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HomeMy WebLinkAbout1982-0321.Goheen.83-10-20IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (John Goheen) Grievor - and - The Crown in Right of Ontario (Ministry of Education) Employer Before:~ R. L. Verity, Q.C. Vice Chairman J. Smith Member ,H. Roberts Member For the Grievor: G. Richards Grievance Officer Ontario Public Service Employees Union For the Employer: R. B. I tenson ~. Senior Staff Relations Officer Staff Relations Division 'Civil Service Commission Hearing: July 13, 1983 - 2 - .1 DECISION In a Grievance dated March 3C, 19.82, John GoHeen alleges improper denial by the Ministry of travel expenses contrary to Articles 22 and 23 of the relevant Collective Agreement. In addition, this Grievance includes a claim for "travel time". The matter arises from the Grievor's attendance at a summer training course at the W. Ross Macdonald School at Brantford in July and August of 1981. I il At the outset, the Employer argued that the Grievance was. "untimely" and accordingly the Board was without jurisdiction to determine the merits of the Grievance itself. The Hearing proceeded on July 13, 1983 solely on the merits of the preliminary motion,,.Oral evidence was presented by the Grievor on the pre- liminary motion. The facts are not in dispute in this matter. The Grievor is classified as a Residential Councillor 1, Level 3 at the Sir James Whitney School at Belleville. He obtained that position on January 3, 1980. In a letter confirming t,he appointment dated January 4, Mr. H. Bryant, the School's Assistant Superintendent, Student Se,rvices.stated in' part as foll.ows: "This offer is conditional on your acceptance of attendance at the Residence Counsellor Summer Course expected to be held July 21st to August 22nd, 1980, at Brantford, at which time you will receive $100.00 per week honorarium. Should the course not be held in 1980 you will be expected to attend the 1981 Summer Course." - 3 - did attend a four week summer course Brantford from Ju ly 19 to August 14 completion of the summer course, the No summer course was held in 1980; however,the Grievor in 1981 which was held~ at inclusive. Following the Grievor submitted a travel expense account in the sum of $121.80. To the Grievor's dismay, $126.00 was deducted for income tax purposes from the $400.00 honorari Uill. . . . -. In late September or early October,.l981, the Grievor was advised by Mr. Bryant that the Grievor's travel expense claim had been denied. According to the Grievor's testimony, Mr. Bryant explained that there was no entitlement to travel expenses because the purpose of the honorarium was to defray any expenses incurred during the course. The evidence and~board were provided at the M i also established that all meals nistry's expense. The Grievor told Mr. Bryant .that he disagreed with the Ministry's position and-that he believed he was entitled to, travelling expenses. According to the Grievor's testimony, Mr,. Bryant agreed to contact Mr. David Neill, the Superintendent of the host school at Brantford, with .regard to the tax implications of the honorarium. Fol'lowing that meeting between Mr. Bryant and the Grievor, there were a series of memorandums and exchangesof correspondence directed to the tax implicationsof the honorarium. That matter dragged on for approximately six months, with suggestions being n ” .I. -4- made from time to time by the Union as to how the matter could be resolved. For example'in February, 1982 the Un management to complete a Revenue Canada form T2200 allow expenses to be deducted if those expenses we on requested which would e incurred in the performance of assigned duties.~ That issue was finally disposed of at a meeting at which the Grievor was present on March 9, 1982. The discussion at that meeting focused exclusively Manage- luntary on the treatment of the honorarium for income tax purposes. f ment's position was that it considered the summer course vo in nature and therefore could not agree that the course was part of the Grievor's~ assigned duties. the.Grievance was filed. On the merits of the preli minary motion, management argued that theGrievance was untimely and was accordingly a clear violation of the mandatory requirements of Ar title 27 ,of the Collective Agree-. ment. Subsequently, on March 30, 1982, The Union's argument was that the Grievance was time1.y in that the Grievor was entitled to delay any submission of a Grievance until such time as management clarified in its Owen mind the proper characterization of the summer school course in 1981. It was the Union's position that it was not until the meeting of ~March 9 that management fin~ally clarified its rejection of the assigned d.uty characterization of the course for income tax purposes. It is now well established by Awards of the Grievance Settlement Board that the time limits specified in Article 27 of the Parties' Collective Agreement are mandatory in nature and not directory. See Keeling and Ministry of Transportation and Communications, 45/78 (Prichard); and Parr and Ministry of Education, 317/82 (Swan). It would appear that the relevant Collective Agreement is the previous Agreement between the Parties which is effective ;i~ ., from January 1, 1980 to and including December 31, 1981. Article 27.2.1 of the Agreement reads: "An employee who believes he has a complaint or a difference shalj~ first discuss the complaint or difference with-his supervisor within twenty (20) days of first becoming aware of the complaint or difference.". Article 27.2.~2 reads: "If any complaint or difference is not satisfactorily settled by the supervisor within seven (7) days of the discussion, it may be processed within an addi- tional ten (10) days in the following manner:..." that if the Grievance is not Article 27.9 provides pursued within the time allocat it shall be deemed to have been ion provided in t~he Article; then withdrawn: - 6 - Further, Article 27.11 provides for an extension of time limits set out in the Article "upon agreement of the Parties in writing". In the instant Grievance, there was no such written agreement to extend the time limits of Article 27. In fact, the Employer carefully set out its object ion to the timeliness of the instant Grievance at each step of the grievance procedure. ,ievance This Board is of the opinion that the instant Gr was filed far beyond the time limitations set out in Artic The Grievor knew in late September or early October that h le 27. is travel expense claim had been rejected by the Ministry. Al'1 subsequent discussions between the Parties dealt solely with the tax implications of the honorarium. That is a matter that does not in itself flow from the Collective Agreement, and accordingly would not have been arbitrable. The dispute that was arbitrable was the denial of the travel expense c.laim. Accordingly on a finding that this Grievan~ce is untimely, then the merits of the Grievance are not arbitrable. In the result, this Grievance is dismissed. DATED at Brantford 2: l?OO 2: 13 0.0 2: 2200 .;; 3120 3-128 . 3130 8: 3700 Ontario, this 20th day of Cetober, 1983. ,>-=--A L e- -7 R. L. Verity, Q.C. - Vice-Chalrman~ "I dissent" (to follow) "(G,MTeW .* H. Robs& - Member