P/0014/95

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

J. Lay

Grievor

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services)

Employer

BEFORE

D. Leighton

Panel Chairperson

FOR THE GRIEVOR

J. Lay

FOR THE EMPLOYER

M. Mously Grievance Administration Officer Ministry of the Solicitor General & Correctional Services

HEARING

November 22, 1995

Mr. John Lay, currently employed with Correctional Services, filed a grievance with the Public Service Grievance Board (the Board) on August 9, 1995. He is grieving disciplinary action that occurred in January of 1988, when he was Operational Manager at the Ottawa-Carleton Detention Centre. The representative of the Employer made a motion to this Board to dismiss the grievance because of the excessive delay between the events which are being grieved and the filing of the grievance.

The parties agreed as to the facts as follows. After at least part of a disciplinary hearing had been held, Mr. Lay signed a letter requesting a re-classification which amounted to a demotion. He now says that he signed that letter under duress. His grievance to the Board includes a complaint that he was given no counsel or guidance during the disciplinary process. It was not until 1995 that the Grievor discovered that there was a Ministry policy in place at the time of his discipline which states that demotion is not to be used as a form of discipline. Upon discovering this information, he requested that his supervisor review his personnel file and he made a complaint about the discipline which occurred in 1988.

At the outset of the hearing, the Employer submitted that the grievance was not timely and should be dismissed. The Employer cited Section 44 of Regulation 977, passed pursuant to the Public Service Act, R.S.O. 1990, c.P. 47, as amended, which provides the general time frames for filing a grievance:

(1) Any person may present a complaint in respect to working conditions or terms of employment to his/her supervisor within 14 days of his/her becoming aware of the complaint, and the person and his/her supervisor shall endeavour to resolve the complaint by informal discussion.

(2) If the complaint is not resolved under subsection (1), the person may present the grievance in writing to the supervisor within seven days of the date of the informal discussion and the supervisor shall give the Grievor his/her decision in writing within seven days of the presentation.

The Employer also cited Section 54 of Regulation 977 which gives the Board the general discretion to extend time limits and acknowledged this Board's authority to extend time limits as held in two recent cases before the Board: Kitzul (P/0008/93) and Amirault (P/0028/94). However, the Employer argues that the Board in exercising its discretion should dismiss the grievance in this case because a delay of seven years is inherently prejudicial to the Employer.

The Employer submits that because the Employee did not grieve shortly after the discipline, the Employer did not take steps to preserve records and make special note of the events. Although the Employer did not tender evidence showing actual prejudice, the Counsel argued that it would be highly unlikely that the Employer would get a fair hearing seven years after the event. Some people that were involved in the discipline have no recollection or little recollection of the events and some are no longer with the Ministry. The Employer submitted that there was no justification for a delay of seven years and, therefore, the grievance should be dismissed on the preliminary motion.

The Grievor submitted that he was given no choice in requesting a demotion in order to settle the disciplinary hearing that was proceeding against him back in 1988. He signed the letter requesting the demotion and he believed he was obligated by law to honour the agreement. He stated that he had no counsel, assistance or guidance as to his rights. It was not until sometime in 1995 that he realized that there was even a policy in place in 1988 that provided that it was not permissible for the employer to discipline by demoting an employee. Thus the Grievor argued that he acted as soon as he became aware of the complaint.

Decision

It would seem to be well established that this Board has the discretion to extend the time limits for the filing of a grievance and that as the Board in Kitzul stated, “The legislation has provided the Board with the latitude and jurisdiction to judge each case where breaches of time limits are alleged” (p.9). The question is when is the delay too long and in what circumstances will the Board either grant or deny the grievance because it is not timely?

The Grievor in Kitzul was facing a criminal charge because of an incident for which he was disciplined. He did not file his grievance until seven months after the discipline. The Board accepted the Grievor’s evidence that he believed that he would be vindicated by the courts and, therefore, waited until after the charges were dropped before filing his grievance. The Employer argued in Kitzul that it would be prejudiced by the delay in hearing the case. However, the Board was convinced by the sincerity of the Grievor for the reason for the delay and held that any prejudice, if there was any due to the delay in hearing the case, could be dealt with appropriately in deciding the remedy. The Board in Kitzul balanced the interests of the Grievor in his right to a hearing against the possible prejudice against the Employer for the delay in hearing the grievance.

In analysing Section 44(1) of Regulation 977, the Board in Amirault examined the provision that a person may make a complaint within fourteen days of “becoming aware of the complaint,” the Board concluded that this language required a subjective analysis of the facts of each case to determine whether a grievance was timely. Thus it would be important to know when a grievor became aware of his/her complaint. However, the Board in Amirault went on to state:

The subjectivity of the test regarding time frames under Section 44 cannot be unlimited. It would have to be tempered with a consideration of objective factors, such that in appropriate cases the Board would be able to ask when a complaint might have reasonably crystallized in the mind of an employee, or whether the delay was unreasonable. In appropriate cases, the test would also include the concept of substantial prejudice with respect to the ability of the employer to mount a case because of the passage of time. In the final analysis, the underlying question must always be whether it is possible to hold a fair hearing in light of the delay in initiating or advancing the grievance.

In Amirault, the Grievor was promoted in 1992. It was not until July 1994 that she learned of a salary discrepancy, which was the basis of her complaint. The Board in Amirault was persuaded by her evidence as to this fact. Further, there was no evidence before him that she ought to have been aware of the discrepancy earlier. Thus, in Amirault the Board decided that even a delay of almost two years in filing a grievance' was not a bar to hearing the grievance on the merits.

The question before me is whether or not Mr. Lay should be allowed to grieve discipline seven years after it occurred. Like Amirault, Mr. Lay argues that he only became aware of the management directive that demotion not to be used in discipline cases until shortly before he filed this grievance. I am of the view that Amirault can be distinguished from the case before me. In Amirault, the Grievor had no reason, when she was promoted, to inquire into her salary vis a vis anyone that she was supervising. It was not unreasonable that she learned at some later date that there was a salary discrepancy and then grieved. But in Mr. Lay's case, he was being disciplined in 1988 and should have, at that time, done the research and inquired into what his rights were in the discipline process. A grievor must take some responsibility for informing himself. Thus I find that a delay of seven years in grieving his discipline was unreasonable. It is simply too long.

Further, I agree with the Employer that a delay of seven years in a grievance is inherently prejudicial. Although in most cases it would be preferable to have evidence of prejudice before making a finding that an employer would be prejudiced by the delay, I think in this case to allow a grievance to go forward seven years after the events, without special evidence to justify the delay, would offend principles of fairness and equity.

Thus I find the Grievor delayed excessively in his grievance and has, therefore, forfeited his right to do so now. This grievance is dismissed.

Dated at Toronto this 17th day of April, 1996.