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 Labour 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.

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 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 ‘a 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 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 “the 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 “end of the road”, and she gave up hopes.

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 “benefits 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 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 “the circumstances giving rise to the complaint or difference”. In her view, in this case the 10 days under this provision began to run as soon as Ms. Fudge’