An arbitrator has ruled that a pension grievance filed seven years beyond a collective agreement’s time limit could proceed because of the employer’s “culture of acquiescence” regarding enforcement of the limit.
“The message to employers is that if they get in the habit of letting time limits slide, their lack of adherence can come back to bite them, especially because it can be tricky for an employer to get back on track,” says Landon Young, managing partner at Stringer LLP and who wasn’t involved in the case.
The case involved Ernest Noseworthy, an employee of Newfoundland Power Inc. and a member of the International Brotherhood of Electrical Workers Local 1620. The union filed a grievance on behalf of Noseworthy, alleging the company gave him incorrect pension information that compromised his pension benefits.
Noseworthy and his wife separated in 2012. He claimed that a human resources professional told him at the time, he could split his pension with his ex-wife but rebuild it in full by working longer. However, in 2015, the company informed Noseworthy that 35 years was the maximum pensionable credited service and that the service lost to his ex-wife was included in that maximum.
It wasn’t until seven years later, in February 2022, that the union filed a grievance. The employer sought to dismiss the grievance as untimely, citing the collective agreement that required a grievance to proceed to arbitration within 45 days of the employee becoming aware of the grounds for the grievance. But arbitrator David Conway allowed the grievance to proceed as the company hadn’t historically enforced the time limits.
“Simply put, the evidence at the hearing demonstrated that there was a culture of acquiescence in terms of grievance time limits up until January 2021,” he stated in his decision. “This course of conduct concerning Mr. Noseworthy’s pension issue was sufficient in nature and extent to constitute a representation that time limits were not going to be enforced concerning his pension issue.”
Conway noted the parties agreed to put Noseworthy’s issue “on hold” in March 2020, which, “impliedly represented that it was considered to be a live issue at that time.” The upshot was that Noseworthy’s pension issue pre-existed and was under discussion when the company started to enforce time limits in January 2021.
“Given the history of acquiescence related to time limits, if the employer wished to call ‘time limits’ on an existing matter such as Mr. Noseworthy’s pension issue in January 2021, then the employer should have done so explicitly,” Conway stated. “Instead, the employer did not do so and thereby impliedly represented to the union that time limits would not be an issue for Mr. Noseworthy’s matter.”
If employers don’t adhere to time limits in collective agreements, they should take precautions, says Ajanthana Anandarajah, an employment and compensation lawyer at Baker & McKenzie LLP and who wasn’t involved in the case. “We advise our clients to get acknowledgments in writing that they are not waiving their rights going forward by failing to insist on time limits on a particular occasion. And most of our clients follow this advice quite strictly.”