GSB# 2001-1122

UNION# 2001-0411-0022 [01C822]

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (St. Jean et al.)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

D.J.D. Leighton

Vice-Chair

FOR THE UNION

David Wright Ryder, Wright, Blair & Doyle Barristers and Solicitors

FOR THE EMPLOYER

Len Hatzis Counsel Management Board Secretariat

HEARING

March 9, 2004.

Decision

The issue before me is whether these grievances are timely. Four correctional officers allege that they should have been paid travel time after the closure of L’Original Jail. The employer takes the position that the grievances are not timely, and further that it is not appropriate to exercise the discretion under section 48(16) of the Ontario Labour Relations Act, 1995 to extend the time limit. The employer also takes the position that the grievors’ claim for travel time is a continuing grievance that began on July 24, 1998 and ended on May 9, 2001, and is thus some three and one-half months late.

The union takes the position that the grievors’ claims arise out of and as a consequence of the board’s earlier decision involving the closure of L’Original Jail, OPSEU (Union Grievance) and the Ministry of the Solicitor General and Correctional Services (2001) 1154/98. This decision held that correctional officers at L’Original were entitled to be offered positions at Ottawa Carleton Detention Centre on the basis of their seniority pursuant to the provisions of Appendix 13 of the collective agreement. The parties agreed in a memorandum of settlement dated March 13, 2001, to a process of identifying correctional officers for the nine positions. The memorandum of settlement provided in part:

4.3

Employees who accept a position in accordance with 4.1 or 4.2 above, and who relocate in accordance with the relocation policy or have previously relocated, and who commuted to their ministry job beyond 40kms are entitled to receive travel expenses in accordance with the ministry policy for the period between the closure of L’Original Jail and their acceptance of a position in accordance with #2 above, or their original relocation date.

The grievors were paid mileage. They take the position that they were also entitled to travel time under the settlement.

Under the memorandum’s process it took until May 9, 2001 to identify the grievors as being entitled to positions at OCDC. Union counsel takes the position that this is when the claim to travel time crystallized. Without first getting a position at OCDC, the grievors were not entitled to travel expenses.

Ms. Judy Prevett testified that in the spring of 2001 she was a member of the Employee Transition Unit. On April 9, 2001, there was a meeting held where all the grievors were present. The purpose of the meeting was to discuss the March 13, 2001 minutes of settlement and its effect on the L’Original Correctional Officers. Ms. Prevett testified that at that meeting there was a discussion regarding payment for travel time and the employer stated that only mileage would be paid and not travel time. She testified further that it was clear at that meeting that if the grievors thought that they were entitled to be paid for their travel time to OCDC that they should grieve. She testified that it was clear from the meeting that the employer had no intention to pay for travel time pursuant to the March 13, 2001 settlement. In cross-examination, Ms. Prevett acknowledged that the grievors were concerned that if they accepted this settlement they would waive their rights to claim travel time.

Mr. Pierre St. Jean testified on behalf of the grievors that he was one of the correctional officers to be assigned to OCDC under the March 13, 2001 minutes of settlement. He received notice that he was entitled to the position on May 9, 2001. Mr. St. Jean attended the April 9, 2001 meeting. He testified that at that meeting he stated his concern, that if he accepted payment for mileage he would not be entitled to grieve travel time. On May 16, Mr. St. Jean wrote to Mr. Michael Cote, Superintendent of OCDC, outlining both mileage and travel time claims from August 1998 to May 9, 2001. As a result of sending this letter he met with Ms. Karen Matthews, Human Resources Consultant, on June 4 at OCDC. Mr. St. Jean testified that when he raised the issue of payment for travel time with Ms. Mathews that she indicated he could grieve for travel time later, but that it was not going to be paid under these minutes of settlement. Mr. St. Jean stated that he filed the grievance for travel time in September after receiving his payment for the mileage. He testified that the grievors thought that, if they grieved the travel time before receiving the mileage, the employer would hold back on that payment. On cross-examination he acknowledged that he had been with the ministry for twenty-two years in 2001. He stated that he understood the collective agreement and that he had filed grievances in the past.

DECISION

The first issue that I must address is whether or not the grievances before me amount to a continuing breach of the collective agreement as submitted by the employer. Counsel argued that the travel to OCDC began in 1998, and each instance of driving to OCDC amounted to a single grievable incident. Thus, given the jurisprudence on continuing grievances, a grieving party would only be entitled to damages for the breaches that occurred within the time limit for filing the grievance under the collective agreement. And so the remedy here would be limited. Although normally a travel time grievance would be considered a continuing grievance, in this case I am satisfied that the union’s position is correct, that the grievors’ claim rests on the minutes of settlement agreed to by the parties on March 13, 2001 in order to implement the board’s decision in OPSEU (Union Grievance) and the Ministry of the Solicitor General and Correctional Services (2000) G.S.B. 1154/98. As union counsel noted, there is no obligation on the employer to pay for travel time between work and a person’s headquarters. As a general rule, Article 14 would not apply. The grievors’ claims can only arise after the decision that their headquarters in effect had been moved from L’Original to OCDC and they were entitled to positions at OCDC, which they were not given under Appendix 13 before the decision. Thus while normally such a grievance would be a continuing grievance, it is not in the special circumstances of this case.

