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HomeMy WebLinkAbout2001-1122.St Jean et al.04-12-31 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2001-1122 UNION# 2001-0411-0022 [01C822] IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (St. Jean et al) Union - and - The Crown In RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE D.J.D LeIghton Vice-Chair FOR THE UNION DavId Wnght Ryder Wnght, Blair & Doyle BarrIsters and SOlICItorS FOR THE EMPLOYER Len HatzIs Counsel Management Board Secretanat HEARING March 9 2004 2 DeCISIon The Issue before me IS whether these gnevances are tImely Four correctIOnal officers allege that they should have been paid travel tIme after the closure ofL'OngInal JaIl The employer takes the posItIOn that the gnevances are not tImely and further that It IS not appropnate to exercIse the dIscretIOn under sectIOn 48(16) of the Ontario Labour Relations Act 1995 to extend the tIme lImIt. The employer also takes the posItIOn that the gnevors' claim for travel tIme IS a contInuIng gnevance that began on July 24 1998 and ended on May 9 2001 and IS thus some three and one-half months late The umon takes the posItIOn that the gnevors' claims anse out of and as a consequence of the board's earlIer decIsIOn InvolvIng the closure ofL'OngInal JaIl, OPSEU (Union Grievance) and the Ministry of the Solicitor General and Correctional Services (2001) 1154/98 ThIS decIsIOn held that correctIOnal officers at L'OngInal were entItled to be offered posItIOns at Ottawa Carleton DetentIOn Centre on the basIs of theIr semonty pursuant to the provIsIOns of AppendIx 13 of the collectIve agreement. The partIes agreed In a memorandum of settlement dated March 13 2001 to a process of IdentIfYIng correctIOnal officers for the mne posItIOns The memorandum of settlement provIded In part 43 Employees who accept a posItIOn In accordance wIth 4 1 or 4.2 above, and who relocate In accordance wIth the relocatIOn polIcy or have prevIOusly relocated, and who commuted to theIr mImstry Job beyond 40kms are entItled to receIve travel expenses In accordance wIth the mImstry polIcy for the penod between the closure of L'OngInal JaIl and theIr acceptance of a posItIOn In accordance wIth #2 above or theIr ongInal relocatIOn date The gnevors were paid mIleage They take the posItIOn that they were also entItled to travel tIme under the settlement. 3 Under the memorandum's process It took untIl May 9 2001 to IdentIfy the gnevors as beIng entItled to posItIOns at OCDC Umon counsel takes the posItIOn that thIS IS when the claim to travel tIme crystallIzed. Without first gettIng a posItIOn at OCDC the gnevors were not entItled to travel expenses Ms Judy Prevett testIfied that In the spnng of2001 she was a member of the Employee TransItIOn Umt. On Apnl 9 2001 there was a meetIng held where all the gnevors were present. The purpose of the meetIng was to dISCUSS the March 13 2001 mInutes of settlement and ItS effect on the L'OngInal CorrectIOnal Officers Ms Prevett testIfied that at that meetIng there was a dIscussIOn regardIng payment for travel tIme and the employer stated that only mIleage would be paid and not travel tIme She testIfied further that It was clear at that meetIng that If the gnevors thought that they were entItled to be paid for theIr travel tIme to OCDC that they should gneve She testIfied that It was clear from the meetIng that the employer had no IntentIOn to pay for travel tIme pursuant to the March 13 2001 settlement. In cross-eXamInatIOn, Ms Prevett acknowledged that the gnevors were concerned that If they accepted thIS settlement they would Waive theIr nghts to claim travel tIme Mr PIerre St. Jean testIfied on behalf of the gnevors that he was one of the correctIOnal officers to be assIgned to OCDC under the March 13 2001 mInutes of settlement. He receIved notIce that he was entItled to the posItIOn on May 9 2001 Mr St. Jean attended the Apnl 9 2001 meetIng. He testIfied that at that meetIng he stated hIS concern, that If he accepted payment for mIleage he would not be entItled to gneve travel tIme On May 16 Mr St. Jean wrote to Mr Michael Cote, Supenntendent of OCDC outlImng both mIleage and travel tIme claims from August 1998 to May 9 2001 As a result of sendIng thIS letter he met wIth Ms Karen Matthews, 4 Human Resources Consultant, on June 4 at OCDC Mr St. Jean testIfied that when he raised the Issue of payment for