GSB#2016-0785

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

The Association of Management, Administrative and Professional Crown Employees of Ontario (Robins)

Association

• and –

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

Employer

BEFORE

Gordon F. Luborsky

Arbitrator

FOR THE ASSOCIATION

Kelly Doctor Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Felix Lau Treasury Board Secretariat Legal Services Branch Counsel

HEARINGS

January 23, October 2 and 23, 2017

Decision

I. Introduction

1The parties agree that I have jurisdiction to determine a formal dispute dated March 10, 2016 filed on behalf of Ms. Jaimie Robins (“Complainant”) which states in relevant part:

In accordance with Article 15.3.1 of the AMAPCEO Collective Agreement, the Association, on behalf of [Jaimie Robins], is filing a formal dispute. We file this in order to resolve our complaint that the Employer has breached the following.

• Article 3

• And any other provisions of the AMAPCEO Collective Agreement that are relevant.

The Association also alleges the Employer violated their obligations under the notice of termination in accordance with Section 58(1) of the Employment Standards Act (2000), S.O. 2000, c. 41 and Section 3(1) of Ontario Regulation 288/01 as amended, Termination and Severance of Employment.

In particular, the Association alleges the Employer erred by not providing Ms. Robins her 16 weeks’ notice until two weeks prior to her contract end date. The Association also alleges that the Employer erred by offering Ms. Robins with a starting salary of $68,000 and later that day communicated her salary would be $63,000.

As redress, the Association is seeking:

In order to resolve this dispute we are requesting in accordance with 15.5.7 disclosure from the Employer on all information relied upon by Management that is subject to this dispute.

We reserve the right to alter our requested redress once we’ve received the disclosure.

2In broad overview, the Complainant was hired on a “fixed term contract” commencing September 10, 2015 in the position of “Learning and Development Coordinator” within the Business Planning and Corporate Services Branch of the Ministry of Community and Social Services (“MCSS”) that was scheduled to end on March 10, 2016. The Complainant signed the contract on September 10 indicating that her rate of pay was $68,000 per annum (“first contract”). The next day, the Employer purported to have discovered an “error” in the salary, and thus it presented the Complainant with a second contract reducing her salary to $63,482 per annum, which the Complainant signed under circumstances described below (“second contract”). The Employer claims that at the same time it presented the first and second contracts it also served the Complainant with notice of termination by separate letter dated September 10, 2015 that was intended to satisfy the Employer’s obligation to provide at least 16 weeks’ notice in accordance with Section 58(1) and Ontario Reg. 288/01 of the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”) which the Complainant denies seeing until two weeks before her contract ended.

3Consequently, the Association alleges that in addition to the difference in salary from $68,000 to $63,482 prorated for the term of her contract (which the Association has calculated as $2,200) she is entitled to 14 weeks’ pay for insufficient written notice of termination prescribed by O. Reg. 288/01 under the ESA that the Association has determined to be $18,307 based on her original $68,000 salary or $17,609 at her actual lower annual rate of $63,482.

4The Employer denies any violation of the collective agreement or ESA. It also challenges my jurisdiction to adjudicate on the question of whether the Complainant’s salary was improperly reduced because the Complainant waited until she was leaving her employment on March 10, 2016 to file the dispute, which was more than 30 days after the circumstances giving rise to that part of her complaint in violation of the time limit for pursuing complaints under Article 15.3.1 of the collective agreement. The parties nevertheless agreed to present their evidence on the merits of all aspects of the dispute without prejudice to the Employer’s jurisdictional objection, with the timeliness issue argued at the end of the case.

II. Collective Agreement and Statutory Provisions

5The relevant provisions of the collective agreement and applicable statutory enactments are set out below.

COLLECTIVE AGREEMENT

April 1, 2014 to March 31, 2018

ARTICLE 3 – MANAGEMENT RIGHTS

3.1 Subject only to the provisions of this Agreement, the right and authority to manage the business and direct the workforce, including the right to hire and layoff, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer.

ARTICLE 15 – DISPUTE RESOLUTION PROCEDURE

15.1 Statement of Intent

The Employer and the Association acknowledge the importance of resolving disputes arising from the interpretation, application, administration or alleged violation of this agreement, (hereinafter referred to as “disputes”), at an early stage, and, whenever possible, at the local level, in order to foster a harmonious and productive working environment. In this respect, the parties recognize the importance of informal means of resolving employee complaints at the lowest level possible before they become formal disputes under this Article and that nothing in this Article is intended to discourage the ordinary local workplace resolution of employee complaints outside of this dispute resolution process. The parties further acknowledge the importance of full disclosure of issues and open discussion throughout the process to facilitate mutually acceptable resolutions.

15.2 Information Resolution Stage

15.2.1 An employee who has a complaint may raise the complaint with his or her manager, with a view to having that complaint resolved without having to invoke the Formal Resolution stage of this Dispute Resolution Procedure. The employee shall have the right to be accompanied and represented by an Association representative at this stage of the Dispute Resolution Procedure.

15.3 Formal Resolution Stage

15.3.1 If the complaint is not resolved to the satisfaction of the employee through the informal resolution stage, the Association, on behalf of the employee, may submit a dispute in writing to the manager, for transmittal to the designated management representative, 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.

15.5 General

15.5.4 Where a complaint or dispute has not been processed by the employee or the Association within the time period prescribed it shall be deemed to have been withdrawn.

15.5.6 In this Article, days shall include all days exclusive of Saturdays, Sundays and designated holidays.

15.5.7 The parties agree to fully disclose, at the earliest stage of the dispute resolution procedure, all information on which they rely in support of or in response to a complaint or dispute, including disclosure of any facts relied upon by Management in a decision that is subject to a complaint or dispute.

ARTICLE 19 – PAY ADMINISTRATION FOR REGULAR EMPLOYEES

19.1 Pay Administration on Promotion

19.1.2 An employee who is promoted shall receive a promotional increase of at least three percent (3%); however, in no case shall the resulting salary be less than the minimum or greater than the maximum of the classification of the positon to which he or she is assigned.

EMPLOYMENT STANDARDS ACT, 2000

58. (1) Notice, 50 or more employees. – Despite section 57, the employer shall give notice of termination in the prescribed manner and for the prescribed period if the employer terminates the employment of 50 or more employees at the employer’s establishment in the same four-week period.

ONTARIO REGULATION 288/01

TERMINATION AND SEVERANCE OF EMPLOYMENT

Notice, 50 or more employees

3. (1) The following periods are prescribed for the purposes of subsection 58(1) of the Act:

4. Notice shall be given at least 16 weeks before termination, if the number of employees whose employment is terminated is 500 or more.

LABOUR RELATIONS ACT, 1995, S.O. 1995, c. 1, Sched. A

48. (12) Powers of arbitrators, chair of arbitration boards, and arbitration boards. – An arbitrator or the chair of an arbitration board, as the case may be, has power,

(f) to accept the oral or written evidence as the arbitrator or the arbitration board, as the case may be, in its discretion considers proper, whether admissible in a court of law or not.

48. (16) Extension of time. – 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.

III. The Evidence

6The Complainant was the only witness called by the Association. On behalf of the Employer I heard testimony from the Complainant’s manager, Ms. Vajitha Ghouse and the then Administrative Coordinator for the Branch, Ms. Caroline Efueye. There are conflicts in the evidence that may be summarized as follows.

(a) Pre-Contract Discussions

7The Complainant worked as an administrative assistant in the Education Labour Relations Branch of the Ministry of Education from on or about March 17, 2014 until January 6, 2015. She subsequently accepted another term assignment in the Negotiations and Security Branch of the Treasury Board Secretariat (which was excluded from the bargaining unit because of its involvement in confidential labour relations matters) from January 7 to July 31, 2015, with a salary at the annual rate of $60,400. This was a contract position that was extended twice. She acknowledged that being employed in a labour relations role she knew about the time limits for filing complaints under the AMAPCEO collective agreement. When that assignment ended, she testified she “launched a full-scale job search and contacted external recruiters” becoming aware of opportunities at the Ministry of Community and Social Services, which led her to meet with Ms. Vajitha Ghouse on August 14, 2015.

8The Complainant’s evidence is that during their meeting, Ms. Ghouse told her that four or five people had recently left her Unit and thus she was looking to fill a number of vacancies. According to the Complainant, Ms. Ghouse said that her Unit was going through a restructuring requiring flexibility to the changing roles and responsibilities of the various positions that had not been finalized. The Complainant testified that together they reviewed a number of available jobs matching the Complainant’s qualifications that included “Senior Analyst” and “Team Lead”. When Ms. Ghouse asked what the Complainant’s salary expectations were, the Complainant told her it would be at the “Level 5” salary band under the collective agreement which the Complainant claimed they reviewed together in order to confirm the precise range. The meeting went very well and it was the Complainant’s contention that “we verbally agreed” if the Complainant was hired “it would be at salary band Level 5 at the lowest end” and Ms. Ghouse concluded by telling the Complainant she would “do the best” for the Complainant; although the Complainant also acknowledged that no actual offer of a position or specific salary was made to her at that time.

9Much of this is disputed by Ms. Ghouse who was the Senior Manager of the Renewal Strategies Office in August of 2015, having commenced in that role two months earlier in June of 2015. Ms. Ghouse testified there was an ongoing reorganization at the time with the ultimate result that effective October 2015 the Renewal Strategies Office disbanded into two operating Units: the “Innovative Learning Unit” and the “Organizational Health and Effectiveness Unit”, with Ms. Ghouse successfully completing to become the Manager of the Innovative Learning Unit.

