GSB# 2024-02350

UNION# 2024-0340-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Brown-Mitchell)

Union

• and -

The Crown in Right of Ontario (Ministry of Long-Term Care)

Employer

BEFORE

Bram Herlich

Arbitrator

FOR THE UNION

Jorge Hurtado Morrison Watts Hurtado Counsel

FOR THE EMPLOYER

Katie Ayers Treasury Board Secretariat Legal Services Branch Counsel

HEARING

April 8, 2026

Decision

1This case involves a grievance seeking the return of vacation entitlement from 2021.

2The grievor was, at the time, entitled to 3 weeks of vacation per year. She was allowed to have her bank of vacation days grow up to 30 days but was required to use 15 days by the end of the year and then to have the remaining 15 days rolled over to the following year.

3Article 46.5 of the collective agreement provides:

An employee may accumulate vacation to a maximum of twice their annual accrual but shall be required to reduce their accumulation to a maximum of one (1) year’s accrual by December 31 of each year.

In other words, the excess vacation entitlement is to be used or lost by the end of the calendar year.

4There is no provision in the collective agreement that contemplates an employee being paid for unused vacation entitlement, short of a termination of employment. There is no provision in the agreement that contemplates an employee being permitted to roll over excess (i.e. in the grievor’s case those in excess of 15) days to the following year.

5The grievor first raised the issue with the employer in August of 2021. The grievance was filed in November 2024, over 3 years later. The employer asks that the grievance be dismissed as untimely.

6The grievor has filed 3 different grievances. She filed a WDHP complaint in July 2020. She filed an application with the HRTO in March of 2021. Many of her WDHP complaints were substantiated through an external investigation in July 2022. Her first grievance was filed in November of 2022, the second in November 2023 and the third, the one currently being considered, was filed in November of 2024.

7The first and second grievances were settled in November of 2024, the same month that the instant grievance was filed.

8The grievor has not been actively at work since August 2021.

9The union does not dispute that the instant grievance was filed in an untimely manner but asserts that there is good reason to extend the time limits in this case. Relying upon Re Becker Milk Company Ltd. and Teamsters Union, Local 647, 1978 CanLII 3489 (ON LA), the union canvassed the following factors: the reasons for the delay, the length of the delay and the nature of the grievance.

10As far as the reasons for the delay, union counsel submitted that the grievor was absent from the workplace during the time of the delay, she suffered trauma from matters later settled that were active at the time. And despite that, she continued to inquire about her vacation credits but received no reply. She is a black woman who had raised serious troubling workplace concerns that impacted her ability to file a grievance.

11While the length of the delay was substantial, the employer cannot claim it was unaware of the issue, the grievor having raised it on several occasions prior to filing the grievance.

12And finally, with respect to the nature of the grievance, the union points to its assertion that the employer has denied the grievor’s request because of her having raised WDHP and HRC issues, alive at the time, even though now settled. It is alleged that this refusal is payback for having raised those claims.

13I am not persuaded that the union has made a case for the extension of time limits in the case. The grievor managed to shepherd two grievances to arbitration and ultimately to settlement during the period in question, her own doctor asserted that the conditions/sicknesses/ailments the grievor suffered from at the time do not explain the grievor not having been able to file the grievance sooner, and all of the questions she put to the employer about the matter merely beg the question of why a grievance was not filed much earlier.

14As far as the length of the delay goes, the grievor is attempting to recapture credits earned in 2021, the grievance is filed over 3 years later. Even if I were to accept the union’s urging that the exchanges between the grievor and the employer raised some doubt about the relative positions of the parties, that doubt was eliminated in January of 2024, when Mike Moody wrote: “I am unwilling to approve your request to carry forward excess vacation credits from 2021.” Even this marker is some 10 months prior to the grievance being filed.

15Neither does the nature of the grievance commend itself to the extension of time in this matter. This is not a termination case or anything resembling such a case. And neither is there anything in the particulars of the case to support the view that the employer acted out of improper motive in the case. The case is about 21.44 days of vacation time, nothing more, nothing less.

16And, finally, where all of the other factors point against the grievor, there is no need to get into the question of prejudice to the employer.

17In short, I am of the view that the union has failed to make out a case for the exercise of my discretion to lengthen the time limits for the filing of the grievance. The grievance is untimely and must be and hereby is dismissed.

18While my finding is sufficient to dispose of the case, I will, all the same, go on to consider the second branch of the employer’s case – that is that even accepting all of the allegations as true, there is no case to be met.

19The collective agreement is clear as to how vacation entitlement is dealt with. It affords no exceptions. To repeat, the grievor was entitled to carry over 15 days of vacation entitlement from 2020 to 2021. In addition she was entitled to a further 15 days vacation credit for 2021. During 2021 she used 8.56 days of vacation, leaving her with a balance of 21.44 days. But by the end of the year, her balance would have been reduced to 15 days.

20On August 31, 2021, the grievor wrote to Adam Dickey:

...I get 3 week per year as vacation and currently, I have 3 weeks of vacation in my vacation bank plus 6.44 days , a total of 21.44 vacation days. I had plan to use the 6.44 vacation days in December but if I have not returned to work by then, I would like to carry all 21.44 vacation days to 2022. As I will only be able to carry 15 vacation days over, OSS indicated that I will be able to also carry over the 6.44 days as excess vacation days under the circumstances but my manager must complete a form in order for me to do so. However, this form is not available to managers until early 2022. Can you please make a note to approve my 21.44 days for carry over to 2022. I believe that 3 week will be automatically transferred but the 6.44 will be considered excess vacation time and will not be carried over without the manager’s approval.

21The next significant event was on September 8, 2023 when the grievor wrote to payroll as follows:

… I also emailed Kim Clarke, Senior Manager of payroll on August 31, 2023, regarding the 21.44 hours [sic, days] of vacation time that is owing to me, which is to be carried-over and added to my current vacation time total...

22And then finally on January 8, 2024, the grievor wrote to Mike Moody as follows:

I am requesting to be paid my remaining vacation days as per the biweekly pay schedule. I should have 31.58 vacation days remaining, which includes 21.44 vacation days from 2021 …

Mr. Moody responded, on January 14, 2024 that

… At this time, I am unwilling to approve your request to carry forward excess vacation credits from 2021.

23It is difficult to surmise what the grievor’s precise claim is. In the first email, she appears to be concerned with the 6.44 days that would have required some intervention beyond the collective agreement, to have been added to the grievor’s total days. In the second email she appears to be concerned about the loss of the 21.44 days of entitlement. And in the third email, she is requesting to be paid for the 21.44 days.

24There is, however, no collective agreement basis for any of these claims. The agreement contemplates the carryover of 1 year’s vacation entitlement, to be used in the following year. It does not permit the carryover of more than a year’s entitlement or the recapture of vacation entitlement earned 2, 3 and 4 years prior to it being claimed.

25And finally on this branch of the union’s claim, neither does the union’s claim that the refusal was, effectively, payback for the grievor having raised WDHP and HRC issues add anything to the grievor’s claim. There is nothing in the union’s evidence or particulars to support the grievor’s claim. There is no evidence of the employer’s motivation in denying the claim, the union’s claim of improper employer motive remains a bald conclusion of law.

26Thus, I am satisfied that, even if I am wrong in my conclusions about the employer’s first preliminary objection, the employer’s motion to dismiss the grievance must be allowed.

27The grievance is dismissed.