GSB# 2006-2107, 2006-2379

UNION# 2006-0302-0006, 2006-0308-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Smith et al.)

Union

• and -

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

Employer

BEFORE

Owen V. Gray

Vice-Chair

FOR THE UNION

Robin Gordon Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Jennifer Richards Counsel Ministry of Government and Consumer Services

HEARING

May 27, 2008.

Decision

1Joan Smith and Cynthia Graham have been Income Support Specialists in the Ontario Disability Program office in Peterborough since mid 2005. In early October 2006 each of them filed a grievance about her pay level in that position. The employer takes the position that those grievances are untimely. The parties agreed that I should rule on that issue as a preliminary matter, reserving to the employer the right to raise other preliminary issues if it does not succeed on this one.

The Agreed Facts

2The parties agreed on the following facts with respect to the grievance of Joan Smith:

Joan Smith

1. Ms. Smith filed a grievance dated October 5, 2006, alleging a violation of Article 3.1 and Article 7.1.2(b) of the Collective Agreement.

2. Ms. Smith is currently an Income Support Specialist (“ISS”) in the Ontario Disability Support Program office in Peterborough.

3. Ms. Smith was a Client Services Representative at the highest salary step when she won the competition for her current permanent ISS position in 2005.

4. Ms. Smith was officially offered the position of permanent ISS by letter dated June 10, 2005. She signed back the letter and accepted the position on June 22, 2005 with the following notation: “*However I would like consideration of payrate at least to third step as I was a permanent ISS for a period of 34 months plus acting positions for a period of 34 months total 68 months. I feel this is a reasonable and non-discriminating request. J Smith.”

5. In or around early July 2005, Ms. Smith’s manager, Joanne Hammers, responded to her request and no change was made.

6. On or around March 8, 2006, Mr. Michael Batrie, Human Resources Manager, Central East Region and Ms. Heather Mauger, Human Resources Consultant, held an information session at the Whitby Office and indicated they were available to help staff with human resources issues.

7. In or around April 2006, Ms. Smith learned from a colleague, L.C., hired around the same time, at a higher salary step on the grid. Ms. Smith believes L.C. started at the fourth salary step. The Employer reserves the right to provide rationale and supporting documentation for this decision should the matter proceed on its merits.

8. Ms. Smith approached her manager, Natalie Hennessey, with a letter dated April 10, 2006. Ms. Hennessey responded in person with the information she had received from Human Resources stating that Joan was at the correct pay level.

9. Ms. Smith followed up with an email to Ms. Hennessey’s Manager, Ms. Chow Ying Wong, on May 23, 2006. Ms. Wong responded by email on May 31, 2006, stating that Ms. Smith’s salary was accurate and that the collective agreement had been followed.

10. On August 30, 2006, Ms. Smith sent an email to Mr. Batrie, requesting his reconsideration of the salary policy. Mr. Batrie responded on August 31, 2006 that he needed more time to respond.

11. Mr. Batrie and Ms. Mauger met with Ms. Smith in Peterborough in or around September 27, 2006 and denied her request. Mr. Batrie indicated to Ms. Smith that she should consider the meeting her Stage I.

12. Ms. Smith filed her written grievance October 5, 2006.

13. Ms. Smith has never been an OPSEU union officer.

14. Ms. Smith has filed a few other grievances in the past related to job competitions and her classification.

The parties put before me the letters to which paragraphs 4 and 8 refer, and the email messages to which paragraphs 9 and 10 refer. The pertinent portion of the letter referred to in paragraph 4 is quoted in that paragraph. In the letter of April 10, 2006 to which paragraph 8 refers, Ms. Smith requested a higher pay level in consideration of her past service, but did not refer to treatment of L.C. or other employees generally. The grievor’s email message of May 23, 2006 repeated the request and arguments she had earlier set out in her letter of April 10th, but again made no mention of the treatment of another or others. The email message of August 30, 2006, to which paragraph 10 refers, included a reference to “other employee’s [sic] who have been able to continue or move forward on the salary grid – NOT backwards and then have to work their way back up” without naming the employee or employees to whom she was referring.

3The parties agreed on the following facts with respect to the grievance of Cynthia Graham:

Cynthia Graham

1. Ms. Graham filed a Stage 2 grievance dated October 10, 2006, alleging a violation of Article 3.1 and Article 7.1.2(b) of the Collective Agreement.

2. Ms. Graham is currently an Income Support Specialist (“ISS”) in the Ontario Disability Support Program office in Peterborough. She was officially offered this position by letter June 7, 2005, which she signed back as accepted August 31, 2005.