10Part of Ms. Ghouse’s responsibilities in August and September of 2015 was to act as “hiring manager” for vacancies and to oversee the “on-boarding” of new employees, which she described as the process of taking the new employee “through a structured program to let them be effective in their role immediately”. Ms. Ghouse confirmed that she first met the Complainant in mid-August 2015 for what Ms. Ghouse called “an informational chat”. Ms. Ghouse testified that in the course of their discussion she explained the “multiple changes” as a result of the imminent reorganization and the need for someone who would be able to adapt to the expected “culture of change”, which the Complainant expressed an ability and willingness to assume. Ms. Ghouse denies they ever discussed or agreed that if offered a position the Complainant would be paid at the lower end of the Level 5 salary band, particularly given that Ms. Ghouse was recruiting for Level 3, 4 and 6 jobs and had already filled the Level 3 and 6 vacancies, leaving only a Level 4 position available. Moreover, Ms. Ghouse denied she ever reviewed the salary bands in the collective agreement with the Complainant or discussed the possibility of a Team Lead position, pointing out that someone had already been assigned to that role before she met with the Complainant.

11In a subsequent telephone discussion on August 28, 2015 the Complainant told Ms. Ghouse that the Complainant “had a potential position” with another organization in the private sector. In her testimony the Complainant identified that prospect as a “project manager” in “digital management” for which she had requested a minimum annual salary of $72,000, although she also clarified that she didn’t have an actual job offer at the time. As it turned out she didn’t pursue that prospect because the Complainant was verbally offered a job by Ms. Ghouse in their August 28 telephone conversation. Ms. Ghouse, who was scheduled to leave on vacation immediately afterwards, accordingly sent the following e-mail to the Complainant on Friday, August 28, 2015 at 9:55 p.m. under the caption: “Contract starting Sep 10 – J. Robins”:

Jaimie,

To confirm our conversation:

-you will join the Renewal Strategies Office team within MCYS/MCSS on Sep 10

-the role will be at a Level 4 AMAPCEO for a duration of 5 months and 29 days

-the offer letter will be provided to you after my return from vacation (Aug 31 to Sep 8), on or before Sep 10.

If you would like to start later than Sep 10, please inform me.

If you have any questions while I am away, Carla (copied in this email) will be able to assist you.

I look forward to working with you soon.

Vajitha

12The reference to “Carla” in the e-mail was to Ms. Carla Herrera, the “Executive Advisor” to the Director of the Branch, who was identified as Ms. Michelle Gittens. The Complainant responded to Ms. Ghouse by e-mail dated August 31, 2015 at 10:48 a.m. (that she also copied to Carla Herrera) as follows:

Good morning Vajitha,

I’m delighted to join your team effective September 10, 2015.

Please let me know details you may need from me for on-boarding and when you would like to arrive.

I hope you have a wonderful vacation.

Best wishes,

Jaimie Robins

13The Complainant testified she accepted the offer notwithstanding it was at a Level 4 wage rate because the salary range overlapped with Level 5 wages that she requested in her August 14 discussion with Ms. Ghouse and she “had no indication that the offer would be less than the verbal offer [that Ms. Ghouse] had suggested”. Nevertheless, the Complainant did not mention in her evidence that any specific wage was agreed upon between them, aside from Ms. Ghouse’s commitment to “do the best” she could for the Complainant. Also, to this point, there was no evidence from the Complainant to suggest that a specific job or job title had been agreed upon at the time she accepted the offer, aside from her earlier informational review with Ms. Ghouse of a number of available vacancies and a general discussion of their respective roles.

14Ms. Ghouse, however, describes matters differently. She confirmed a telephone conversation with the Complainant on August 28, testifying that she “explained the title” of the position to her and that the salary was in the Level 4 salary band. Consistent with the Complainant’s testimony, it also appears that no specific salary amount was mentioned (aside from the fact that it would be in the Level 4 range). At the conclusion of their conversation the Complainant confirmed that she would be able to start work on September 10, 2015.

(b) The First Contract

15The Complainant reported for work at 9:00 a.m. on Thursday, September 10, 2015, which was also the first day back from vacation for Ms. Ghouse who was understandably very busy that day. According to the Complainant, she and another contract employee who was also starting, named “Ioana”, were introduced to “Andrew” (whose surnames I have deliberately omitted as unnecessary to this narrative). Andrew was identified as the “Acting Team Lead” which was immediately upsetting to the Complainant as that was the position she thought she would receive arising out of her August 14 conversation with Ms. Ghouse. The Complainant testified she spent the morning at “a meet and greet with staff” in the absence of Ms. Ghouse. According to the Complainant, it wasn’t until later in the afternoon that the Complainant and Ioana were ushered together into Ms. Ghouse’s office by Ms. Ghouse, where their “packages” were placed in front of them that the Grievor testified contained “documents”. After asking both the Complainant and Ioana to read and sign their contracts, the Complainant testified that Ms. Ghouse left them alone (together) to attend other matters. The Complainant testified she was uncomfortable reviewing her contract in the presence of another employee, and so didn’t raise any issues about her contract with Ms. Ghouse at the time.

16It is noteworthy that the Complainant specifically used the word, “documents” in her evidence-in-chief (which she repeated several times during her testimony), instead of a single document in describing the contents of her “package”. When asked in cross-examination what those specific documents were, she testified there was only one document which was her fixed term contract dated September 10, 2015 in letter format. When further asked why she referred to this single letter as “documents” in plural, the Complainant explained it was because it had “more than one page”.

17Ms. Ghouse’s testimony concerning their initial meeting was markedly different. Ms. Ghouse denied that she met with both the Complainant and Ioana together to go over their employment contracts. Rather, after welcoming both the Complainant and Ioana and telling them she would be busy in other meetings throughout the morning, Ms. Ghouse’s evidence was that she subsequently met individually with the Complainant and Ioana later that day (which she believes was in the early afternoon) to go over each employee’s employment contract separately in Ms. Ghouse’s private office where other employees could not overhear their conversations. In accordance with her usual on-boarding practice, Ms. Ghouse testified that her administrative assistant, Ms. Caroline Efueye, had prepared an on-boarding package containing three documents for the meeting: (a) a letter dated September 10, 2015 setting out the terms of the contract; (b) another letter dated September 10, 2015 giving formal notice to the Complainant of the termination of her employment at the end of the contract that was said to comply with ESA obligations; and (c) a document entitled, “WIN Employee Action Request” that was referred to as “WEAR”, which is an administrative form containing contact and other information about the employee required for payroll purposes. Also, it is not disputed that the general practice in the OPS for employees hired under fixed term contracts is to provide notice of termination at the commencement of the contract in order to satisfy the extended notice obligations under the ESA (where relatively large numbers of employees are typically terminated during the same four-week timeframe). According to Ms. Ghouse, in the privacy of her office she ‘walked the Complainant through’ all three documents. Afterwards, Ms. Ghouse testified that she handed the entire package to the Complainant, telling her that when she was done reading the documents and had signed her contract to give them to Ms. Efueye who would scan the offer letter and notice of termination into the Branch’s computer system, returning the originals to her. Ms. Ghouse claimed she then accompanied the Complainant to Ms. Efueye’s cubicle (which was in an open area outside of Ms. Ghouse’s office) leaving them to complete the process.

18The letter contract was signed by Ms. Ghouse and stated in the first sentence: “I am pleased to confirm my verbal offer of employment for the position of Learning and Development Coordinator” and it stipulated the “starting salary” of “$68,000.00 per annum.” It noted that the position was within the AMAPCEO bargaining unit and requested that the Complainant, “sign below to indicate that you accept this offer of employment”. It also stated that Ms. Ghouse was “available to answer any of your questions. Feel free to give me a call.” Then under the words, “I have read, understood and accepted the terms and conditions of employment as outlined above” was a space for the Complainant’s signature, which she signed on September 10, 2015. For purposes of certainty, the relevant portions of this document are reproduced below:

September 10, 2015

Re: Fixed Term Contract – Learning & Development Coordinator

Dear Jaimie:

I am pleased to confirm my verbal offer of employment for the position of Learning and Development coordinator and to welcome you to the Ontario Public Service (OPS).

This position is part of the Business Planning and Corporate Services Branch in the Ministry of Community and Social Services, and is located on the 30th floor at 2 Bloor Street West in Toronto.

As we discussed, your start date is September 10, 2015 at 9:00 a.m. On your first day, please see me when you arrive at work. As part of your orientation, within the first week, we will go over your responsibilities and hours of work, and I will also provide you other information about your position and our branch.

Your position:

You have been hired as a fixed-term employee on a contract basis in the OPS. The duration of your contract will be from September 10, 2015 to March 10, 2016. During this time you will be provided the support you need to be successful in your new job. Part of this support is performance and learning plans. Every employee in the OPS must have a performance plan that establishes an employee’s responsibilities and commitments, and also identifies learning and development needs. I will work with you to develop a plan that best meets your needs.

Your contract is full-time at 36.25 hours per week and your salary is equivalent to the level of 4A002-Human Resources04 in the OPS.

Your starting salary will be $68,000.00 per annum.

Your position is represented by the Association of Management, Administrative and Professional Crown Employees of Ontario (AMAPCEO). As an AMAPCEO member, you are required to pay association dues, which will be automatically deducted from your pay cheque. The AMAPCEO headquarters is located at…

As a fixed-term AMAPCEO-represented employee in the OPS, you are eligible for the following:

The Employer may terminate your contract without cause at any time with two weeks’ notice or pay in lieu thereof pursuant to the collective agreement, or with the notice or pay in lieu thereof required by the Employment Standards Act, 2000, whichever is greater.

I am available to answer any of your questions. Feel free to give me a call.

Please sign below to indicate that you accept this offer of employment.

I look forward to working with you.

Yours truly,

“Vajitha”

Vajitha Ghouse

Manager, Renewal Strategies Office

I have read, understood and accepted the terms and conditions of employment as outlined above.

“Jaimie Robins” “September 10/2015”

Jaimie Robins Date

19The Complainant testified she was “initially shocked” when she read the offer because she felt “it was out of line with what (the Complainant and Ms. Ghouse) had discussed in August” and in fact, “It was not what we discussed”, according to the Complainant. The Complainant’s evidence was that having originally asked to be a Team Lead she understood from her earlier discussions with Ms. Ghouse that the Complainant would receive at least a “senior role” but was instead offered a coordinator’s job that in the Complainant’s view was inconsistent with their verbal agreement where the Complainant asserted they had both been “very clear” that the contract would be “in line with (the Complainant’s) skills and abilities and in line with the private sector”. The Complainant nevertheless signed the document under the space acknowledging her acceptance and didn’t ask Ms. Ghouse (who she said was not there at the time) any questions about it because she was “happy with the salary as long as I got that with pay and benefits – and I felt that an offer was better than nothing.” The Complainant later clarified that Ms. Ghouse came back to the office at about 4:00 p.m. that day, but the two did not discuss the letter.

