GSB# 2020-2239; 2020-2240
UNION# 2020-0453-0012; 2020-0453-0013
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Cadieux et al)
Union
- and -
The Crown in Right of Ontario (Ministry of Transportation)
Employer
BEFORE
Nimal Dissanayake
Arbitrator
FOR THE UNION
Idan Levy Ontario Public Service Employees Union Grievance Officer
FOR THE EMPLOYER
George Parris Treasury Board Secretariat Legal Services Branch Counsel
HEARING DATE
August 18, 2021
DECISION
1Under article 22.16 of the collective agreement the Board is seized with two similarly worded grievances filed by Mr. Charles Cadieux and Mr. Paul Wheeler, Transportation Enforcement Officers. Each grievor claims call- back pay for multiple days under article UN 9.2.
2This decision determines a motion by the employer for dismissal of the grievances on the ground that they were filed outside the mandatory time limit set out in article 22.2, which requires grievances to be filed “within thirty days after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee”.
3The employer agreed that for purposes of determining this motion the Board may accept the facts asserted by the union. The union asserts that on each of the dates in question the grievors were contacted by the employer notifying them that prior to their next regularly scheduled shift they would be called back to work. The grievors claim that in response to each of those contacts they had to take certain steps and prepare for the call-back. They claim that those preparatory steps constituted “work” as would trigger the minimum four hours of call-back pay mandated by article UN 9.2.
4The employer pointed out that Mr. Cadieux’s last claim is for December 29, 2019, and Mr. Wheeler’s is March 9, 2020. Their other claims relate to even earlier dates. Thus even going by the dates of the last “incident”, Mr. Cadieux’s grievance filed on November 18, 2020 was about 18 months late, and Mr. Wheeler’s grievance filed on November 14, 2020 was approximately 9 months late.
5Counsel submitted that, like claims for any other type of payment such as overtime or premiums, each incident constitutes a separate violation and must be grieved within the 30-day time limit in article 22.2. He argued that as soon as the employer contacted the employee on each occasion, and in response the employee performed the work, the call-back pay provision was triggered. When call- back pay was not received the claim was crystalized and the grievance had to be filed within 30 days. These grievors filed their grievances months/years later. He submitted that there are no grounds for the Board to exercise its discretion to extend time limits under s. 48(16) of the Labour Relations Act and that the Board should dismiss the grievances as untimely. A number of authorities were relied on to support the employer’s motion.
6The union’s primary position is that the grievances were filed in compliance with the time-limit in article 22.2. It agreed that time begins to run under it from the time when the circumstances giving rise to the complaint “have come or ought reasonably to have come to the attention of the employee”. The grievance is crystalized only at that point. Citing authorities to the effect that employees are not required to file grievances in anticipation of a violation by the employer, the union contended that the employer’s position would require employees to grieve before the employer had formally denied their claims.
7The union asserted that a claim for call-back pay is initiated by an employee including the claim for call-back pay in the time sheet. These grievors did not include any claim for call-back pay in their time sheets submitted at the time because they were not aware preparatory work done in advance of the actual call-back may constitute “work” for purposes of article UN 9.2. They realized that only in August of 2020 when Mr. Wheeler, in his capacity as union steward, was assisting some employees with their own claims for call-back pay. Upon that realization, both grievors submitted “amended” timesheets and requested call-back pay for the past dates in question. As soon as the employer denied their request, the grievances were filed.
8It is the union’s position that the 30-day time limit in these circumstances began to run only after the grievors had submitted their amended time sheets and requested payment, and the employer had formally denied it. Until the employer denial was communicated the grievors did not have to grieve in anticipation that the employer would deny their claim. In other words, until then the grievors could not be said to “have known or ought reasonably to have known” that they had a claim to file grievances. They filed their grievances within 30 days of the employer’s denial of their request, and thereby complied with article 22.2.
9In the alternative, the union urged that the Board exercise its discretion to extend time limits under s. 48(16) of the Labour Relations Act, submitting that the criteria arbitrators consider in deciding whether to exercise the statutory discretion favours such a result.
DECISION
10The collective agreement between these parties in article 22.1 explicitly states their mutual intent that grievances should be adjusted “as quickly as possible”. In order to achieve that fundamental objective they have negotiated specific time limits for carrying out various steps in the grievance procedure, including (in article 22.2), a time limit for filing of grievances.
11In the Board’s opinion, acceptance of the union’s submission would completely defeat that intent of the parties, and deny to them the benefit of a fundamental principle that promotes good labour relations the parties explicitly sought to preserve, that grievances should be dealt with expeditiously. Such an interpretation of article 22.2 would entitle an employee who realizes – as result of, for example, coming across an arbitration award or a conversation with union official or lawyer – that he/she may have been entitled to some remuneration or benefit under the collective agreement months or even years earlier, to file a grievance within 30 days of that realization.
12Accepting for present purposes the facts asserted by the union and assuming that the grievors’ claim for call-back pay in the grievances has merit, (which is not conceded by the employer), the grievors were aware on each occasion of the facts that gave rise to their present claim for call-back pay, that is that they were informed of a call-back outside of their regular shifts; that they performed certain work in response to that call-back; and that they were not paid for that work. However, they were unaware at the time that they had a right to be paid, and could have grieved the employer’s failure to comply with article UN 9.2.
13To interpret article 22.2 as the union does would allow an employee to grieve at any time, even many years later, as long as it can be shown that the employee was unaware of his/her rights under the collective agreement. That argument has no more merit than an argument that an employee was not aware that there was a mandatory time limit, and that time does not begin to run until he becomes aware of that.
14I do not accept that the absence of knowledge of a right under the collective agreement and/or the right to grieve on the part of an employee who has full knowledge of the facts giving rise to a claim under the collective agreement is grounds to override the 30-day time limit in article 22.2. The reference in article 22.2 to “circumstances giving rise to the complaint” is a reference to the facts giving rise to a grievance and not a reference to employees’ knowledge of their rights under the collective agreement. There is no assertion that until August of 2020, the grievors had any reason to believe that call-back pay for the dates in question may be still may be paid. They clearly knew call-back pay was not paid as soon as payment pursuant to the time sheets they submitted at the time did not include any call-back pay. Therefore, there was no “anticipation” involved in this case as to whether or not the payments will be forthcoming.
15I also find that there is no justification to extend time-limits in this case based on the arbitral criteria. In fact they lead to the opposite conclusion. The claim is relatively minor. The delay occurred prior to the filing of the grievances, no one else was responsible for or contributed to the delay, and the length of delay was significant.
16In the result both grievances are hereby dismissed.
Dated at Toronto, Ontario, this 24^th^ day of August, 2021.