3. At the time Ms. Graham won the competition for her current permanent ISS position, she was acting in the role of Special Agreements Officer at the first salary step.

4. In or around April 2006, Ms. Graham learned from Ms. Smith that a colleague, L.C., hired around the same time, was started at a higher salary step. Ms. Smith believes L.C. was started at the fourth salary step. The Employer reserves the right to provide rationale and supporting documentation for this decision should the matter proceed on its merits.

5. Ms. Graham discussed her concerns regarding inconsistent salary placement with the Human Resources Unit in Central East Region in April 2006. On April 24, 2006, Ms. Graham emailed Ms. Mauger, HR Unit, with a question about her pay rate as “It has now come to my attention that the person that finished 3rd was offered at the 4th level.” Ms. Mauger replied by way of email on April 25, 2006 stating that she is paid at the correct rate. Further emails were exchanged that day on Ms. Graham’s concerns.

6. Ms. Mauger and Ms. Graham spoke on the phone in or around late April 2006 to discuss her placement on the salary grid.

7. Ms. Graham emailed Mr. Batrie, Human Resources Manager, Central East Region, in August 2006 regarding the issue of her placement on the salary grid, and followed up with another email in September 2006.

8. In or around September 27, 2006, Ms. Mauger and Mr. Batrie met with Ms. Graham to discuss her concerns. During this meeting, Mr. Batrie and Ms. Mauger reiterated how their salaries were determined. Mr. Batrie indicated to Ms. Graham that she should consider the meeting her Stage 1.

9. Ms. Graham filed her written grievance October 10, 2006.

10. Ms. Graham has never been an OPSEU union officer.

11. Ms. Graham has filed a classification grievance in the past.

The parties put before me the letter to which paragraph 2 refers, and the email messages to which paragraph 5 refers. In her email messages of April 24th and 25th, Ms. Graham said she had recently learned that “the person who finished 3rd” in the ISS competition in which she won her position the year before had been placed at the 4th salary level, whereas she had been placed at the first level. She asked if her seniority, past service in the position and first place finish in the competition had been taken into account in determining her salary level. She also asked why the other person – presumably L. C. – had been treated differently. She was told that in accordance with the collective agreement her pay rate was determined by factors that did not include her seniority or her score in the competition, that her pay rate had been calculated correctly and that her situation was different from that of the colleague to whom she had referred.

The Grievances

4As noted in the agreed statements of fact, the grievances filed by these grievors in October 2006 allege breach of Articles 3.1 and 7.1.2(b) of the collective agreement. Article 3.1 prohibits discrimination on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap as defined in the Ontario Human Rights Code. Article 7.1.2 provides as follows:

7.1.2 An employee who is promoted shall receive that rate of pay in the salary range of the new classification which is the next higher to his or her present rate of pay, except that:

(a) where such a change results in an increase of less than three percent (3%), he or she shall receive the next higher salary rate again, which amount will be considered as a one-step increase;

(b) a promotional increase shall not result in the employee’s new salary rate exceeding the maximum of the new salary range except where permitted by salary note.

5According to the union’s opening statement, the complaint that the union wishes to pursue in these proceedings is not that there was a breach of either Article 3.1 or Article 7.1.2, but that when management promoted the grievors to their current positions in 2005 it had a discretion to place them at a higher salary level than the collective agreement required, failed to exercise that discretion in a reasonable manner in determining the grievors’ salary levels and thereby breached an implied obligation to act reasonably in exercising that discretion.

6The issue in this preliminary objection is not whether the complaint described by the union is properly within the scope of proceedings initiated by the written grievances actually filed by the union on the grievors’ behalf in October 2006, nor whether the grievances are arbitrable or could succeed on their merits, but simply whether they are timely and, if not, whether I should exercise my statutory discretion to extend the time limits so as to eliminate the untimeliness.

The Timeliness of the Grievances

7Article 22 of the collective agreement provides, in part, as follows:

22.1 It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable.

STAGE ONE

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.

22.2.2 If any complaint or difference is not satisfactorily settled by the supervisor within seven (7) days of the discussion and/or meeting, it may be processed within an additional ten (10) days in the following manner:

STAGE TWO

22.3.1 If the complaint or difference is not resolved under Stage One, the employee may file a grievance, in writing, through the Union, with the senior human resources representative in the ministry or his or her designee.

22.14 GENERAL

22.14.1 Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn.