20Ms. Caroline Efueye substantially corroborated Ms. Ghouse’s evidence. By the time of her testimony Ms. Efueye had accepted a promotion in August of 2016 to work as a tax auditor for the Minister of Finance out of offices located in Oshawa, thus having no involvement with Ms. Ghouse. She testified that previously, beginning in May of 2015, she was responsible for all of the administrative work of the Business Planning and Corporate Services Branch related to the procurement, interviewing and hiring of staff, in addition to certain human resources and financial duties. It was Ms. Efueye’s job to prepare the on-boarding documents after being advised by the manager that the Branch was going to hire a candidate for a position, which Ms. Efueye had done many times before and thus testified that she followed her usual practice in preparing what she called “an on-boarding package” for the Complainant.

21After being advised by Ms. Ghouse that the Branch would be hiring the Complainant, Ms. Efueye noted Ms. Ghouse “wanted [the Complainant] to have the job and she wanted to keep her – she wanted to give the increase”. Ms. Efueye testified she accordingly prepared the offer letter without checking with Human Resources to confirm that the salary level was acceptable. She also prepared the 16 weeks’ notice of termination letter and the WEAR form, placing these three documents in a file that she gave to Ms. Ghouse on September 10, 2015. Later that day, her evidence is that she saw Ms. Ghouse escort the Complainant (who was alone) into Ms. Ghouse’s office, which she could see from her desk and that they shut the door. Thereafter, the Complainant and Ms. Ghouse came out of the office and the Complainant handed the file to Ms. Efueye. Ms. Efueye testified that she then made a copy of the signed offer letter and the 16 week notice letter, returning the originals to the Complainant. She did not provide the Complainant with a copy of the WEAR form, which was forwarded to Ontario Shared Services (“OSS”) that is responsible for entering new hires on the payroll system and to enroll them in the appropriate benefit programs based on the information on that form. She maintained, steadfastly in the face of cross-examination, that she had an independent recollection of following her usual on-boarding practice with the Complainant that day, even to the point of remembering what the Complainant was wearing.

(c) The Second Contract

22The next day, Friday, September 11, 2015, the Grievor testified she was at her work location, which was a cubicle in an open office setting, when Ms. Ghouse told her in a way that other people could hear that her employment contract “would not go ahead as it had been laid out”. According to the Complainant, Ms. Ghouse said that because the Complainant had already received salary increases in her previous positions from the Ministry of Education and Treasury Board Secretariat (which had been substantially continuous from March 17, 2014 to July 31, 2015), Ms. Ghouse had to “rescind” the contract that the Complainant signed the day before. Consequently the Complainant charged that Ms. Ghouse “ripped it up” in her presence (again in an open environment where other employees could see) “and threw them in the garbage less than 10 feet from my desk”.

23The Complainant testified that on the next working day, which was Monday, September 14, 2015, she found a new letter contract on her desk (which she presumed had been left there by Ms. Ghouse), that was the same contract she had previously signed except for reducing her “starting salary” to “$63,482.00 per annum.” The Complainant claimed there was no explanation for the reduction in her salary, but rather the second contract was simply left on the Complainant’s desk with a note “to review and sign”, which the Complainant did sign on September 14, 2015, even though it was dated September 10, 2015. The Complainant maintained in her testimony-in-chief and cross-examination that no other documents were left on her desk along with the contract on either this occasion or the earlier September 10, 2015.

24The Complainant explained she signed the second contract because she had no other offers pending and didn’t want to “rock the boat” so early in her relationship with Ms. Ghouse; particularly where the Complainant was hopeful that her fixed term contract might be extended to a permanent appointment in the OPS which was her goal. The Complainant also testified she was “in a very difficult position” because she alleged she had been “harassed” in her previous contract positions at the OPS and didn’t want to have the reputation of a person who kept jumping from job to job which she perceived as compromising her future employment prospects. In cross-examination the Complainant stated that she “believed” she returned the amended signed contract to Ms. Efueye.

25When asked if the other contract employee starting at the same time, Ioana, also received a “second contract” the Complainant initially answered, “I believe she did” and then affirmatively asserted in her evidence-in-chief that, “Ioana was offered a first contact and both contracts were ripped up and other contracts offered to us on the 14th.” Ioana was not called as a witness, even though it was confirmed that she continued to be employed in the OPS as of the instant arbitration hearings.

26Much of the foregoing is denied by Ms. Ghouse. She testified that sometime in the early afternoon of September 11 she was advised that the WEAR form submitted to OSS on behalf of the Complainant to enter her onto the payroll system was rejected because “the salary was too high”. Under the prevailing administrative guidelines an employee who moves from one position in the OPS to another is normally only permitted a maximum 3% salary increase, which was the limit of Ms. Ghouse’s authority in making salary offers. Given that the Complainant was earning an annualized salary of $60,400 in her contract position that ended on July 31, 2015, the $68,000 salary stipulated in her new employment contract exceeded that limit (being just over 13% above her previous rate).

27Ms. Ghouse testified she didn’t realize that the Complainant had an earlier contract position in the OPS, but rather had assumed that the Complainant “was an external employee coming in and hence I could offer a higher salary”. Ironically (and understandably frustrating to the Complainant), had the Complainant been new to the OPS an offer of $68,000 for her position was well within Ms. Ghouse’s authority to offer and would have been readily accepted by OSS. But under OPS guidelines Ms. Ghouse could only authorize a 3% salary increase from the Complainant’s previous contract position, which Ms. Ghouse acknowledged was her mistake and for which she said she was “quite upset” with herself. Ms. Ghouse discussed the error with her Director, Ms. Gittens, who had the authority to increase the salary by a total 5% from the Complainant’s earlier contract role. After considering the matter the Director approved a 5% increase to $63,482. In order to pay the Complainant the $68,000 annualized salary that she was originally promised, the approval of the Deputy Minister (“DM”) would be required, but the Director did not submit the matter to the DM for consideration and no explanation was provided for that.

28Thus, according to Ms. Ghouse, and contrary to the Complainant’s evidence on point, in the afternoon of September 11 Ms. Ghouse had a private discussion with the Complainant in Ms. Ghouse’s office, explaining her mistake and apologizing for what she characterized as “the hiring manager’s administrative error”. Ms. Ghouse testified that after informing the Complainant that the Director had authorized a 5% salary increase and then asking the Complainant whether she was still interested in the job, the Complainant said “she would love to stay and was OK with the salary”. After receiving this assurance Ms. Ghouse testified she told the Complainant that an amended offer letter would be provided to her the following Monday for her signature. No change was required for the 16 week notice letter, which was not affected by the amended contract letter. Ms. Ghouse denied any suggestion that she “ripped up” the first contract letter as later claimed by the Complainant. Rather, when the second contract was prepared, Ms. Ghouse testified she gave the Complainant the entire package again, consisting of the second contract, another 16 week notice letter and an amended WEAR form (which this time was signed by the Director to authorize the 5% increase), that the Complainant subsequently signed, returning the entire package to Ms. Efueye for further processing. Ms. Ghouse explained the reason the second contract was dated September 10 instead of September 14, 2015 when it was actually signed, was because the Complainant’s first day on the new contract job was September 10, 2015.

29Ms. Efueye also testified. Her recollection differed somewhat as to the timing of events attested to by Ms. Ghouse, which she later clarified. According to Ms. Efueye, after scanning and forwarding the original WEAR form to the OSS, she received a call from someone in OSS “the next day” who told her the WEAR form would not go through because the amount for salary was higher than allowed. Ms. Efueye believed this was her fault for not properly checking the appropriate amount (since she knew they were only authorized to offer 3% salary increases), and thus she testified she called the Complainant and said: “I am so sorry I made a mistake on your offer letter and I need to get it back from you. Would you please bring back the letters I gave you”, which the Complainant said, “OK” in response. Consequently when the Complainant returned with the original offer and the 16 week notice letter, Ms. Efueye’s testified she gave the 16 week notice letter back to the Complainant, but then “tore up” the first contract in front of the Complainant, explaining that a mistake had been made “in putting too much salary into the letter”, for which Ms. Efueye apologized and told her that the manager would prepare a new contract and explain what had happened. Ms. Efueye commented that in hindsight she realized she should not have torn up the original letter, but her thinking at the time was that the original letter was of no use because it was written in error and that the Complainant would receive a replacement. She again apologized directly to the Complainant at the arbitration hearing for that conduct.

30Ms. Efueye testified she was subsequently instructed to prepare a new offer letter to reflect a 5% wage increase and a new WEAR form showing approval for that increase by the Director, which she gave to Ms. Ghouse. She also confirmed from her knowledge of having prepared all of the on-boarding documents for new employees that no-one who was new to the Branch received more than a 3% salary increase from their previous position other than the Complainant. Ms. Efueye then remembered seeing Ms. Ghouse accompany the Complainant into Ms. Ghouse’s office with the new on-boarding package consisting of the amended offer letter, another 16 week notice and a new WEAR form prepared by Ms. Efueye, after which the Complainant presented Ms. Efueye with the signed second contract that Ms. Efueye scanned into the computer system, returning the original to her. Ms. Efueye testified that she did not return the original 16 week notice letter because it was the same letter that had already been given to the Complainant after she signed the first contract letter.

31When asked to clarify whether these events occurred on the Friday or Monday after September 10, 2015, Ms. Efueye testified: “The next day I prepared the new offer letter I gave it to Ms. Ghouse. I am not sure if it was that day, the Friday, or the Monday, but I do know she (the Complainant) brought back the folder to me because I needed to send back the WEAR form so they could pay her”.

