GSB# 2020-1933

UNION# 2020-0623-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Jackson)

Union

• and -

The Crown in Right of Ontario (Ministry of Northern Development, Mines, Natural Resources and Forestry)

Employer

BEFORE

Dale Hewat

Arbitrator

FOR THE UNION

Alex Zamfir Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Erika Montisano Treasury Board Secretariat Counsel

HEARING

January 20, 2022 (by video conference)

DECISION

1This case involves a grievance about whether certain duties performed by the Grievor, after the end of his scheduled shifts during the 2020 active fire season accrued compensating time off or overtime in accordance with Articles UN 8.7.1 and UN 8.75 of the Collective Agreement. Article 22.16 of the Collective Agreement governs this proceeding. That article reads as follows:

22.16 MEDIATION/ARBITRATION PROCEDURE

22.16.1 Except for grievances concerning dismissal, sexual harassment, and/or human rights, and Union grievances with corporate policy implications, all grievances shall proceed through the GSB to a single mediator/arbitrator for the purpose of resolving the grievance in an expeditious and informal manner.

22.16.2 The mediator/arbitrator shall endeavour to assist the parties to settle the grievance by mediation. If the parties are unable to settle the grievance by mediation, the mediator/arbitrator shall determine the grievance by arbitration. When determining the grievance by arbitration, the mediator/arbitrator may limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate. The mediator/arbitrator shall give a succinct decision within five (five) days after completing proceedings unless the parties agree otherwise.

22.16.7 Decisions reached through the mediation/arbitration process shall have no precedential value unless the parties agree otherwise.

2The Grievor is employed in a Schedule 6 position, in the Classification of Resource Technician, Senior 4, and holds the permanent position of Fire Response Specialist. During the active fire season, the Grievor fulfills the function of the Regional Duty Officer. His grievance was filed on October 8, 2020 and was received by the Employer on October 26, 2020. The particulars of his grievance challenge compensation classified as overtime pay instead of compensating time off for a number of hours worked between August 3 and October 12, 2020. There was no suggestion that it was the Grievor who caused the delay in the Employer not receiving the grievance until October 26, 2020.

3The Employer has raised two preliminary motions asking for the grievance to be dismissed. The first motion is that the grievance does not meet the time-limits under Article 22.2 of the Collective Agreement and that there are no reasonable grounds that would cause me to exercise my discretion to extend the time-limits under Section 48.16 of the Labour Relations Act. The Employer notes that a Group grievance on the exact issue was filed on October 20, 2019 and was withdrawn on August 25, 2020. From the Employer’s perspective the Grievor knew about the issue in 2019, 14 months prior, and as a result this grievance should be dismissed as untimely. The second motion is that the grievance is a Union grievance dealing with an interpretation of the Collective Agreement and therefore cannot be brought under the guise of an individual grievance, as the Grievor has done.

4The Union submits that the 2019 Group grievance should not be considered in assessing delay. The Union argues that while the Grievor would have known in August of 2019 about the Employer’s position that all work after a scheduled shift is fire related, the alleged breaches of the Collective Agreement crystallized for him on August 3, 2020, when he saw that his Manager had changed his time sheets to reflect fire related work attracting overtime pay. While acknowledging that the October 8, 2020, grievance was filed beyond the 30-day time limit under Article 22.2 of the Collective Agreement, the Union maintains there are reasonable grounds to extend the time-limits in this case. The Union also asserts that the grievance is an individual grievance for which I retain jurisdiction. Alternatively, the Union submits that the Employer, by only notifying the Union on January 14, 2022, of this motion, has waived its right to raise the preliminary objection questioning the type of grievance before me.

The Facts

5For the purpose of these motions, the Parties agreed that no testimony was required and that the facts presented would form the basis of this decision.

6The interpretation of how hours worked after an individual’s scheduled shift , by Schedule 6 Staff in the Eastern Ontario Fire Region, are classified was the subject of a Memorandum of Agreement dated May 27, 2004, that set out a list of circumstances where work would be considered “ fire related”. If work is considered fire related, then overtime is paid. If work is not considered fire related than compensating time off is given in lieu of additional hours worked.

