P/0001/99, P/0005/99

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

D. Johnson and T. Smith

Grievor

• and -

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

Employer

BEFORE

Naresh C. Agarwal

Vice-Chair

FOR THE GRIEVOR

D. Johnson T. Smith

FOR THE EMPLOYER

Laura Williams Staff Relations Officer Ministry of the Solicitor General and Correctional Services

HEARING

July 12, 1999 September 2, 1999.

Decision

These proceedings relate to the grievances filed with the Public Service Grievance board (“Board”) by two operational managers, Mr. D. Johnson and Mr. T. Smith. While the two managers had grieved separately, their grievances were joined together for hearing as both of them were employed at the Maplehurst Detention Centre/Maplehurst Correctional Centre (“Maplehurst Complex”) within the Ministry of the Solicitor General and Correctional Services (“Ministry”) and had raised the same allegation against their common employer.

BACKGROUND

The present grievances involve the matter of how employees on a compressed work week are to be credited for a regular day off which falls on a statutory holiday. At the relevant time, the Grievors were working a compressed work week. While Regulation 977 under the Public Service Act provided for certain stipulated holidays, it did not address the situation of employees who had a regularly scheduled day off on a holiday. Prior to November 1, 1994, the practice of the Ministry when such a situation arose was to credit the employee with eight hours of lieu time notwithstanding that his or her shift might in fact be twelve hours long. When the employee later went to use this lieu time to take off another twelve hour shift, he or she had to top it off with accumulated attendance credits in order to receive full pay for the day. This practice applied to both operational managers and bargaining unit employees covered under a collective agreement with the Ontario Public Service Union (“OPSEU”).

The above policy of the Ministry was changed in response to an August 1992 decision of the Grievance Settlement Board (“GSB”) which held that the practice of granting eight hours of lieu time to employees on a compressed work week was contrary to the terms of the collective agreement, and that they should instead be credited with twelve hours [Simcoe et al (1992) 1725/91]. This reasoning was reiterated by the GSB in a subsequent decision on the same issue [Chew (1994) 3440/92]. The new policy of the Ministry on compressed work week and statutory holidays was communicated in a January 25^th, 1995 memorandum from Superintendent G. Commeford to all staff members at the Maplehurst Complex. This policy applied to bargaining unit employees as well as operational managers and was effective November 1, 1994.

Following the change in the Ministry’s policy, two implementation issues arose and were ruled upon by Arbitrator Kaplan as a one-person panel of the GSB. The first issue concerned retroactive compensation for those bargaining unit employees who had filed grievances prior to November 1, 1994. In his ruling issued in November 1995, Arbitrator Kaplan determined that the appropriate date for retroactivity was 20 days prior to when the Ministry first received a grievance that alleged a breach of the collective agreement and also referred to Simcoe et al. (The Ministry and OPSEU subsequently agreed to use December 1, 1992 as this date). The other implementation issue related to the entitlement of bargaining unit employees who had not filed a grievance prior to the Ministry’s change in policy. In his ruling issued in April 1997, Arbitrator Kaplan held that these employees were entitled to the same retroactivity provision as was applicable to employees who had filed a grievance.

In accordance with the above rulings, the Ministry applied its new policy to both grieving and non-grieving bargaining unit employees and changed the effective date of application of this policy to these employees from November 1, 1994 to December 1, 1992. However, it decided to leave November 1, 1994 as the effective date of application of the new policy to operational managers.

On August 25, 1997, Ms. L. Bertoli sent on behalf of all operational managers at the Maplehurst Complex a letter to Superintendent M. Stephenson, which is excerpted below:

The above mentioned managers wish to raise their concerns with the direction given by the employer that they are to request collectively, in writing, their legal entitlements. In the past, compensation that was offered bargaining members through the grievance process and were applicable to Schedule 5 managers, were implemented without having individuals within the ministry, let alone within the same facility, request their legal entitlements. You stated that the Staff Relations Office has given the direction to pay retroactive compensation not only to the employees that grieved, but also to non-grievors due to the arbitrator’s decision of April 16, 1997. the Board’s term of “universal application” implies all bargaining members that are entitled should receive the appropriate compensation whether they grieved or not. This decision should also apply to Schedule 5 managers.

For example, Ministry of Community and Social Services compensated their bargaining members for the (Simcoe/Chew) award of the time period September 28, 1992 to September 30, 1994 to grievors and non-grievors. This same ministry also compensated all Schedule 5 managers who were entitled to the settlement without having them submit their request individually or collectively. Their commitment to pay out both union and management employees was completed April 20^th, 1995. The managers named are obviously concerned with the inconsistent implementation of settlement entitlements across the Ministry of the Solicitor General and Correctional Services and the Ontario Public Service as a whole.