(d) The Notice of Termination Letter

32Things did not go well in the subsequent relationship between the Complainant and Ms. Ghouse. The Complainant felt that her workplace had become “poisoned” within the first couple of months of starting as a result of alleged “harassment” and “bullying” by Ms. Ghouse and other staff members, which led the Complainant to initiate a complaint under the Employer’s “Workplace Discrimination and Harassment Prevention Policy” (“WDHP”) in October or December 2015. This is an internal process for investigating such complaints outside of the collective agreement.

33Although the WDHP complaint was not filed in the instant arbitration proceedings, one element of the complaint that was said to support an alleged pattern of harassment towards the Complainant was the change in her salary from what the Complainant was initially offered and agreed to on September 10, 2015. Since the improper salary issue was raised as part of her WDHP, the Complainant felt she should await the outcome of that process before pursuing the matter as a formal dispute under the collective agreement. The Complainant also claimed that her portfolio of responsibilities was “being redistributed” to others causing her embarrassment and reputational harm; some of her colleagues had gone through the Complainant’s personal belongings without permission; and the Complainant had been subjected to “disparaging comments” by a number of her coworkers. As a result, the Complainant testified her mental health deteriorated and her overall health and wellbeing became fragile, causing her to lose sleep and gain weight.

34The Complainant’s job of Learning and Development Coordinator was posted as a permanent position in December 2015 which the Complainant did not apply for as she had decided to leave at the end of her fixed term contract because of the alleged poisoned environment. A one-hour meeting was held at or about the end of January 2016 to receive the findings of the investigator assigned to inquire into the WDHP complaint, which included a representative from the Association identified as Mr. Dominic Fragale along with the Complainant and Ms. Ghouse where the circumstances of the change in the terms of the Complainant’s initial contract letter came up. Mr. Fragale was reported to have expressed the view that because the Complainant signed the second contract letter on September 14, 2015, there was “nothing that the Association could do” about it. No evidence concerning the ultimate outcome of the WHDP complaint was presented to me, although it is apparent there was no effect on the Complainant’s salary as set out in her second contract.

35Thereafter, with her fixed term employment contract coming to an end in a matter of weeks, the Complainant requested a copy of her complete employment file from OSS which was her right under the collective agreement. When she received the file on or about February 23, 2016, the Complainant noted a letter that was addressed to her dated September 10, 2015 and signed by Ms. Ghouse purporting to be 16 weeks’ notice of termination in accordance with the ESA, which the Complainant claimed she had never seen before. That letter is reproduced in relevant part below:

Dear Jaimie:

This letter will serve as formal notification that your contract as a Learning and Development Coordinator with the Ministry of Community and Social Services in the renewal Strategies Office, will not be extended past the contracted end date of March 10, 2016.

This letter constitutes a 16 week working notice and includes a 7 weeks of pay-in-lieu of working notice for the balance of the required sixteen (16) week notice period. This pay-in-lieu will be issued to you as a lump sum payment through Ontario Shared Services to provide you with a sixteen (16) week working notice of termination.

The sixteen (16) week working notice period will commence as of November 23, 2015 and terminate on March 10, 2016.

This notice of termination is in accordance with Section 58(1) of the Employment Standards Act, 2000, S.O. 2000, c. 41 and section 3(1) of Ontario Regulation 288/01 as amended, Termination and Severance of Employment.

It is important to note that during the complete notice period (16 weeks), you are eligible to apply for restricted job postings in the Ontario Public Service (OPS). Should you resign during the notice period you will not be entitled to any pay in lieu of notice for the period after the resignation.

Yours contribution to the Business Planning & Corporate Services Division, specifically with the Renewal Strategies Office, is most valuable and very much appreciated. I would like to take this opportunity to express our gratitude to you for your services and with you well in your future endeavours.

36The Complainant consequently exchanged e-mails with the new Director of the Corporate Services Branch, Ms. Maxine Daley, dated February 23, 2016, complaining that the Complainant wasn’t provided 16 weeks’ notice of termination and demanding compensation for the additional 14 weeks of statutory notice she should have received (calculated from the date she claimed she first saw the letter). Ms. Daley responded that the records of the Branch indicated that Ms. Ghouse sent an e-mail to Ms. Efueye dated September 14, 2015 that was copied to Ms. Herrera under the title, “Offer letters”. That e-mail states: “Ioana and Jaimie have signed their offer letter and read the 16-week notice.” When asked by the Complainant to provide a “date-stamped” version of the e-mail, Ms. Daley responded that: “The closest we have to a time-stamped copy is the date the document was entered into our confidential shared drive. As noted in Carla (Herrera’s) e-mail below, the scanned document was entered into shared drive on September 15, 2015.” Both Ms. Ghouse and Ms. Efueye testified that copies of the 16 week notice letter were provided to the Complainant with the first contract letter on September 10, 2015 and the second contract letter on September 14, 2015 as part of the on-boarding packages.

37The Complainant’s fixed term contract ended on March 10, 2016 without the Employer providing any additional compensation for her claim of insufficient notice of termination under the ESA, which is the same day she filed her formal dispute under the collective agreement in the present case.

IV. The Admissibility of “Tweets”

38A “tweet” is defined in Google’s on-line dictionary as referring to: (1) “the chirp of a small young bird”, or (2) “a posting made on the social media website Twitter”. In social media the act of writing a tweet is called “tweeting” or “twittering”. At the time of these proceedings, tweets could be up to 140 characters long, including spaces, and can attach URLs (the address of a World Wide Web page) and hashtags (which is a type of metadata tag making it possible for others to easily find messages with a specific theme or content).

39An objection was raised by the Association to the admissibility of 10 tweets admittedly written by the Complainant (or “retweeted”) through her social media account between March 8, 2016 and July 23, 2016 that the Employer sought to introduce during the Complainant’s cross-examination. These communications that I looked at in order to inform myself of their contents before ruling on admissibility, contain alleged derogatory comments about people who were not referred to in any of the evidence before me, in the context of events that were either unspecified or opaque to me, but certainly having no relationship whatsoever to the evidence that I had heard to that point. They were also written substantially outside of the period of the Complainant’s employment as a Learning and Development Coordinator.

40When I asked for an explanation of the relevance of these documents, Employer counsel asserted “they are relevant to the issue of entire credibility – to allow you to determine whether she is credible or not”. Counsel also claimed that the people named in the tweets were former associates or managers of the Complainant (and in one case a Deputy Minister) during previous fixed term contracts with the OPS, written after the Complainant left the contract position at issue. The Employer characterized the comments in the tweets as “scandalous” which fit into the Employer’s theory of the instant case that having become disgruntled with her employment the Complainant was the sort of person to make spurious claims in an effort to “get back” at those she perceived to have wronged her. The Employer submitted it was entitled to adduce these selected tweets (which presumably were a small sampling of the total number of tweets she might have generated in that timeframe) to demonstrate a pattern of conduct of the Complainant that was said to be admissible as “similar fact evidence” and under the “collateral evidence rule”.

41In support of that position the Employer referred to an interim ruling that I issued in Re City of Kitchener and Kitchener Professional Fire Fighters Association (2006), 2006 CanLII 28908 (ON LA), 154 L.A.C. (4th) 228 (Luborsky), which concerned a claim of unjust dismissal by a male Fire Department Captain who was alleged to have sexually harassed a younger female firefighter complainant. An objection was raised to the following question posed by the Association’s counsel in cross-examining the complainant: “I am going to suggest to you that sometimes you tell lies to people in authority like the police?” In clarifying the relevance of that question, the Firefighters’ Association asserted it was admissible under the general principles governing “similar fact evidence” related to an earlier domestic dispute involving the female firefighter, while the City argued that, at most, the question might be admitted under the “collateral evidence rule” which is explained at para. 7 therein as follows:

…That rule is described in Gorsky, Usprich and Brandt’s Evidence and Procedure in Canadian Labour Arbitration, Looseleaf updated to 2004 – Rel. 3, (Toronto, Ont.: Thomson Carswell) at p. 10-43 as follows:

The rule provides that a witness’s answer to a question that does not relate to the facts in issue (i.e. something that is merely “collateral” to the issues) is final. The cross-examiner cannot call evidence to contradict it. The credibility of a witness is considered to be a collateral matter. This is purely a rule of expediency designed to prevent the case bogging down as the hearing wanders off into side alleys to explore matters that are not relevant to the issues. The test as to whether a matter is collateral is whether evidence to prove it would be relevant even if the witness had not been asked about it; in other words, if the only value of the evidence is to contradict the witness’s denial, it is collateral. Although the problem does not arise often in reported awards, arbitrators have recognized the wisdom of the rule.

[References to footnotes omitted]

42While I decided at para. 22 in that case to uphold the City’s objection to the Association’s attempt to introduce evidence of a prior domestic dispute involving the complainant under similar fact principles, I did so subject to the following qualifications about collateral fact evidence at paras. 32 – 35:

¶ 32. That does not suggest that I am limiting the ability of the Association to cross-examine the Complainant on relevant matters going to her credibility that although collateral, may be subject to the statutory exceptions to the collateral evidence rule permitting the admission of rebuttal evidence, or to examine the Complainant on collateral matters subject to the collateral evidence rule itself. In Re Greater Victoria Drug Rehabilitation Society, supra, Arbitrator Hope noted that even where the collateral evidence rule restricted the admission of rebuttal evidence, the demeanor and responsiveness of the witness to questions on the collateral matters could be taken into account as a factor in assessing credibility (at pp. 259 – 260). In that case, the demeanor and responsiveness of the grievor on a collateral matter was properly taken into account as undermining the grievor’s credibility.