22.14.2 In Article 22, “days” shall include all days exclusive of Saturdays, Sundays and designated holidays.

8The employer argues that the time limit for grieving the pay level assigned to the grievors began to run when they were assigned that pay level in 2005 or, alternatively, in April 2006 when they received the information from which they concluded that their co-worker L.C. had been treated differently. It submits that on either view the filing of grievances about those matters in October 2006 was clearly beyond the time limits to which the parties agreed in Article 22.

9The employer’s objection does not focus particularly on when or whether the grievors discussed their complaint with their immediate supervisor. Nor was there a debate about whether, in calculating the deadline for filing a written grievance, the times specified in Article 22.2.2 are to be added to the 30 day period specified in Article 22.2.1 even if the complaint has not been raised first with the immediate supervisor, either within the 30 period or at all. Its objection is simply that on any view of these issues, the requirements of the collective agreement were not met.

10The union argues that although the grievor had “questions” before then, the grievors did not have a “complaint” until they had exhausted their efforts to ascertain with line management and HR staff the basis of the employer’s decision to assign them the pay rate it did, particularly in light of the apparent treatment of their co-worker L.C. It submits that since the grievors did not receive the last word from the employer on this subject until the meetings of September 27, 2006, the filing of the written grievances thereafter was timely. The union’s representative candidly conceded that she was not in a position to argue that Mr. Batrie’s invitations to treat the meetings of September 27, 2006 as “Stage One” amounted to a waiver of any objection to the timeliness of the grievances.

11Under the collective agreement the time for filing a grievance about particular circumstances begins to run when the grievor knows or ought reasonably to have known of those circumstances, not when he or she recognizes or chooses to assert a claim on the basis of those circumstances. With exceptions not pertinent here, the parties have agreed that an employee will discuss a complaint with her or his immediate supervisor before filing a written grievance about that complaint through the union. The collective agreement does not preclude a grievor’s also discussing the circumstances with other members of management and/or Human Resources staff outside the grievance process and before filing a grievance, but her choosing to engage in such discussions or seek reconsideration of answers she has already received does not extend the time limits specified by the collective agreement. It would be different if a grievor had been asked by management to delay filing a grievance until she had engaged in such additional consultations,¹ but there is no suggestion of that here.

12In so far as the allegations of unreasonable exercise of discretion are based on the grievors’ having previously served in the position that they attained again in 2005, each of the grievors knew of that basis for her complaint in 2005 when the salary level was assigned. The time for grieving on that basis would have begun then. As it is, the primary basis of the complaints is the differential treatment of another employee.² The grievors learned of that circumstance some time in April 2006. The employer did not argue that it ought reasonably to have come to their attention before then. If they had not learned of the basis of their complaints until the last day of April, and had raised those complaints with their immediate supervisor on the last of the 30 days specified in Article 22.2.1, the deadline for filing a written grievance would have been 17 days later. Bearing in mind the definition of “days,” the deadline for filing a written grievance in those circumstances would have been at the end of the first week or beginning of the second week of July 2006. The written grievances were not filed until about three months after that. They are clearly untimely.

Should the Time Limits be Extended?

13The union asks that I exercise my discretion under subsection 16 of section 48 of the Labour Relations Act³ to extend the relevant time limits. That subsection provides:

48(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 of the 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.

While the employer does not allege that the delay has caused it any specific prejudice, the absence of substantial (or any) prejudice is not a sufficient basis for exercising this discretion. The Legislature has required that there must also be “reasonable grounds for the extension.”

14The parties agree, as they did in Stone, 1111/99 (Johnston), that the factors to be taken into by an arbitrator in deciding whether or not to exercise the discretion to extend the time limits are as set out in Becker Milk Company and Teamsters Union, Local 647 (1978), 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217 (Burkett) and Greater Niagara General Hospital and O.N.A. (1981), 1981 CanLII 4449 (ON LA), 1 L.A.C. (3d) 1 (Schiff). As Vice-Chair Johnston noted in Stone, at p. 9:

Arbitrator Burkett identified the following factors to be considered:

1. The reason for the delay given by the offending party.

2. The length of the delay.

3. The nature of the grievance.

This list was repeated and expanded upon by Arbitrator Schiff as follows:

1. The nature of the grievance

2. Whether the delay occurred in initially launching the grievance or at some later stage.

3. Whether the grievor was responsible for the delay.

4. The reasons for the delay.

5. The length of the delay.

6. Whether the employer could reasonably have assumed the grievance had been abandoned.

It is not suggested that Arbitrator Schiff’s list adds anything to Arbitrator Burkett’s that is of particular significance in the context of this case. On the union’s characterization of events, at least, the delay here was in initiating the grievance procedure, not at some subsequent step, and it is undisputed that grievors are entirely responsible for the delay.