The managers that are named respectfully request their retroactive compensation as per your memorandum regarding the Simcoe/Chew Award. Also, in the future, that all settlements be equitably distributed to all managers where entitled and that a commitment to implement their settlements are within the same time frame as agreed to with the bargaining members as a minimum standard.

On September 29, 1997, Superintendent Stephenson forwarded the above letter to Ms. A. Gulbinski, Staff Relations Officer in the Ministry’s Human Resources Branch and inquired into the application of the GSB awards cited in that letter to operational managers. This action did not result in any change in the effective date of application of the Ministry’s new policy to the operational managers at the Maplehurst Complex. The date remained as November 1, 1994.

Subsequently, on October 23, 1998, Mr. Johnson and Mr. Smith initiated an informal discussion of their respective complaints with Deputy Superintendent M. Wasylyk. Following this, they proceeded through the remaining steps in the grievance procedure, culminating in their forwarding the grievances to the Board on April 20, 1999. Both Grievors claim that they have been unfairly and inconsistently treated in regard to the application of the Grievance Settlement Boards Simcoe et al and Chew decisions to their own individual cases. As remedy, they seek complete payment of all monies calculated in accordance with the grievance settlement plus incurred interest calculated at current rate since September 1, 1997”.

EVIDENCE AND SUBMISSIONS

At the commencement of the hearing, Ms. Williams raised two preliminary objections on behalf of the Employer. The first objection relates to the timeliness of the filing of the grievances. She submitted that subsection 34(1) of Regulation 977 stipulates that an aggrieved person may file a grievance within 14 days after becoming aware of the facts giving rise to the grievance. Ms. Williams argued that the initiating of the grievances in October 1998 and filing them with the Board in April 1999 was grossly untimely as the Grievors should have known several years earlier the facts giving rise to their grievances. She explained that these grievances relate to the issue of retroactivity of the Ministry’s new policy on compressed work week and statutory holidays. She contended that the Grievors should have known from Superintendent Commeford’s January 25^th, 1995 memorandum to all staff at the Maplehurst Complex that the new policy was retroactive only to November 1, 1994. They could have launched their grievance then.

Ms. Williams also referred to the Bertoli letter of August 25, 1997 which was written on behalf of and copied to all operational managers including Mr. Johnson and Mr. Smith. This letter talked about retroactive compensation from December 1, 1992 to November 1, 1994 being given to all bargaining unit employees. Ms. Williams argued that this was another date when the Grievors could have initiated their grievances. She acknowledged that the language of subsection 34(1) of Regulation 977 does give the Board some discretion in extending the 14-day time limit for filing grievances. Ms. Williams cited the Board’s decision in Amirault (1995) P/0028/94 as providing specific criteria that should be applied in exercising such discretion. She argued that the application of these criteria showed that the present grievances were untimely.

Both Mr. Smith and Mr. Johnson disputed the claim that they filed their respective grievances in an untimely manner. In their sworn testimony, they provided the following explanation of their position. The Grievors stated that operational managers at the Maplehurst Complex first became aware that the Ministry’s new policy on compressed work week and statutory holidays had been applied to bargaining unit employees retroactive to December 1, 1992 instead of November 1, 1994 as originally stated from a memo dated July 9, 1997 issued by Superintendent Stephenson. Upon receiving this memo, they inquired verbally from the Superintendent why operational managers were not being given the same entitlement. He said he would look into it. Subsequently, Ms. Bertoli sent him a letter dated August 25, 1997 on behalf of all operational managers expressing concern and pleading their case for equal treatment. This letter also stated that the Ministry of Community and Social Services had indeed compensated both its bargaining unit employees as well as operational managers retroactive to December 1, 1992. Mr. Smith testified that Ms. Bertoli had obtained this information from a friend, Mr. Rob Lister who was employed at the Syl Apps Youth Centre.

The Grievors further testified that Superintendent Stephenson informed operational managers verbally that in the Ministry of the Solicitor General and Correctional Services, only bargaining unit employees had been compensated retroactive to December 1, 1992 and that no such payments had been given to operational managers as they were not covered by the collective agreement. The Grievors submitted that they accepted this explanation and felt content with it until they found out that operational managers at the Ontario Correctional Institute (OCI) had been compensated retroactive to December 1, 1992. Mr. Smith testified that he obtained this information in a casual conversation one day with Mr. Marlin Brazzier who was employed at OCI but was on secondment at the Maplehurst Complex at the time. Mr. Smith explained that there was some administrative delay in filing his grievance due to his own promotional secondment at the Vanier Centre and that this delay was not his fault. Mr. Johnson testified that he became aware of payments to operational managers at other institutions during a day long meeting of the Maplehurst Complex operational managers held on October 20, 1998. Both Mr. Smith and Mr. Johnson initiated their individual grievances on October 23, 1998.