¶ 33. Arbitrator Weatherill came to a similar conclusion in Re Zehrs Markets, supra, where he offered the following guidance in considering the cross-examination on collateral issues relevant to the credibility of a witness, at p. 125:

Wide scope is to be given in cross-examination, particularly where issues of credibility are involved, as they are in this case. This is not to say that a denial (on cross-examination) of previous wrongdoing, not in itself in issue, thus puts in issue the veracity of the denial and supports the introduction of evidence (which could not then be rebutted, except on cross-examination), on issues ruled not to be relevant to the proceedings. Certainly, counsel may throw doubt upon the credibility of a witness by alluding to an entirely collateral matter: see Williston and Rolls, The Conduct of An Action, at p. 121….

¶34. The authorities relied upon by the parties indicated that one of the exceptions to the collateral evidence rule permits the introduction of rebuttal evidence to prove a witness’s prior criminal conviction denied in cross-examination. However, I was presented with no authority restricting the cross-examination of a witness only to his or her criminal record where the cross-examiner seeks to test credibility on the details of a collateral event that resulted in criminal charges. Rather, the viewpoints of Arbitrators Hope and Weatherill, cited above, suggest otherwise. I accordingly reject the City’s submission that cross-examination of the Complainant with respect to her domestic dispute is limited only to the question of whether she was convicted of a criminal offence as a result of that incident. I conclude that it is open for the Association to cross-examine on a broad range of collateral issues in an effort to discredit the Complainant’s testimony, subject to the collateral evidence rule, relevance and my overriding authority to control the arbitration process in furtherance of a fair hearing. It is open to both parties to make submissions respecting the answers given on collateral matters that may properly be taken into account in assessing the evidence in its entirety.

¶ 35. The hearing will continue with the cross-examination of the Complainant in accordance with the foregoing ruling and direction to the parties.

43The Employer accordingly referred to the foregoing description of the collateral evidence rule in urging the admission of the Complainant’s tweets in accordance with those principles.

44The Association in the instant case was opposed to the admissibility of the tweets even as collateral facts subject to the collateral evidence rule. It submitted that the discrete issues of whether the Complainant’s salary had been improperly reduced and if she had received her entitlement to notice under the ESA had nothing to do with any claimed derogatory comments that she might have made about anyone else in different contexts. It warned that if such evidence is admitted, the Complainant would be obliged to explain the circumstances of each tweet (which could not be challenged under the collateral evidence rule), that would “force us down a side-road” having absolutely no bearing on the issues before me, while being unfairly prejudicial.

45I agreed with the Association. As noted in the excerpt quoted from Gorsky, Usprich and Brandt’s text on Evidence and Procedure in Canadian Labour Arbitration referred to in the City of Kitchener case, supra, the only value of collateral evidence “is to contradict the witness’s denial”, in an attempt to undermine credibility if the denial is shown to be untrue (as in the classic example of the witness who lied about a past conviction or transgression that is readily contradicted by some authoritative record). However, the problem with tweets in general is that, being limited to 140 characters (at the time) they tend to be so cryptic, full of jargon and often non-specific (or in response to an earlier unseen tweet by someone else or a “retweet” with references to hashtags or URLs of uncertain content), that it is difficult to determine on their face exactly what they are trying to say. While a word standing on its own in a tweet might look “scandalous” or “derogatory” about a named individual in isolation, such words lend themselves to a necessary examination of context, forcing the inquiry down a potentially time-consuming path of interpretation and nuance that is not always clear, but certainly of very limited impact in the decision-making process. If the purpose of admitting such evidence is to show that the Complainant used bad words to express her displeasure about people in her personal or work life (or to comment about events of the day), she is doing nothing more than using electronic media in a way that many people do, which is not to endorse rude or bad behaviour on-line; but bad words don’t necessarily denote bad people or that they are inherent “liars” or have the tendency to go after people they don’t like, as suggested by the Employer.

46Rather, the reality is that people use social media in a variety of ways and for purposes that includes venting, trying to be funny or provocative – in both civil and uncivil tones; which seems to have become more the norm in today’s society. For every one tweet that might paint the writer who has used objectively rude or disrespectful language in a negative light, there may be a dozen others trending in the opposite direction; all of which may become fairly admissible and subject to differing interpretations once the door to this type of evidence is opened for the purpose of challenging the general credibility of a witness, with no direct connection to the matters in dispute and thus of little if any weight in the adjudication.

47As a consequence, I conclude that when it comes to this kind of electronic discourse through Twitter, unless the party proffering the specific tweet communication can satisfy a threshold showing of some semblance of relevance or arguable relevance to a matter in issue between the parties (as opposed to amorphous credibility allegations), it should not be admitted as its prejudicial impact and potential time expenditure outweighs any probative worth. Even if such evidence is admissible in a court of law, it is appropriate to exercise my discretion to prohibit its admission in the employment context where employees commonly use such media to recount the events of their (sometimes frustrating and sometimes exhilarating) workday with their “followers” or “friends” under section 48(12) (f) of the Labour Relations Act, 1995, supra (“LRA”), as detracting too much and unnecessarily from the fair and focused airing of the real issues in dispute.

48I therefore found that the tweets proffered by the Employer had no relevance to anything related to the dispute between the parties and consequently upheld the Association’s objection to the admissibility of the Complainant’s tweets, issuing the following oral ruling:

I retrain jurisdiction to add to or amend my reasons herein. I have reviewed the tweets – and these have nothing to do with the circumstances before me. There is no reference to any of the individuals that I have heard about in these proceedings to date or the circumstances at all relevant to the matters in issue before me. In the City of Kitchener case I noted at paragraph 34 that “it is open for the Association to cross-examine on a broad range of collateral issues in an effort to discredit the Complainant’s testimony, subject to the collateral evidence rule, relevance and my overriding authority to control the arbitration process in furtherance of a fair hearing” (emphasis added). There is nothing in the proposed evidence that appears even remotely relevant or in furtherance of a fair hearing – other than to lend some support to the general claim that if an employee engages in arguably disreputable conduct in one medium (i.e. through social media) that she is to be considered disreputable on all of her dealings generally – as a person who has the character of being disreputable or dishonest, which is what the case law directs me to reject. Even if that was not the case, the use of tweeting now has grown to such an extent, and people participate in it to a large degree without much thought, that I ought to be very circumspect in accepting any of it. At the very least, I ought to require the party proffering such evidence to meet a threshold of arguable relevance to any potential matter before me, which I find has not been met in this case. Accordingly, I allow the Association’s objection to the admissibility of this evidence.

V. The Parties’ Arguments

(a) The Association

49On behalf of the Association Ms. Doctor submitted the evidence supports the conclusion that Ms. Ghouse promised the Complainant a “senior role” in the event she was offered employment commensurate with the Complainant’s experience and stated salary expectations at the “low end of Level 5” in the wage scale. While admittedly disappointed with the offer of a Coordinator’s position in the Level 4 salary range, it is submitted that a reasonable reading of the evidence is that the Complainant made the practical choice to accept the Level 4 job because the $68,000 salary offered in the September 10, 2015 hiring letter overlapped in salary with a Level 5 job and was sufficiently close to the Complainant’s pursuit of a $72,000 position in the private sector to entice her into accepting the Employer’s offer. Once offered in writing in the September 10, 2015 letter from Ms. Ghouse and accepted by the Complainant, also in writing, this constituted the starting salary that was within the Level 4 pay band of the collective agreement that was binding on both parties and perfectly compliant with the terms of the collective agreement. It was therefore submitted that the Employer’s action the next day to “rip up” the contract and reissue it at the lower rate of $63,482 (albeit also within Level 4) was a blatant “bait and switch” breach of contract that was not available to the Employer, even if it did make an honest mistake by granting a pay increase above Ms. Ghouse’s authority as a manager. Since article 19.1.2 of the collective agreement states that an employee receiving a promotion (which was the case here) shall receive an increase “of at least three percent (3%)”, it was not a violation of the collective agreement for the Employer to offer the Complainant more than a 3% wage increase from her previous OPS position. The Employer’s apparent refusal to refer the matter to the Deputy Minister who had the authority to grant the salary level offered to the Complainant was, in the Association’s submission, an example of the Employer “tying their own hands” on the matter, thereby violating its duty to administer their managerial rights under article 3 of the collective agreement, fairly and in good faith. The fact that the Complainant then signed the second contract letter on September 14, 2015 could not be taken as acquiescence to the Employer’s breach. Rather the Association submitted the second contract letter must be considered a nullity in law as completely unsupported by any fresh consideration. And more fundamentally, the Complainant was effectively trapped by the events; having forsaken her job search in the private sector after accepting the first contract offer, which could be traced back to her telephone discussion with Ms. Ghouse on August 28, 2015. If the Employer didn’t breach the collective agreement by its action, then at least the Employer was estopped from repudiating its agreement to pay the Complainant $68,000 in the circumstances where the Complainant might suffer reputational harm by quitting or being terminated by the Employer at that point (i.e. if she had refused to sign the new contract) having suspended her search for alternate employment to her detriment, according to the Association.

50On the question of whether the Employer provided the Complainant with sufficient notice of termination in compliance with O. Reg. 288/01 of the ESA, aside from the credibility issue the Association’s basic submission was that the Employer had the ultimate burden to prove that it gave the Complainant the required notice letter in order to succeed on this point. Thus where there was no “sign back” or written acknowledgement of receipt of the notice of termination that the Employer claimed it served on the Complainant at the same time she signed both of the offer letters on September 10 and 14, 2015, the Complainant was entitled to any benefit of doubt or equivalency in the evidence of the parties on the matter.

51Lastly, anticipating the Employer’s argument that the Complaint’s claim of breach of contract was barred as untimely under the dispute resolution procedure in article 15.3.1 of the collective agreement because it was filed more than 30 days after the “circumstances giving rise to the complaint”, the Association submitted that it was within my authority to extend time limits under section 48(16) of the LRA, for the late filing of the dispute because: (a) the Complainant’s understandable reluctance to “rock the boat” by filing a complaint so soon after beginning her employment was a reasonable excuse for the late filing; (b) the fact that the Complaint had already raised her objection to the salary change as part of her WDHP complaint that was ongoing until the end of January 2016; and (c) in any event, the Employer could point to no substantial prejudice by her delay. Even if there were insufficient grounds to extend time limits, it was submitted the breach was in the nature of a continuing violation of the collective agreement that was triggered each time the Complainant received a periodic payment at less than the $68,000 annualized rate in her original contract, and thus the Complainant was entitled to damages for that breach calculated from at least 30 days (that does not include weekends and holidays under the collective agreement) prior to March 10, 2016 which was the date the dispute was formally presented.

