GSB#2009-2329, 2009-3373

UNION#2009-0644-0002, 2009-0644-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Labrecque)

Union

• and -

The Crown in Right of Ontario (Ministry of Natural Resources)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Mark Barclay Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Tracy Demal Ministry of Government Services Manager - Corporate Advisory Services

HEARING

August 12, 2010.

Decision

1Two grievances dated June 29, 2009 and November 18, 2009 respectively, filed by Mr. Jess Labrecque (“the grievor”) came before the Board for mediation-arbitration pursuant to article 22.16 of the collective agreement. Since mediation efforts did not result in a resolution of either grievance, both parties requested that the Board determine them by rendering a decision.

2In reaching the decision herein set out, I have taken into consideration the facts presented at the hearing, documentation submitted, and the positions advanced by both parties.

3The grievor was employed from 1964 as a seasonal employee by the Ministry of Lands and Forests, the predecessor of the present Ministry of Natural Resources. He continued employment as a seasonal employee with the Ministry of Natural Resources until 1991, when he was appointed to the classified service.

4The grievances are related and raise two issues. First, it is claimed by the grievor that his continuous service date has been incorrectly calculated as a result of the employer’s failure to take into account certain periods of employment he had in the 1960’s and 1970’s. Second, the grievor claims that he is entitled to buy back pension credits for the period 1964 to 1971, with the employer sharing the cost.

5The employer took the position that neither grievance has merit. It submits that the grievor’s continuous service date has been correctly calculated. It relied on a number of documents dated back in the early 1990’s, wherein the grievor had acknowledged that his continuous service date was March 26, 1985. The employer submits that under the OPSEU Pension Trust Plan that existed at the time, the grievor had a limited window of 24 months in which to buy back his pension credits and that the grievor had not done so. Very recently the OPSEU Pension Trust Plan was amended to allow employees to buy back pension credits for past service outside the 24 month window, but it clearly stipulates that the full cost of the buy back must be borne by the employee. Thus, the employer submits that it is still open to the grievor to buy back his pension credits, but he must bear the total cost.

6Aside from the merits of the grievances, the employer submitted that the grievances are inarbitrable for several reasons. One ground advanced was that the grievances were filed beyond the mandatory time limits set out in article 22 of the collective agreement.

7The explanation offered on behalf of the grievor for the significant delay in filing the grievances was that the grievor trusted the employer to do things correctly. It was submitted that fairness requires that his grievances be heard and granted, because it was the employer, not the grievor, who made the mistake.

8There is no dispute that the grievances are untimely. The delay in filing the instant grievances is extreme. The grievor is seeking to remedy mistakes allegedly made by the employer in the 1960s and 1970s. I find that the explanation offered is not sufficient to cause me to exercise my discretion to extend time limits in the circumstances.

9Accordingly, I find that the two grievances before me are untimely, and therefore inarbitrable. Given that disposition, it is unnecessary for me to address the employer’s alternative arguments as to inarbitrability or the merits of the grievances. Both grievances are hereby dismissed.