travel tIme WIth Ms Mathews that she IndIcated he could gneve for travel tIme later but that It was not gOIng to be paid under these mInutes of settlement. Mr St. Jean stated that he filed the gnevance for travel tIme In September after reCeIVIng hIS payment for the mIleage He testIfied that the gnevors thought that, If they gneved the travel tIme before reCeIVIng the mIleage the employer would hold back on that payment. On cross-eXamInatIOn he acknowledged that he had been wIth the mImstry for twenty-two years In 2001 He stated that he understood the collectIve agreement and that he had filed gnevances In the past. DECISION The first Issue that I must address IS whether or not the gnevances before me amount to a contInuIng breach of the collectIve agreement as submItted by the employer Counsel argued that the travel to OCDC began In 1998 and each Instance of dnvIng to OCDC amounted to a sIngle gnevable IncIdent. Thus, gIven the Junsprudence on contInuIng gnevances, a gneVIng party would only be entItled to damages for the breaches that occurred wIthIn the tIme lImIt for filIng the gnevance under the collectIve agreement. And so the remedy here would be lImIted. Although normally a travel tIme gnevance would be consIdered a contInuIng breach of the collectIve agreement, In thIS case I am satIsfied that the umon' s posItIOn IS correct, that the gnevors' claim rests on the mInutes of settlement agreed to by the partIes on March 13 2001 In order to Implement the board's decIsIOn In OPSEU (Union Grievance) and the MinistlY of the Solicitor General and Correctional Services (2000) G S.B 1154/98 As umon counsel noted, there IS no oblIgatIOn on the employer to pay for travel tIme between work and a person's headquarters As a general rule, ArtIcle 14 would not apply The gnevors' claims can only anse after the decIsIOn that theIr headquarters In effect had been moved from L'OngInal to OCDC and 5 they were entItled to posItIOns at OCDC whIch they were not gIven under AppendIx 13 before the decIsIOn. Thus whIle normally such a gnevance would be a contInuIng gnevance, It IS not In the specIal cIrcumstances of thIS case SInce I have found that any entItlement or nghts flow from the settlement dated March 13 2001 I am satIsfied that the earlIest date that the gnevors could have filed theIr gnevance was on May 9 when they receIved confirmatIOn of theIr posItIOns at OCDC I am not persuaded that the tIme should run from Apnl 9 2001 the date of the InformatIOn meetIng that explaIned the gnevors nghts under the mInutes of settlement. However thIS date IS Important because I accept the eVIdence of the employer that the gnevors were told on Apnl 9 that mIleage would be paid to them If they took a posItIOn, but not travel tIme Mr St. Jean's eVIdence on thIS was that he could not remember clearly what had been said. However Ms Prevett, testIfYIng for the employer was clear In her memory that the gnevors were told travel tIme would not be compensated thIS IS also reflected clearly In her notes Thus the eVIdence establIshes that the gnevors were told on Apnl 9 that under thIS partIcular settlement they would not receIve compensatIOn for travel tIme Even though they were thus Informed, I am of the VIew that they could not have filed a gnevance untIl May 9 when they receIved theIr posItIOns Thus the clock began to run on May 9 2001 The collectIve agreement provIdes that employees must file a gnevance wIthIn thIrty (30) days of the CIrcumstances gIVIng nse to the complaInt. SInce the gnevances were not filed untIl September 18 2001 the gnevances were Just over three (3) months late Counsel for the employer urged me not to exerCIse the dIscretIOn under sectIOn 48(16) of the Ontario Labour Relations Act to extend the tIme lImIt In thIS case He urged me to consIder ArtIcle 22 1 of the gnevance procedure whIch acknowledges that dIsputes are to be dealt wIth qUIckly by the 6 partIes He further urged me to consIder the nature of the gnevance and the reason for the delay In ImtIally launchIng the gnevance Counsel relIed on the folloWIng cases In support of hIS submIssIOn that the gnevances should be dIsmIssed OPSEU (Gangasingh) andMetropolitan Toronto Housing Authority (1995) G S.B 1386/94 (Mikus) OPSEU (Narine-Singh) and MinistlY of Education and Training (1999) G S.B 0035/98 (LeIghton) OPSEU (Szabo) and Ontario Realty Corporation (2001) G S.B 1811/98 (HerlIch) Counsel