7On August 19, 2019, an email was distributed by Management that confirmed staff are not entitled to be paid for compensating time off for response role work beyond a normal scheduled day during the fire season. Later that day, there were further emails from staff indicating that they disagreed with Management’s interpretation of overtime earned. Management responded that response roles were fire related and therefore compensated by overtime pay and that the Union was free to grieve Management’s decision.

8On September 10, 2019, Len Sedore, the Union President, sent an email to the Grievor and Lyle Lacarte advising them that he would be asking OPSEU head office to look into the matter regarding compensation for hours worked beyond a scheduled workday and would get back to them with the Union’s response and asked them to share his email with others. On October 21, 2019, Mr. Sedore filed a “Group Grievance” which read: “Overtime in the REOC statement: I am not allowed to accrue compensating time while working in the REOC; management feels all work in the REOC is considered “fire related”. Therefore, any and all overtime accumulated while working in the REOC must be paid. I do not agree with their interpretation. We should have the option for accruing comp time to be taken off later or paid a future date. Settlement Desired: Ruling on how fire-related and non-fire related over-time is recorded and to be made Whole”.

9The Group grievance was scheduled for arbitration on September 2, 2020. On August 25, 2020, the Union notified the Employer that the grievance was being withdrawn on a without prejudice basis, and the arbitration was cancelled.

10After that grievance was withdrawn the Grievor filed his grievance on October 8, 2020, which contains similar language to the Group grievance. In addition, his grievance refers to the fact that he submitted time sheets for compensating time off that had been approved by his direct Manager that were subsequently changed by the business Manager to overtime pay for fire related work. The Grievor seeks to have the time sheets reversed to reflect non-fire related work and to be made whole.

11Prior to filing his grievance, the Grievor was asked by the Fire Operations Clerk to review and approve time sheets for various pay periods starting July 27, 2020. Between April and July 2020, approval had been given for non-fire related work and the Grievor had received compensating time off. In each of the time sheets post July 27, 2020, that were sent to the Grievor, time that he had entered as non-fire related had been changed to fire related by his new Manager resulting in a notation that the Grievor would be receiving overtime pay for his work. The Fire Operations Clerk sent emails to the Grievor asking for his approval to submit his timesheets on August 15, 25, 29, September 27 and October 19, 2020. The Grievor advised the Fire Operations Clerk not to submit his timesheets and responded to all of her emails by stating: “Please hold this timesheet until such time the grievance I submitted in the fall of 2019 regarding these Time Reporting Codes changes has been settled.”

Decision

12Having considered the facts presented and all of Counsels’ submissions, I have decided that the grievance filed on October 8, 2020 is an individual grievance. I do not agree with the Employer’s motion that this grievance is untimely due to delay stemming from August 2019. I am also prepared to extend the time-limits back to August 3, 2020, for the October 8, 2020, grievance. Having made this decision, I will not deal with the Union’s argument that the Employer waived its right to bring the motion that this matter is a Union grievance.

13While the Grievor was aware of the October 2019 Group grievance and was waiting for the matter to dealt with at arbitration, the particulars of his case show that the alleged breaches, for which the Grievor is seeking a remedy, became known in August 2020 when his time sheets were changed from non-fire related to fire related. Up until that point, the facts submitted reveal that at least between April and July 2020, the Grievor’s claims for non-fire related overtime had been approved by his Manager as compensating time-off. These circumstances are analogous to situations where an employer provides notification of how it intends to proceed on a matter but does not act upon it. For example, in Unifor, Local 506 and Bell Canada, Re 2018 CarswellNat 5213, 137 C.L.A.S. 226, 296 L.A.C. (4th) 119, the arbitrator found that an announcement by the employer that union representation would no longer be permitted for insurance claims matters was not sufficient to start the clock ticking on when a grievance arose. Instead, the arbitrator concluded that the Union does not need to anticipate a breach of the collective agreement and it does not have to act before the employer acts.