52The Association therefore requested that I grant the complaint, remitting the remedy back to the parties to calculate accordingly while remaining seized on the matter. It also referred to the following authorities in support: Re Becker Milk Company Ltd. and Teamsters Union, Local 647 (1978), 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217 (Burkett), Re Greater Niagara General Hospital and Ontario Nurses’ Association (1981), L.A.C. (3d) 1 (Schiff), OPSEU (Robbins) v. Ontario (Liquor Control Board of Ontario), 2015 CanLII 36165 (ON GSB)(Lynk), Weber v. Ontario Hydro, [1995] S.C.R. 929 (S.C.C.), Hobbs v. TDI Canada Ltd., 2004 CanLII 44783 (ON CA), Holland v. Hostopia.Com Inc., 2015 ONCA 762, Re WAPSO and Winnipeg (City)(Chester), 2017 CarswellMan 403 (Gibson) and OPSEU (Sutherland) v. Ontario (Ministry of Labour), 2008 CanLII 70535 (ON GSB) (Dissanayake).

(b) The Employer

53On behalf of the Employer, Mr. Lau emphasized the Employer’s timeliness objection to the alleged contractual breach aspect of the complaint. The Employer submitted that the alleged breach of contract crystallized when the Employer presented the Complainant with the second contract on September 14, 2015, and thus when the complaint wasn’t filed until the very end of the Complainant’s fixed term contract some six months later, it was well beyond the time limits for making such complaints under the collective agreement, depriving me of jurisdiction in this case. The Employer denied there was a reasonable excuse for this delay, particularly given the Complainant’s earlier filing of a WDHP in October or December of 2015, and her decision not to apply for the permanent posting of her position in December of 2015, which undermined all claims of not wanting to “rock the boat” at least by that point. Moreover, giving legitimacy to the argument that filing a complaint might “rock the boat” in order to disregard the time limits under the grievance procedure would in the Employer’s submission “make a mockery” of those time limit stipulations where any complaint filed by an employee could arguably fall within that kind of description.

54If the Employer failed on its timeliness objection, it asserted the Employer nevertheless had the right to change the first contract to correct an administrative error, which did not violate the collective agreement where the salary provided was still within the wage scale stipulated for a Level 4 job, and caused no prejudice to the Complainant where the error was corrected within a day of signing the original contact. Alternatively, the Complainant’s comments and actions at the time supported the conclusion that she accepted or acquiesced in the contractual change, particularly where she signed the second contract without objection but rather is claimed to have told Ms. Ghouse that she “would love to stay and was OK with the new salary”. In any event, the Employer argued that it was a sign of good faith for the Director to have exercised her discretion to ultimately approve a 5% salary increase for the Complainant, which was more than any other new Branch employee received. The Employer criticized the Association’s reliance on common law principles referred to in wrongful dismissal cases in advancing the submission that the second contact was void for the failure to provide fresh consideration to support a new contract. Such principles had no application where the Complainant’s employment was governed by the terms of a collective agreement which formed the consistent and only substratum of the parties’ contractual relationship, according to the Employer.

55As for the Complainant’s claim she didn’t see a copy of the 16 week termination notice required under the ESA until two weeks before the end of her fixed term contract, the Employer’s straightforward submission was that the Complainant was untruthful, consistent with the actions of a disgruntled individual as she was leaving her employment. I was consequently asked to accept the testimony of Ms. Ghouse as corroborated by Ms. Efueye, which the Employer argued was conclusive that the Complainant was provided written notice of termination twice: on September 10 and September 14, 2015 with each on-boarding package she received. The Employer therefore requested that I dismiss the Complainant’s dispute in its entirety, referring to the following authorities in support: Hicks v. Canada (Treasury Board), 1997 CarswellNat 3294 (Chodos), OPSEU (Smith et al) v. Ontario (Ministry of Community and Social Services), 2008 CanLII 32791 (ON GSB) (Gray), OPSEU (Fazakas et al) v. Ontario (Ministry of the Attorney General), GSB# 1992-2964 (ON GSB) (Petryshen) and OPSEU (Rondeau) v. Ontario (Ministry of the Solicitor General and Correctional Services), 2000 CanLII 20495 (ON GSB) (Leighton).

VI. Reasons for Decision

56The foregoing evidence and submissions raise the following questions: (1) Was the complaint untimely resulting in loss of jurisdiction or authority for at least the part of the dispute related to the alleged breach of contract that cannot be saved by the proper exercise of arbitral discretion to extend the time limits for filing the complaint? (2) If timely, did the Employer violate the collective agreement by reducing the annualized starting salary for the Complainant’s Level 4 position; and (3) In either event, is the Complainant entitled to an additional 14 weeks’ pay in lieu of statutory notice of termination for the Employer’s alleged breach of its obligations under the ESA? It is convenient to deal with each question in reverse order.

(a) The Statutory Notice Question

57I address this question first because the answer turns on a relatively straightforward evaluation of the evidence and credibility. On that evaluation I conclude that at least 16 weeks’ notice of termination mandated under O. Reg. 288/01 of the ESA was provided to the Complainant at the commencement of her last fixed term contract.

58It is clear that the onus lies with the Association to prove all of the elements of its complaint, including its allegation of insufficient notice of termination; however there is a shifting onus on that point. In the face of the Complainant’s denial that she received the required notice of termination, the onus shifts to the Employer to prove that it did provide the notice in a timely manner on a balance of probabilities standard. Discounting the testimony of the Complainant and Ms. Ghouse for the moment, who have partisan interests in the outcome of the dispute, I found Ms. Efueye’s evidence to be the most compelling and persuasive on the matter.

59While demeanor is not determinative in assessing the credibility or reliability of a witness (and may be dangerous to accept without critical assessment), Ms. Efueye’s presentation was seemingly candid, respectful to the Complainant and uncomplicated. As a mere functionary in the events of September 10, 11 and 14, 2015 with no decision-making authority, I accept her straightforward testimony that remained unshaken in cross-examination that she prepared two on-boarding packages in the morning of September 10, which consistent with her usual practice included 16 weeks’ notice of termination for each of the new contract employees starting work that day. She readily acknowledged her own “mistakes” in preparing a contract providing the Complainant more than a 3% increase from her previous contract position in the OPS that she knew was contrary to the Employer’s policy, and in tearing up the first contract in front of Complainant for which she offered an unsolicited apology to the Complainant during the arbitration hearing. Although Ms. Efueye was less clear on the precise timing of events related to the proffering of the second contract (i.e. whether on Friday, September 11 or Monday, September 14, 2015), it was no more so than one would expect without a specific record of those events some two years after the fact. However, on the substance of the events related to the contents of both of the on-boarding packages that included the termination letter providing the 16 weeks’ notice required by the ESA, and her direct observations of the Complainant’s comings and goings with Ms. Ghouse (into and out of the latter’s office), Ms. Efueye’s recollection was clear. More importantly, it not only corroborated the testimony of Ms. Ghouse on important factual points but was in harmony with all of the surrounding circumstances that seemed most likely on a balance of probabilities.

60In addition to being consistent with Ms. Ghouse’s testimony, Ms. Efueye’s receipt of the termination letter from the Complainant along with a copy of the signed first and second contracts, as well as the scanning of the contracts and termination letter into the Branch’s computer system, is corroborated by the independent e-mail from Ms. Ghouse to Ms. Efueye (with a copy to Ms. Carla Herrera) confirming that both the Complainant and Ioana had received their contracts and termination notices. On the uncontested records of the Employer these documents were entered into the Branch’s shared computer server on September 15, 2015. Neither Ms. Ghouse nor Ms. Efueye could have anticipated at the time that there would be any future controversy surrounding the Complainant’s receipt of the 16 week notice of termination.

61On the other side of this dispute, the Complainant’s repeated references in her testimony to the “documents” in her on-boarding package, which when questioned on cross-examination she rationalized as really intended to refer to a single document having several pages, seemed more consistent with a “slip-of-the-tongue” reflection of the truth than her evidence on the matter. Having signed previous fixed term contracts with the OPS for relatively recent assignments (which included a stint in a labour relations capacity), the Complainant would have reasonably been familiar with the practice of providing such ESA notification for employee’s on fixed terms at the time of hiring. Her claim of not receiving the notice is inconsistent with all of the surrounding events. Moreover, one would think that if the Complainant didn’t receive that notice letter the other contract employee, Ioana, starting at the same time probably would not have received one either (given Ms. Efueye’s evidence of preparing both on-boarding packages with the same types of documents). The Association’s failure to call Ioana as a witness to corroborate the Complainant’s allegations in this regard and in other controversial aspects of the Complainant’s claims of maltreatment by Ms. Ghouse in the introduction of the two new employees to the Branch, led me to draw an adverse inference concerning the Complainant’s assertions on these matters: See my discussion of the use of adverse inferences for resolving such evidentiary conflicts in Re Yellow Pages Group Co. and Unifor, Local 6006 (Debideen), 2017 CarswellOnt 12675, 132 C.L.A.S. 202, at para. 76.

62For the foregoing reasons, including a general dissatisfaction with the Complainant’s credibility as a whole that I will expound upon below, I conclude that the Complainant was provided with more than 16 weeks’ written notice of termination on both September 10 and 14, 2015 as required under O. Reg. 288/01 of the ESA and thus dismiss that aspect of the Association’s March 10, 2016 complaint.

(b) The Breach of Contract Question

63My reservations about the Complainant’s credibility taints a number of her allegations surrounding the Association’s claim of a breach of contract by the Employer when it replaced the first contract with the second contract. There is no dispute that the first contract signed by the Complainant on September 10, 2015 included the stipulation that payment would be at the annualized rate of $68,000, which the Employer changed the next day to $63,482 in the second contract signed by the Complainant on September 14, 2015.