for the umon urged me to exerCIse the dIscretIOn under SectIOn 48(16) to extend the tIme lImIts In thIS case Counsel noted that there IS an InstItutIOnal Interest In not requmng a filIng of a gnevance untIl It IS clearly not gOIng to be resolved In the ImtIal stages Counsel argued that the eVIdence showed that Mr St. Jean was attemptIng to resolve the Issue when he met wIth Ms Matthews on June 4 and that he was advIsed by her to gneve later Counsel also noted that the employer had conceded that there had been no preJudIce to them for the delay In consIdenng whether to extend the tIme lImIt, counsel for the umon submItted that I must consIder the nature of the gnevance when the delay occurred, how long It was, and the reason for the delay Counsel relIed on Greater Niagara General Hospital and ONA. (1981) L.AC (3rd) 1 (SchIff) and OPSEU (Stone) and Ontario Clean Water Agency (2001) G S.B 1111/99 (Johnston) SInce I have found that the gnevance was filed Just over three (3) months late, the next Issue to be addressed IS whether I should exerCIse my dIscretIOn to extend the tIme pursuant to sectIOn 48(16) of the Ontario Labour Relations Act It IS establIshed law that the factors to be consIdered In eXerCISIng thIS dIscretIOn are 1) the reason for the delay 2) the length of the delay and 3) the nature of the gnevance ArbItrator Burkett IdentIfied these factors In Becker Milk [cIted In OPSEU (Stone)] and went on to say 7 If the offendIng party satIsfies an arbItrator not wIthstandIng the delay that It acted wIth due dIlIgence, then If there has been no preJudIce the arbItrator should exerCIse hIS dIscretIOn In favour of extendIng the tIme lImIts If, however the offendIng party has been neglIgent or IS otherwIse to blame for the delay eIther In whole or In part, the arbItrator must nevertheless consIder the second and thIrd factors referred to above In decIdIng If reasonable grounds eXIst for an extensIOn of the tIme lImIts After careful consIderatIOn of the eVIdence In thIS case I have decIded that the gnevors were not dIlIgent In filIng theIr gnevances In fact, Mr St. Jean was candId In acknowledgIng he was concerned that If he gneved before reCeIVIng hIS mIleage payments under the mInutes of settlement that he mIght delay the payment of the mIleage Thus, as a matter of fact, I have to find that the gnevors waited untIl they had receIved the mIleage at the end of August before filIng theIr gnevances, even though they knew clearly that the employer had no IntentIOn of paYIng travel tIme to them back on May 9 when they were first IdentIfied as gettIng the posItIOns Thus I cannot accept the submIssIOn of the umon that It was not untIl the gnevor dId not get paid In August that they realIzed that they were not gOIng to get the travel tIme The eVIdence was also clear that, and the gnevor acknowledged, that he had filed gnevances In the past and was fully aware of hIS nght to file a gnevance HavIng found that the gnevors were not dIlIgent In purSUIng theIr gnevances, I turn to a consIderatIOn of the second and thIrd factors IdentIfied In Becker Milk The length of delay IS substantIal - over three months I accept the general pnncIple that there IS an InstItutIOnal Interest In not requmng a gnevance to be filed where efforts are beIng made to resolve It In the ImtIal stages However the eVIdence before me does not support such a findIng In thIS case The thIrd factor the nature of the gnevance, IS of partIcular Importance In thIS case The claim IS under mInutes of settlement agreed to by the partIes In March 2001 It IS a claim for money so does not warrant the same lemency as a gnevance that Involves human nghts or loss of employment. Moreover there IS an InstItutIOnal Interest that any claim under mInutes of 8 settlement be made In a tImely fashIOn. There was no good reason gIven for the delay In filIng the gnevances HavIng carefully consIdered the factors In Becker Milk I have decIded that It would not be appropnate to exerCIse the dIscretIOn under sectIOn 48 (16) of the Ontario Labour Relations Act to extend the tIme lImIts under the collectIve agreement. Thus, for the reasons noted above, the gnevances are hereby dIsmIssed. Dated at Toronto thIS 31 st day of December 2004 t~ --. -'.. '.... ...;' .:_~~.- ..... _{:~. r;,,-..' -~. .. ...." .. :: .- ----=..:.:;~.~.;.~~t/ ~- ~~~. 10.. _ .....~... . u...~._ ~.. ":-:,.. S ~_;::: _ - _ TCh : fa,.,