OPSEU (Ritchie) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2008 CanLII 13603

GSB# 2007-0277

UNION# 2007-0551-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Ritchie)

Union

• and -

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

Employer

BEFORE

Daniel A. Harris

Vice-Chair

FOR THE UNION

Kirsten Agrel Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Ryan Conacher Counsel Ministry of Government and Consumer Services

HEARING

March 4, 2008.

Decision

The Proceedings

This is a claim for travel and meal expenses for the period during which the grievor, Dawn Ritchie, was on temporary assignment to the Burlington probation and parole office. She was there from June 2004 until December 11, 2006. Her home position was at the Parkdale office. On December 11, 2006 she was assigned to the Mississauga office. On January 25, 2007, the grievor asked her supervisor whether she was eligible for those expenses. On February 5, 2007 she was told that she was not. She grieved on February 8, 2007. The employer brings this preliminary application to dismiss the grievance because it is out of time.

The Facts

The parties filed the following agreed statement of facts:

OPSEU (Ritchie) and MCSCS

GSB #: 2007-0277

AGREED STATEMENT OF FACTS FOR THE EMPLOYER’S TIMELINESS MOTION

1. The Grievor became a classified Probation and Parole Officer on April 8, 2004.

2. The Grievor’s home position is at Parkdale Probation and Parole (“P & P”) Office.

3. The grievor moved to Burlington P & P in June 2004.

4. The grievor moved to Mississauga P & P on or about December 11, 2006.

5. The Grievor is claiming entitlement to Article 13, 14 and COR 12 benefits for the period of time from June 2004 to December 11, 2006 (the “relevant period”) while she was working at Burlington P & P.

6. On or about January 25, 2007, the grievor advised Dona Sverdrup that she “may be eligible for meal/travel allowances due to the temporary assignment [she] was placed on at Burlington.” She asked for a response.

7. On or about February 5, 2007, Ms. Sverdrup responded to the grievor’s email indicating that she was not so entitled.

The Submissions of the Parties

The Employer submitted that the grievance was of a continuing nature. In that regard, it said that each instance when travel or meal expenses was claimable ought to have been pursued as they were incurred. Article 22.2.1 allows 30 days to discuss concerns with a supervisor and no such discussions ensued from June 2004 until January 25, 2007. This latter date was itself more than 30 days after the grievor stopped traveling to Burlington. Accordingly, it was submitted that none of her travel/expense claims were discussed with her supervisor within the time frames required. Article 22.2.1 reads as follows:

22.2.1 It is the mutual desire of the parties that complaints of employees be adjusted as quickly as possible and it is understood that if an employee has a complaint, the employee shall meet, where practical, and discuss it with the employee’s immediate supervisor within thirty (30) 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 in order to give the immediate supervisor an opportunity of adjusting the complaint.

The Employer also submitted that the time for filing a grievance may be extended by the Board where there are reasonable grounds for the extension and there is no substantial prejudice to the opposite party. Section 48(16) of the Ontario Labour Relations Act, 1995, governs such extensions. It reads as follows:

Extension of time

(16) Except where a collective agreement states that this subsection does not apply, an arbitrator or arbitration board may extend the time for the taking of any step in the grievance procedure under a collective agreement, despite the expiration o time, where the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension. 1995, c.1, Sched. A, s.48 (16).

The Employer submitted that there were no reasonable grounds for the extension. It also claimed that it would be substantially prejudiced by any extension. The Employer relied upon the following authorities: OPSEU (St. Jean et al.) and Ministry of Community Safety and Correctional Services (2004), GSB #2001-1122; OPSEU (Gangasingh) and Metropolitan Toronto Housing Authority (1995) GSB #1386/94; OPSEU (Upshaw) and Ministry of Health (1999), GSB #2163/97; OPSEU (Narine-Singh) and Ministry of Education and Training (1999), GSB #0035/98; OLBEU and Liquor Control Board of Ontario (1998), 1635/96.

The Union submitted that the time does not begin to run for filing a grievance until after a difference between the parties arises. Here, it was not until February 5, 2007 that the grievor knew that the Employer was denying her travel and meal expenses. It was on that date that the dispute arose and she promptly filed her grievance. In any event, article 22.2.1 does not address the time for filing expense claims. It is articles 13 and 14 that deal with travel expense claims and COR 12 that deals with meal allowances. Those provisions do not contain any restrictions as to when expense claims must be submitted. The only temporal reference is in article 13.2, which reads as follows:

13.2 Kilometers are accumulated on the basis of a fiscal year (April 1 to March 31, inclusive).

Accordingly, the Union submitted that expense claims were not continuing matters arising as they were incurred. That is, the obligation to file for expenses is an annual obligation. The Union also referred to the Employer’s Policy Directive, “Travel, Meal and Hospitality Expenses Directive.” Paragraph 5 sets out the following time limit for claims:

Time Limit for Claims

5. All claims must be submitted on a timely basis, and no later than the end of the first quarter of the fiscal year following the fiscal year in which the expense was incurred. Managers may extend this time limit using the principles to guide exceptions set out in this Directive.

The Union said that by the Employer’s own policy, the grievor’s request to have her travel and meal expenses paid were not out of time. The Union said that there was no time limit in the collective agreement for filing these claims, so the entire amount may be claimed in the grievance. In the alternative, the only time reference is to the last fiscal year.

In the further alternative, if an extension of time is necessary, the Union submitted that there was no excessive delay from December 11, 2006 to January 25, 2007 and no real prejudice to the Employer if the time were to be extended pursuant to s.48(16). The Union relied on: OPSEU (Hanson) and Ministry of Community Safety and Correctional Services (2005) 81 C.L.A.S. 107 (Briggs).

In reply, the Employer said that the grievor never put in an actual expense form, so paragraph 5 of the directive has no application. As to the Hanson case, there the Employer did not raise any timeliness objection.

Reasons for Decision

The submission of travel and meal expenses is governed by the collective agreement and the Directive. The reasonableness or otherwise of the employer’s policy directive has not been placed before me. In my view, in these circumstances, the directive is the standard that determines when expense claims are to be submitted. I note that it is consistent with article 13.02 in expressing the fiscal year as the reference time period. On its face the directive permits the submission of expense claims up until the end of June for claims arising from the prior fiscal year. In the context of this matter, the grievor, at the latest, would have been permitted to submit her 2004 claims in June 2005, her 2005 claims in June 2006 and her 2006 claims in June 2007. She first raised these matters with her supervisor in January 2007. Accordingly, her 2004 claims were some nineteen months late. Her 2005 claims where some seven months late and the maximum time for submitting her 2006 claim had not yet expired.

There is no explanation on the record for the delay in submitting her 2004 and 2005 claims. The Employer correctly submitted that the test is an objective one. Based on the submissions made before me, there are no grounds to extend the time for the submission of those claims.

The language of the directive is that the claims must be “submitted.” The Employer’s submission that the grievor did not submit the final expense claims before June 30, 2007 is not helpful in these circumstances. The grievor clearly raised her concerns with her supervisor on January 25, 2007. She was told she was not eligible to be reimbursed and promptly filed her grievance. To require that she actually file a form prior to grieving, presumably in order to have it rejected, would be overly technical in these circumstances. The parties knew of the dispute in February 2007 and a grievance was filed in a timely manner.

The Decision

In the circumstances of this matter, the grievance as it relates to fiscal 2006 expenses is not out of time and may proceed to a hearing on the merits. The claim as it relates to 2004 and 2005 expenses is dismissed as untimely.

Dated at Toronto this 6th day of March, 2008.```