64However, I cannot find sufficient support on the evidence for the Complainant’s associated claims that: (a) she and the other contract worker, Ioana, were ushered into Ms. Ghouse’s office together and asked to review their employment contracts at the same time, which is contrary to the evidence of Ms. Ghouse as corroborated by the testimony of Ms. Efueye; (b) Ms. Ghouse “ripped up” her first contract along with the contract issued to Ioana, throwing the Complainant’s first contract into a wastebasket some “10 feet” from the Complainant’s cubicle in an open area that other employees could see, which is contrary to the testimony of Ms. Ghouse and Ms. Efueye, the latter admitting she mistakenly “tore up” the first contract thinking it was no longer valid; and (c) that the Complainant was never provided with an explanation by Ms. Ghouse for the change in contracts having found the amended contract on her desk with a note from Ms. Ghouse to sign and return, which was contrary to the testimony of Ms. Ghouse as corroborated by the observations of Ms. Efueye of the Complainant and Ms. Ghouse going together into Ms. Ghouse’s office and the Complainant then returning with the signed second contract that was scanned into the Branch’s computer system. Instead, on the evidence internally consistent with all of the surrounding circumstances I find that the Complainant was treated with appropriate respect in both her signing the first contract on September 10 and the second contract on September 14, 2015, along with the Complainant’s receipt of the other documents in the on-boarding package. The Association’s failure to call Ioana who was supposedly present with the Complainant when the first on-boarding package was provided and who purportedly suffered the same experience of having her first contract “ripped up” by Ms. Ghouse, without explaining the reason for Ioana’s absence, led me to discount the Complainant’s allegations of what otherwise would be serious breaches of the reasonable dignity that should be accorded to all employees.

65The credibility deficiencies that I have found with the Complainant’s testimony on these surrounding relationship issues with Ms. Ghouse leads me to doubt the reliability of the Complainant’s further assertions that she never agreed to the Employer’s change of salary stipulated in the first contract. Rather, on the totality of the evidence and its consistency with all surrounding events I accept Ms. Ghouse’s evidence (as corroborated by Ms. Efueye) that the Complainant stated, “she would love to stay and was OK with the salary” changes, even in the face of Ms. Ghouse asking her if she still wanted the Learning and Development Coordinator job. The evidence is conclusive that the Complainant didn’t have another job offer at the time and felt it preferable to take the position notwithstanding the change in compensation terms. In the absence of showing any detrimental reliance in the form of giving up another job, or perhaps evidence to support a finding that Employer’s first contract offer compromised the Complainant’s search for alternate employment which was not demonstrated, I could not find that the essential elements supporting the existence of an estoppel (i.e. being a clear representation contrary to a term of a collective agreement resulting in detrimental reliance) occurred in this case.

66But it is also reasonable to conclude on the totality of the evidence that the Complainant found herself in a very disappointing and unfair situation when she was confronted by her manager with the requirement to change her compensation package after she had signed the first contract for reasons that had nothing to do with the Complainant and was not expressly sanctioned by the collective agreement. I disagree with the Employer’s submission that there was only one contract between the parties at that point, being the collective agreement alone, which in the Employer’s submission did not prohibit changes in the Complainant’s starting salary provided it remained within the Level 4 wage band for the Learning and Development Coordinator’s job. The seminal case on this point standing for the proposition that there is no room for individual contracts of employment to the extent matters are covered under a collective agreement is the Supreme Court of Canada’s decision in McGavin Toastmaster Ltd. v. Ainscough, 1975 CarswellBC136 (S.C.C.), wherein Laskin C.J.C. writing for the majority at para. 10 stated: “The reality is, and has been for many years now throughout Canada, that individual relationships as between employer and employee have meaning only at the hiring stage and even then there are qualifications which arise by reason of union security clauses in collective agreements” (emphasis added). This is to say that there is a limited window for individual contracts in the context of employment under a collective bargaining regime, at the stage where the employee is hired and, subject to the provisions of the collective agreement to the contrary or qualifications therein, the employer has the right to set the starting salary (and perhaps other discretionary terms) for the employee at the beginning of the relationship. This is a narrow point of interface between individual contracts of employment governed by common law principles that may be permitted under a collective agreement. It is after the hiring stage that the individual employment contract with the employee and the terms of the collective agreement merge so that only the collective agreement remains and governs the relationship going forward.

67Applying the foregoing principle in the instant case, insofar as the Employer purported to rely on article 19.1.2 of the collective agreement in justifying the reduction in the Complainant’s compensation from $68,000 to $63,482, which states in part that: “An employee who is promoted shall receive a promotional increase of at least three percent (3%)”, that article prescribes a floor but not a ceiling to the percentage increase the Employer can offer as a starting salary, provided it falls within the negotiated range for the position at issue under the collective agreement. The Employer acknowledged that $68,000 falls within the Level 4 salary band for the job of Learning and Development Coordinator. There is no question on the evidence that Ms. Ghouse intended to offer the Complainant the starting annualized salary of $68,000 in order to entice the Complainant into an employment relationship, which was unequivocally accepted in writing by the Complainant on September 10, 2015. This is not a situation where Ms. Ghouse misread or misconceived the range of permissible starting salaries under the collective agreement for an employee in the Complainant’s position. Where I have found there was a clear intention by Ms. Ghouse to offer that rate of pay in order to encourage the Complainant’s acceptance that is not prohibited by the collective agreement, and evidence of the clear acceptance of that offer by the Complainant, I conclude that a contract to pay $68,000 as the starting annualized salary in consideration of the Complainant’s acceptance of the offer has been established by the Association that was binding on the Employer. Contracts are important commitments that can’t easily be discarded by simply tearing them up (both literally and figuratively), as the Employer has purported to do in the instant case; and there are serious implications when a written contract expressly setting out the starting salary is unambiguously offered and unequivocally accepted outside of those circumstances governed by the limited legal principles of “mistake”, which was not argued here.

68Whether Ms. Ghouse had the actual authority to offer the Complainant the salary of $68,000 is irrelevant where she had from all outside appearances and without evidence of the knowledge of the Association to the contrary, the ostensible authority to make that monetary offer. Indeed, there is no doubt she could make that offer to an employee who was new to the OPS. When Ms. Ghouse extended an offer of $68,000 salary she did so on behalf of the Employer in a manner that was sanctioned under the collective agreement, and hence any want of authority by Ms. Ghouse to make that offer is nevertheless binding on the Employer in spite of any internal administrative prohibitions in the matter. The fact that Ms. Ghouse’s Director at the time, Ms. Gittens, approved an increase to 5% of the Complainant’s previous rate which was the limit of her authority indicates that there are mechanisms to correct such administrative “errors”, which included the authority of the Deputy Minister to approve the increase offered by Ms. Ghouse. But to then fail to submit the problem to the Deputy Minister, which was the only level of management authorized to really redress the “error”, was in my view a serious procedural mistake by the Director that deprived the Complainant of her rights under the collective agreement (although I do not suggest that the Director’s actions were intended to have that effect or that she acted in bad faith or with any improper purpose). While article 3 of the collective agreement confers on the Employer broad managerial authority “to manage the business and direct the workforce, including the right to hire…”, and within that rubric to set the starting salary for an employee provided it is not otherwise contrary to a term in the collective agreement, there is a presumption that in exercising its managerial rights the Employer will act honestly, reasonably, in good faith, and not arbitrarily or capaciously. See Bhasin v. Hrynew, 2014 SCC 71 (S.C.C.), standing for the fundamental premise that, “parties generally must perform their contractual duties honestly and reasonably and not capriciously or arbitrarily” (per Cromwell J. at para. 63), which labour arbitrators have adopted as the “general organizing principle” for the interpretation, administration and enforceability of collective agreement terms (also referred to as “the principle of good faith collective agreement administration”) in defining the limits of managerial discretion: Per Arbitrator Sims in Re Global Edmonton and Unifor Local M-1 (Edmonton Meal Periods), 2015 CanLII 72296 (AB GAA), 2015 CarswellNat 8138, 125 C.L.A.S. 47, 263 L.A.C. (4th) at paras. 85 – 93.

69In my view the Employer’s conduct fell short of that expectation as it fettered its own discretion by failing to remit the problem to the Deputy Minister that was the only level of management able to effectively consider and remedy Ms. Ghouse’s initial error. While Ms. Ghouse and the Director believed they were acting reasonably by granting a 5% salary increase to the Complainant that no other new employee received, in my opinion that did not go far enough to fulfill the Employer’s obligations in the matter. It may be that had the issue been remitted to the DM there would be compelling reasons justifying the DM’s exercise of managerial discretion against granting the 13% salary increase from the Complainant’s previous job that was promised by Ms. Ghouse. But we can never know what those reasons might have been (and if they pass muster under the collective agreement) when it simply wasn’t submitted to the only level of management that could effectively redress the problem. The Employer’s failure in that regard rendered its conduct arbitrary.

70For the Employer to then suggest that the Complainant acquiesced with the lower salary unilaterally imposed by the Employer under the second contract because she said “she would love to stay and was OK with the salary” without offering some form of consideration for that change, where she didn’t have any alternatives at that time and thus was in a vulnerable position, is in my opinion sufficiently unjust as to be beyond the reasonable expectations of the parties for the fair administration of the Employer’s management rights under article 3 of the collective agreement. Since it is conceded that no fresh consideration was provided to the Complainant for signing the second contract on September 14, 2015 resulting in the reduction of her salary, it was not binding at the common law interface with the collective agreement in accordance with the principles stated by the Ontario Court of Appeal in Hobbs v. TDI Canada Ltd., supra, per Juriansz JJ.A. at paras. 42 – 43 (as one of many examples of this nature). In that case a contract referred to as a “Solicitor’s Agreement” imposed by an employer shortly after an employee’s hiring that the employee signed without any additional consideration was held unenforceable for want of fresh consideration, as follows:

¶ 42 The requirement of consideration to support an amended agreement is specifically important in the employment context where, generally, there is inequality of bargaining power between employees and employers. Some employees may enjoy a measure of bargaining power when negotiating the terms of prospective employment, but once they have been hired and are dependent on the remuneration of the new job, they become more vulnerable. The law recognizes this vulnerability …

¶ 43 In the present case, I conclude that Hobbs received no consideration for signing the Solicitor’s Agreement….