Since I have found that any entitlement or rights flow from the settlement dated March 13, 2001, I am satisfied that the earliest date that the grievors could have filed their grievance was on May 9 when they received confirmation of their positions at OCDC. I am not persuaded that the time should run from April 9, 2001, the date of the information meeting that explained the grievors rights under the minutes of settlement. However, this date is important because I accept the evidence of the employer that the grievors were told on April 9 that mileage would be paid to them if they took a position, but not travel time. Mr. St. Jean’s evidence on this was that he could not remember clearly what had been said. However, Ms. Prevett, testifying for the employer, was clear in her memory that the grievors were told travel time would not be compensated: this is also reflected clearly in her notes. Thus the evidence establishes that the grievors were told on April 9 that under this particular settlement they would not receive compensation for travel time. Even though they were thus informed, I am of the view that they could not have filed a grievance until May 9 when they received their positions. Thus the clock began to run on May 9, 2001.

The collective agreement provides that employees must file a grievance within thirty (30) days of the circumstances giving rise to the complaint. Since the grievances were not filed until September 18, 2001, the grievances were just over three (3) months late. Counsel for the employer urged me not to exercise the discretion under section 48(16) of the Ontario Labour Relations Act to extend the time limit in this case. He urged me to consider Article 22.1 of the grievance procedure which acknowledges that disputes are to be dealt with quickly by the parties. He further urged me to consider the nature of the grievance and the reason for the delay in initially launching the grievance. Counsel relied on the following cases in support of his submission that the grievances should be dismissed: OPSEU (Gangasingh) and Metropolitan Toronto Housing Authority (1995) G.S.B. 1386/94 (Mikus); OPSEU (Narine-Singh) and Ministry of Education and Training (1999) G.S.B. 0035/98 (Leighton); OPSEU (Szabo) and Ontario Realty Corporation (2001) G.S.B. 1811/98 (Herlich).

Counsel for the union urged me to exercise the discretion under Section 48(16) to extend the time limits in this case. Counsel noted that there is an institutional interest in not requiring a filing of a grievance until it is clearly not going to be resolved in the initial stages. Counsel argued that the evidence showed that Mr. St. Jean was attempting to resolve the issue when he met with Ms. Matthews on June 4, and that he was advised by her to grieve later. Counsel also noted that the employer had conceded that there had been no prejudice to them for the delay. In considering whether to extend the time limit, counsel for the union submitted that I must consider the nature of the grievance when the delay occurred, how long it was, and the reason for the delay. Counsel relied on Greater Niagara General Hospital and O.N.A. (1981) L.A.C. (3rd) 1 (Schiff) and OPSEU (Stone) and Ontario Clean Water Agency (2001) G.S.B. 1111/99 (Johnston).

Since I have found that the grievance was filed just over three (3) months late, the next issue to be addressed is whether I should exercise my discretion to extend the time pursuant to section 48(16) of the Ontario Labour Relations Act. It is established law that the factors to be considered in exercising this discretion are 1) the reason for the delay, 2) the length of the delay, and 3) the nature of the grievance. Arbitrator Burkett identified these factors in Becker Milk [cited in OPSEU (Stone)] and went on to say:

If the offending party satisfies an arbitrator, not withstanding the delay, that it acted with due diligence, then if there has been no prejudice the arbitrator should exercise his discretion in favour of extending the time limits. If, however, the offending party has been negligent or is otherwise to blame for the delay, either in whole or in part, the arbitrator must nevertheless consider the second and third factors referred to above in deciding if reasonable grounds exist for an extension of the time limits.

After careful consideration of the evidence in this case, I have decided that the grievors were not diligent in filing their grievances. In fact, Mr. St. Jean was candid in acknowledging he was concerned that if he grieved before receiving his mileage payments under the minutes of settlement that he might delay the payment of the mileage. Thus, as a matter of fact, I have to find that the grievors waited until they had received the mileage at the end of August before filing their grievances, even though they knew clearly that the employer had no intention of paying travel time to them back on May 9 when they were first identified as getting the positions. Thus I cannot accept the submission of the union that it was not until the grievor did not get paid in August that they realized that they were not going to get the travel time. The evidence was also clear that, and the grievor acknowledged, that he had filed grievances in the past and was fully aware of his right to file a grievance.

Having found that the grievors were not diligent in pursuing their grievances, I turn to a consideration of the second and third factors identified in Becker Milk. The length of delay is substantial – over three months. I accept the general principle that there is an institutional interest in not requiring a grievance to be filed where efforts are being made to resolve it in the initial stages. However, the evidence before me does not support such a finding in this case. The third factor, the nature of the grievance, is of particular importance in this case. The claim is under minutes of settlement agreed to by the parties in March 2001. It is a claim for money, so does not warrant the same leniency as a grievance that involves human rights or loss of employment. Moreover, there is an institutional interest that any claim under minutes of settlement be made in a timely fashion. There was no good reason given for the delay in filing the grievances.

Having carefully considered the factors in Becker Milk, I have decided that it would not be appropriate to exercise the discretion under section 48 (16) of the Ontario Labour Relations Act to extend the time limits under the collective agreement.

Thus, for the reasons noted above, the grievances are hereby dismissed.

Dated at Toronto this 31st day of December, 2004.