CANADIAN RAILWAY OFFICE OF ARBITRATION
& DISPUTE RESOLUTION
CASE NO. 4016
CANADIAN NATIONAL RAILWAY COMPANY
JOINT STATEMENT OF ISSUE:
Traffic Controller Jones was on disability leave and in receipt of benefits
disagrees with the Union’s position and denies the
FOR THE UNION: FOR THE COMPANY:
(SGD.) S. BROWNLEE (SGD.) S. M. BLACKMORE
GENERAL CHAIRWOMAN MANAGER, LABOUR RELATIONS
There appeared on behalf of the Company:
S M. Blackmore –
Manager, Labour Relations,
There appeared on behalf of the
S. Brownlee – General Chairwoman, Stony Plain
B. Lussier – Local Chairman,
G. Griesser – General Secretary, Stony Plain
PRELIMINARY AWARD OF THE ARBITRATOR
raises a preliminary issue as to the arbitrability of this grievance. It
submits that the
9.3 The settlement of a grievance shall not under any circumstances involve retroactive pay beyond a period of ninety (90) days prior to the date that such grievance was submitted at Step 1 of the Grievance Procedure.
It is common
ground that on May of 2005 Ms. Jones was disabled and thereby unable to work.
She remained absent, ultimately qualifying for long term disability benefits.
In December of 2007 her family physician found that she was fit to return to
appears that there was some discussion between the parties in early 2008 with
respect to the grievor’s possible return to work, the Company took the position
that there was no appropriate work available to her. It appears that nothing
more ensued, as she continued to receive her long term disability benefits. It
is only in January of 2009, with the grievor’s benefits about to expire
The Company’s representative stresses that the collective agreement was not respected as regards its mandatory time limits. In that regard she refers the Arbitrator to article 9.2 of the collective agreement which provides, in part, as follows:
9.2 A grievance concerning the interpretation, or alleged violation of this Agreement, (including one involving a monetary claim which has been declined or altered by an immediate supervisor or designate), or an appeal by employees who believe that they have been unjustly dealt with, shall be processed in the following manner:
Within twenty-eight (28) days from the date of cause of grievance, or in the case or in cases of appealing discipline, within twenty-eight calendar days from the date the employees are advised of the discipline assessed against them, the Local Chairperson may appeal the decision in writing to the appropriate Company officer. The appeal shall include a written statement of grievance and where it concerns the interpretation or alleged violation of the Agreement, the statement shall identify the Article and paragraph of the Article involved. A decision will be rendered in writing within twenty-eight (28) days of receiving appeal.
9.3 The settlement of a grievance shall not under any circumstances involve retroactive pay beyond period of ninety (90) days prior to the date that such grievance was submitted at Step I of the Grievance Procedure.
grievance not progressed by the
Company’s submission the grievor obviously did not respect the twenty-eight day
time limit of article 92 which is mandatory at Step I of the grievance
procedure and in fact the grievance was filed close to twenty months after the
earliest date of the
The arbitrator or arbitration board may extend the time for taking any step in the grievance process or arbitration procedure set out in a collective agreement, even after the expiration of the time, if the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the other party would not be unduly prejudiced by the extension.
cannot accede to the position of the
In my view the grievor knew, or reasonably should have known, that under the provisions of the collective agreement any compensation in relation to a grievance she might file must be retroactively limited to ninety days prior to the submission of the grievance at Step I. Secondly, bearing in mind the consideration which a board of arbitration must bring to bear in the exercise of its discretion under sub-section 60(1.1) of the collective agreement, no reasonable explanation is given for the delay in the filing of the grievance in question. It would also appear that there would be prejudice to the Company should relief be sought outside that period, as it had no indication during the more than one year period prior to the grievor’s actual reinstatement that she felt there was any violation of her rights, whether under the collective agreement or under the Canadian Human Rights Act. As the Company could not protect itself absent the knowledge of any objection by the grievor during all of that time, the potential for retroactive compensation at this time would, in my view, be plainly prejudicial.
objection is therefore allowed, in part. The Arbitrator finds and declares that
the grievance is not arbitrable with respect to compensation for the period outside
the ninety day limitation period calculated from the date the grievance was
filed, in conformity with article 9.3 of the collective agreement. For the
reasons touched upon above, this is not an appropriate case for the exercise of
the Arbitrator’s discretion to extend the time limits, and the