 O.R. (2d) 700 at pp. 704-705 and reads: We are all of the view that the Board was correct in its conclusion that the 20-day time period within which the grievor had to bring her grievance, began to run only when she became aware that she had a complaint that was based on a violation or possible violation of the collective agreement. In our view, the >complaint or difference= referred to in Article 27.2.1 of the collective agreement is the same kind of complaint(s) or difference(s) mentioned in Article 27.1, that is to say a complaint or difference 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=. The grievor knew at least by November, 1985 that she was unhappy about a possible exposure to T.B., but she was not aware until late February, 1986 that such exposure 11 might constitute a complaint or difference with her employer arising out of a contravention by it of the collective agreement. Until she became so aware she could not have believed she had such a complaint. It is implicit in the reasons of the Board that the grievor first became aware that she had a complaint based on a violation or possible violation of the collective agreement on February 25, 1986 when her Union representative told her she could file a grievance. The grievor filed her complaint on March 4, 1986 well within the 20-day time limit for doing so. The words >believes= and >becoming aware= found in Article 27.2.1. clearly establish that it is only the subjective awareness of the employee that she has a complaint arising out of a possible violation of the agreement that sets the 20-day time limit running. Having found the Board was correct in its interpretation of the collective agreement, it is not necessary for us to decide whether this application would also have failed if it could be said that the interpretation 12 placed on the agreement by the Board was no patently unreasonable. The application is dismissed with costs to the union. In Re Gordon, 48/49 (Dissanayake), the Board interpreted the language in article 27.3(a)(i) of the OLBEU collective agreement in light of the Court=s decision in Re Veronica Pierre. Following a review of the language in the OPSEU and OLBEU agreements, the Board wrote at pp. 14-15: A comparison of article 27.2(a)(1) of the LCBO agreement with article 27.2.1 of the OPSEU agreement discloses that the two provisions are very similar, although not identical. In our view, unless the differences in wording are such as to make the interpretation placed on article 27.2.1 of the OPSEU agreement by the Board, and approved by the Court, inapplicable, the Board must follow that interpretation in regard to article 27.3(a)(1) of the LCBO agreement also. The critical words which were interpreted by the Board in Pierre are Awithin twenty (20) days of first becoming aware of the complaint or difference@. The Board held 13 that the required awareness included the knowledge or belief that Aher concerns were amenable to resolution under the collective agreement.@ Accordingly it was held that the time limit did not begin to run against the grievor until she was advised by her chief steward that she had a right to file a grievance. The Court, found that the Board was correct in its interpretation. In the LCBO agreement the critical language is Awithin ten (10) days of the employee first becoming aware of the circumstances giving rise to the complaint of difference.@ The issue then is the significance, if any, of the addition of the words Athe circumstances giving rise to@in the LCBO agreement. In our opinion those words do not change the meaning of the article. As under the OPSEU agreement, the Acomplaint or difference@ referred to in article 27.3(a)(i) must be a complaint or difference under the collective agreement. In our view, the Acircumstances@ giving rise to such a complaint or difference are two fold. First, there must be a right under the collective agreement. Second, there must be an act or omission by a party to the agreement which the other party feels has abridged or contravened that right. Before 14 an employee can be said to have become aware of Athe circumstances giving rise to the complaint or difference@ under article 27.3(a)(i), he or she must be aware of both the existence of a right and a factual basis which may contravene that right. As under the OPSEU agreement, the parties, by alluding to the employee=s awareness, have intended to introduce a subjective test. The intent is that an employee must act expeditiously once he or she becomes aware that a right under the collective agreement may have been contravened. Applying the test set out by the Divisional Court in Re Pierre and adopted by the Board in Re Gordon to the evidence in this case, one must ask when Ms. Fudge first became aware that she may have a right under the collective agreement to buy back her pension contributions and that any collective agreement right she had in that regard may have been contravened. The answer is not in doubt. The uncontradicted and unchallenged evidence of Ms. Fudge is that until Mr. Burnett suggested to her in early December 1999 that she should file a grievance, it had never occurred to her that she may have a right under the collective agreement to buy back her pension contributions for her period of leave. There is no dispute that she grieved 15 within 10 days of becoming aware that she may have a right to grieve under the collective agreement. Applying the subjective test established in the jurisprudence to the evidence, the Board is led to the conclusion that the 10 day time limit under article 27.3(a)(i) began to run only upon Ms. Fudge becoming aware that a collective agreement right she had may have been contravened. She grieved within 10 days after becoming aware of that. In the circumstances, Ms. Fudge=s grievance filed on December 15, 1999 was timely under article 27.3(a)(i). Given the Board=s finding that the grievance met the time limits in the collective agreement, it is not necessary to deal with the parties= submissions as to whether the Board should extend time limits by exercising its discretion under S. 48(16) of the Labour Relations Act. The Board remains seized to deal with all remaining issues related to the grievance. 16 Dated at Hamilton, this 22nd day of December, 2000. Nimal V. Dissanayake, Vice-Chair.