14Alternatively, this grievance can be viewed as a continuing grievance, because each of the alterations to the Grievor’s time sheets starting in August 2020 can be seen as a series of separately identifiable breaches. Support for this conclusion is drawn from Arbitrator Burkett’s decision, at paragraph 10, in Religious Hospitallers of St. Joseph of Hotel Dieu of Kingston v. O.P.S.E.U., Local 452 1992 CanLII 14621 (ON LA), 1992 CarswellOnt 1251, 28 C.L.A.S. 215, 29 L.A.C. (4th) 326 where he notes that, in considering what constitutes a continuing grievance, the question is whether or not the conduct complained of gives rise to a series of identifiable breaches, each capable of supporting its own cause of action. Furthermore, where a grievance is found to be a continuing grievance the timing for filing runs from the latest breach. In this case, each time the Grievor’s time sheets were changed, a fresh step was taken by Management giving rise to the Grievor’s belief that he was entitled to compensating time off and not overtime pay.

15In determining that this grievance has been filed properly as an individual grievance, I have considered the caselaw submitted by the Employer in OPSEU (Taylor-Baptiste) and Ontario (Ministry of Correctional Services) GSB No. 1988-0469, OPSEU(Haynes) and Ontario (Ministry of Correctional Services) GSB No. 1989-1246 and OPSEU (O’Flaherty) and Ontario (Ministry of Community Safety and Correctional Services) GSB No. 2017-0441 et al. Based on the caselaw, it is clear that an individual cannot bring a grievance on behalf of others in the bargaining unit and that individual grievances give rise to individual recourse limited in scope to the individual. In this case, while the determination of the grievance on the merits may have a broader implication on the Collective Agreement interpretation, it is clear on the face of the grievance that the Grievor is specifically asking for a remedy that only applies to him . As noted in OPSEU (O’Flaherty), supra, at page 21:

“The key to a proper individual grievance is that there must be a claim that the grievor’s rights have been affected. Whether this infringement of the right has resulted from some individual action taken against the grievor specifically or by some general action taken by the employer is not relevant as long as the result is that the grievor’s rights have been affected.”

16In terms of the timeliness of the October 8, 2020, grievance, my understanding is that there may be different time frames for determining which alleged breaches should be included as part of the evidence in this case. There were not any facts attributing responsibility to the Grievor for the grievance being received by the Employer on October 26, 2020. Looking back to August 3, 2020, it is clear that the grievance was not filed within the 30-day time limit required under Section 22.2 of the Collective Agreement. In considering whether there are reasonable grounds for extension and whether there is prejudice to the employer under Section 48.16 of the Labour Relations Act, I have applied the usual factors considered by arbitrators noted in Haynes OPSEU, supra, at paragraph 66, including the nature of the grievance, whether the delay occurred in initially launching the grievance or at some later stage, whether the grievor was responsible for the delay, and whether the Employer could reasonably have assumed the grievance had been abandoned.

17In this case, the length of the delay between August 3 and October 8, 2020, is not so significant. Although the Grievor had sent emails asking that his timesheets not be submitted, he was under the impression that the Group grievance was going forward. Based on the facts before me, it is reasonable to infer that once he found out that the Group grievance had been withdrawn that he needed to submit a grievance relating to his objection to the changes made to his timesheets. The timesheets and particulars of what work the Grievor performed are documented and occurred within a brief period before the grievance was filed, so it should not be difficult for the Employer to adduce evidence regarding the Grievor’s allegations. While the nature of the grievance is not as significant as other more serious issues such as discipline or harassment, the allegations still deserve an analysis of whether the work in dispute was fire related. As a result, I will extend the time limit for filing this grievance and will hear evidence on the merits regarding the timesheets submitted by the Grievor in this case dating back to August 3, 2020.

18The case will continue on the merits on February 2, 2022.