15In Becker Milk Company Ltd., supra, Arbitrator Burkett explained the assessment of “reasonable grounds for extension” this way at pages 220 and 221:

The exercise of the equitable discretion vested in an arbitrator under s. 37(5a) [now 48(16] of the Act requires a consideration of at least three factors. These are: (i) the reason for the delay given by the offending party; (ii) the length of the delay; (iii) the nature of the grievance. If the offending party satisfies an arbitrator, notwithstanding 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. … The purpose of the section is to alleviate against technical bars. If the offending party has been negligent in its processing of the grievance but the delay has been of short duration an arbitrator would be permitted to rely on the short period of delay as constituting reasonable grounds for an extension. If the grievance involves the termination of an employee, as distinct from some lesser form of discipline, this is also an equitable consideration which must be taken into account, in deciding if there are reasonable grounds to extend the time-limits.

16Absolutely no explanation or reason for the delay has been given by the grievors. Leaving aside how credible or persuasive such claims might have been, there is no claim that the grievors did not know at their employment was governed by a collective agreement, or that any rights they may have under that collective agreement are enforced, if at all, through the grievance and arbitration process, or that after an initial step that process requires the filing of a written grievance “through the Union”, or that there are time limits for taking steps in that regard. The grievors must be presumed to have known all of those things. They did not act with due diligence.

17As I have already noted, on the view most favourable to the grievors the delay is about three months beyond the already ample time frame provided by the collective agreement for bringing a complaint to the grievance process. This is a substantial delay. A bar based on such a delay could not be described as merely “technical.”

18These grievances are objectively more important to the grievors than a grievance about a day’s pay or minor discipline would be, but less important than a discharge grievance would be.

19The parties referred to various decisions in which this Board, differently constituted, has granted or rejected requests for extension of time limits: Gangasingh, 1386/94 (Mikus), Rondeau, 2171/97 (Leighton), Narine-Singh, 0035/98 (Leighton), Smith, 2002-0243 etc. (Mikus), St. Jean et al., 2001-1122 (Leighton), and Stone, supra. I do not propose to review them all here. In each of them one or more of the relevant factors – the explanation for delay, length of delay and nature of grievance – was different from the corresponding factor here. Perhaps most germane is Stone, supra, in which the Vice-Chair regarded the grievance as akin in importance to a discharge grievance and relieved against a delay of two and a half to three months, but said she might not have done so if she had not been persuaded that the grievor had been unaware of the time limits for filing the grievance. Here the grievance is not akin in seriousness to a discharge grievance, the delay is as long as or longer than the delay in Stone and I am not persuaded that the grievors were unaware of the time limits.

20The parties to this collective agreement have agreed that employee complaints are to be addressed expeditiously, through a process that requires involvement of the union at an early stage and permits it from the outset. The grievors, who are bound by that agreement, chose not to involve the union or engage the grievance process until long after the agreed-upon time limits for doing so had passed. By so doing they risked losing access to arbitration.

21Having regard to the considerations I have identified, I am not persuaded that there are reasonable grounds for extending the time limits applicable to these grievances, and therefore decline to do so.

22Accordingly, these grievances are hereby dismissed as untimely.

Footnotes

1. 1Management would either be estopped from relying on the delay it had induced or its request would be grounds for exercise of the arbitrator’s discretion to extend the time limit.
2. 2I was told during argument that at some point or points in time the employer had said the salary level assigned to L.C. had been a “mistake.” It is not apparent whether it still takes that position or, if it does, what was done to correct that mistake, if anything. It is not apparent whether the union disputes that it was a mistake, or accepts that it was a mistake and argues that the differential treatment of that one employee is nevertheless proof, when taken together with other circumstances, that the employer acted unreasonably in determining the grievors’ pay levels. Again, as I have noted in paragraph [6], in dealing with the issue put before me I am not concerned with whether the grievance as framed by the union is arbitrable or likely to succeed on its merits, but only with whether it is timely. Because I am not concerned with those other issues, the facts put before me may well not be all the facts on which the parties would want those other issues determined.
3. 3Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A. These proceedings are governed by the Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38, as amended, which incorporates by reference various provisions of the Labour Relations Act, including subsection 48(16).