71I therefore conclude that the second contract signed by the Complainant was unenforceable for want of fresh consideration, leaving only the first contract with the Complainant that the Employer breached after the hiring of the Complainant inside the narrow window permitting an individual contract to exist within a collective bargaining regime that is governed by common law principles of contract.

(c) The Timeliness Question

72The real question that remains, however, is whether the Complainant’s delay in pursuing her dispute over the Employer’s breach of contract until the end of her employment six months later on March 10, 2016, bars any chance of recovery in whole or in part for the Employer’s breach. (Given the generous definition of “days” under article 15.5.6 of the collective agreement that excludes weekends and holidays, I accept the Association’s submission that the actual delay in pursuing the complaint calculated from September 14, 2015 in calendar days was approximately 4.5 months). Even concluding that the Complainant was entitled to the annualized salary of $68,000 to the end of her fixed term contract, which the Association has calculated as an additional $2,200, do I have the authority to order some or all of that payment under the collective agreement?

73Article 15.5.7 of the collective agreement, reproduced above, states that the Employer and the Association acknowledge the importance of resolving disputes under the collective agreement “at an early stage” and the parties further, “acknowledge the importance of full disclosure of issues and open discussion throughout the process to facilitate mutually acceptable resolutions”, which contemplates the fulsome exchange of all relevant circumstances related to a matter in dispute. Article 15.3.1 provides that where the parties are unable to informally resolve a dispute, the Association, on behalf of an employee, may submit a dispute in writing to the manager “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.” Article 15.5.4 of the collective agreement goes on to stipulate the agreed consequence of non-compliance with the time limits, providing that if a dispute is not processed by the employee within the prescribed time period, “it shall be deemed to have been withdrawn.”

74Interpreting similar language in the collective agreement between the Employer and the Ontario Public Service Employees’ Union (OPSEU), the Employer has referred to three decisions of the Grievance Settlement Board as authority for the proposition that violating the 20 day time limit provided for in the OPSEU collective agreement for bringing grievances will typically result in dismissal of the claim except in extraordinary circumstances. Thus, in OPSEU (Rondeau), supra, Vice Chair Leighton dismissed a grievance of alleged sexual harassment where the grievor waited 26 months to file her complaint after the last of the precipitating “events” that the grievor actually knew about at the time. Similarly, in OPSEU (Smith et al.), supra, Vice Chair Gray dismissed the grievances of two employees who complained that management failed to exercise its discretion to place them at a higher salary level in violation of an implied contractual duty to act reasonably but delayed filing their claims under the grievance procedure for about three months after becoming aware of the circumstances leading to the dispute. The adjudators in both of those cases considered but rejected the union’s arguments that the time limits ought to be extended under the general grant of authority to an arbitrator in sec. 48(16) of the LRA where “there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension” having found that the delay in filing each grievance was not reasonable. In OPSEU (Fazakas et al.), supra, Vice Chair Petryshen allowed grievances alleging the Employer failed to provide appropriate merit pay under the collective agreement that had been ongoing for several years, but since the breach of contract was found to be in the nature of a continuing violation that occurred afresh each time the grievors were paid at the improper rate, their recovery was limited to the period that was 20 days prior to the filing of each grievance instead of the several years of back pay that the grievances claimed.

75The Complainant acknowledged that she was aware of the time stipulations for raising complaints under the collective agreement, particularly given her past experience as a contract employee in a confidential labour relations role. There is also no question on the evidence before me that she delayed filing a formal complaint more than 30 days after the first contract providing for an annualized salary of $68,000 was replaced by the second contract with its reduced salary to $63,482, which on its face is contrary to the parties’ expectations under article 15.3.1 of the collective agreement that the foregoing authorities interpreting similar contractual language have found to justify the dismissal of the complaint on timeliness grounds.

76In circumstances where the evidence establishes such a clear breach of the time limits for bringing a complaint amounting to an effective delay of more than four months by a person who knows, or ought to know, the requirements under the collective agreement and the clear negotiated consequences provided for under the collective agreement for non-compliance, I have no choice but to conclude that the complaint, as calculated from the breach of the first contract dated September 10, 2015 with the imposition of the second contract, was untimely.

77I have also concluded that this is not an appropriate case to exercise my discretion under sec. 48(16) of the LRA to extend the time limits under the collective agreement for filing the dispute. In considering the principles I should follow in determining whether to exercise that discretion, the Association referred me to the leading decisions of Arbitrator Burkett in Re Becker Milk Company Ltd., supra, and Arbitrator Schiff in Re Greater Niagara General Hospital, supra, that I had the opportunity to consider in St. Clair Catholic District School Board v. Ontario English Catholic Teachers’ Assn. (St. Clair Secondary Unit) (Davis Grievance), [2011] O.L.A.A. No. 63, wherein I summarized that line of authority as follows at paras. 52 – 56.

¶ 52. All of which brings me to the essential question remaining of whether I ought to exercise my statutory discretion under subsection 48(16) of the LRA to extend the time limits in the grievance procedure for the initial filing of the individual grievance on February 9, 2010. The parties have not disputed my authority to apply subsection 48(16) and the Board agrees that it would not be “substantially prejudiced by the extension” of time. The narrow issue I must determine is whether I am “satisfied that there are reasonable grounds for the extension” in the factual circumstances of the present case. For ease of immediate reference, subsection 48(16) is repeated below:

48. (16) Extension of time. – 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 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.

¶ 53. The parties provided me with caselaw to assist my deliberations. In Re Becker Milk Company Ltd., supra, which concerned the discharge of a “rank and file employee” who was three weeks late filing his grievance, Arbitrator Burkett noted at p. 219 that what is now subsection 48(16) [then s. 37(5a)] was added to the LRA in 1975 “for the purpose of alleviating against technical objections based on a non-observance of the time-limits as set out in the grievance procedure.” He explains that an arbitrator should consider “at least three factors” in exercising the discretion vested by that subsection: (i) the reason for the delay given by the offending party; (ii) the length of the delay; and (iii) the nature of the grievance. He also offers an interpretation of the term, “reasonable grounds for the extension” at pp. 220 – 221, as follows:

The exercise of the equitable discretion vested in an arbitrator under s. 37(5a) 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. In so far as Re Pamour Porcupine Mines Ltd. (Schumacher Division) and U.S.W. (1976), 1976 CanLII 2174 (ON LA), 12 L.A.C. (2d) 122 (Dunn), stands for the proposition that the only factor to be considered is the “reasonableness of the excuse” for the delay, I respectfully disagree. 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….The term “reasonable grounds for the extension” as found in s. 37(5a) of the Act is not synonymous with the reasonableness of the excuse advanced by the offending party. Having regard to the purpose of the section the term carries a broader signification which requires the arbitrator to weigh a number of factors, including but not necessarily restricted to those which have been set out above.

[Emphasis added]

¶ 55. In Re Standard Products (Canada) Ltd., supra, Arbitrator Davie adopted the following expanded list of six factors derived from an earlier decision of Arbitrator Schiff in Re Greater Niagara General Hospital and O.N.A. (1981), 1981 CanLII 4449 (ON LA), 1 L.A.C. (3d) 1, in deciding whether to exercise arbitral discretion to extend time limits for a grievance that was late by (at best) seven or (at worst) 14 months in a case challenging the denial of sickness and accident benefits for a pregnant employee who stopped working because of concerns that hazardous fumes in the workplace might compromise the health of her fetus: (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; and (6) Whether the employer could reasonably have assumed the grievance had been abandoned.

78It is my opinion that none of the factors considered in the foregoing cases applies in the circumstances before me to mitigate the effect of the Complainant’s delay in filing her complaint to the end of her fixed term contract on March 10, 2016. I reject the Complainant’s explanation for not wanting to “rock the boat” as a reasonable excuse; particularly after October or December of 2015 when she initiated proceedings under the WDHP process (which was finalized by the end of January 2016) and decided not to apply for her own job when it was posted as a full-time position. Even if her initial reticence in order to preserve the relationship with her new supervision was an understandable explanation for her delay, her subsequent actions coupled with my general reservations concerning the credibility of her testimony, disqualifies her from any consideration of extending the time limits to pursue her dispute as calculated from the original date of the breach.

79Nevertheless, I agree with the Association’s alternate submission that the breach of contract in the present case was in the nature of a continuing violation of the collective agreement that was triggered each time the Complainant received a periodic payment at less than the $68,000 annualized rate required by her first contract dated September 10, 2015. Therefore, following Vice Chair Petryshen’s analysis in OPSEU (Frazakas et al.), supra, I conclude that the Complainant is entitled to damages for that breach of contract calculated for the 30 day period prior to March 10, 2016 (that does not include weekends and holidays under the collective agreement), which was the date the dispute was formally presented to the Employer.

VII. Disposition

80The Association’s dispute is consequently allowed in small part.

81I have found on the evidence that the Complainant’s claim of not being provided with proper written notice of termination required under the ESA must be dismissed.

82However, I have also found that the Employer violated the Complainant’s contract of employment at its hiring interface with the collective agreement when it replaced the first contract with the second contract reducing the Complainant’s annualized salary from $68,000 to $63,482 without fresh consideration, which was in the nature of a continuing breach each time the Complainant received a periodic payment on account of wages. As such, while the Complainant’s failure to bring her complaint within the clear time limits prescribed by the parties prevents the recovery of damages calculated from September 10, 2015, she is entitled to compensation for her loss in the 30 day period as defined under the collective agreement prior to the filing of her complaint on March 10, 2016.

83The precise amount owing to the Complainant is accordingly remitted back to the parties to resolve on the principles stated above, failing which I remain seized to determine the matter.