In his testimony, Mr. Brazzier indicated that he began his secondment at the Maplehurst Complex on October 1, 1997. He confirmed that he had been compensated under the Ministry’s new policy retroactive to December 1, 1992 and that he received this payment in September 1997. Mr. Brazzier stated that in April 1999, he found out from his Superintendent who was visiting the Maplehurst Complex for a meeting that the retroactive payment given to him twenty months ago was a mistake. Mr. Brazzier testified that he received a formal letter to this effect in May 1999 and that he returned the money the following month.

Ms. Williams raised a second preliminary objection on behalf of the Employer. She submitted that the central issue involved in the present case was the retroactivity of application of the Ministry’s new policy on compressed work week and statutory holidays announced in January 1995. The Grievors wanted that the retroactivity given to bargaining unit employees be given to them as well. Ms. Williams pointed out that the same exact issue was decided by the Board in two prior cases, Laird et al (1999) P/0050/95 and Blakney et al (1999) P/0144/96. In both these cases, the Board ruled that operational managers like the Grievors had no entitlement under the law to claim such retroactivity. Based on this reasoning, Ms. Williams argued that the Grievors should not be allowed to relitigate the issue. In support of this argument, she cited the doctrine of res judicata and these two cases: Rasanen v. Rosemount Instruments Ltd. (1994) 1994 CanLII 608 (ON CA), 17 O.R. (3d) 267, and OPSEU (Gould & Field) (1990) 674/88, 817/88.

The Grievors acknowledged that there were some similarities between their own case and the two prior cases decided by the Board. In particular, they agreed that the grievors’ position in all these cases was based on the contention that for retroactivity purposes, they should be treated in the same manner as bargaining unit employees. However, they drew attention to the evidence they had presented about retroactive compensation paid to operational managers at the Ontario Correctional Institute (OCI) and claimed that it was not available in the two prior cases decided by the Board. The Grievors contended that this evidence served to establish that in the matter of retroactivity, they were unfairly treated relative to their counterparts at the OCI. They also stressed that the Employer did not recognize or admit its mistake in making retroactive payments to the OCI operational managers for two years and further that the error was recognized only after their second stage grievances had been heard.

In reply, Ms. Williams noted that there was no evidence to indicate that the Employer recognized its mistake or acted after the stage two grievances were heard. She added that the only evidence before the Board was that Mr. Brazzier s given retroactive compensation and he paid it back. She argued that even if this evidence was considered new, it did not speak of the question of entitlements and, therefore, had no impact on the awards issued by the Board in the two prior cases.

DECISION

The Grievors are claiming that they are entitled to twelve hours of lieu time for every statutory holiday between December 1, 1992 and November 1, 1994 and should be given retroactive compensation for that period of time. They justify their claim on two grounds: first that bargaining unit employees had been paid such retroactive compensation and second that operational managers had also received such payments. In brief, the Grievors argue they should be accorded the same retroactive treatment for statutory holidays as these groups of employees working within the same Ministry.

Employer Representative contends that insofar as the Grievors claim is based on the ground of equal treatment relative to bargaining unit employees, it is untimely because it far exceeds the 14 day limit stipulated in law. She further contends that the issue raised by the present grievances has been decided in two prior cases, Laird et al and Blakney et al, and should not be relitigated. Having considered all the evidence and submissions placed before me in the present matter, I fully agree with the position taken by Employer Representative and accordingly dismiss the first ground put forward by the Grievors for their claim. The reasoning behind this decision is outlined below.

Subsection 34(1) of Regulation 977 of the Public Service Act sets the time limits for filing grievances. It reads as follows:

“A person described in subsection (2) who is aggrieved about a working condition or term of his or her employment may file a grievance with his or her deputy within 14 days after becoming aware of the working condition or term of employment giving rise to the grievance.” (Emphasis added)

It is clear from the Bertoli letter placed in evidence that while the Grievors knew certainly by August 25, 1997, if not before, that bargaining unit employees had been compensated retroactive to December 1, 1992, they did not initiate their grievances until October 23, 1998. I am of the view that the language of subsection 34(1) of Regulation 977 is permissive and allows the Board discretion to extend time limits for filing grievances in appropriate circumstances. However, I find no justifiable reason to exercise such discretion in the present case as the Grievors provided no real explanation for why they delayed filing their grievances by over twelve months after becoming aware of the fact from which their grievances arose.

I also examined in detail the two prior cases, Laird et al and Blakney et al, cited by Employer Representative in support of her argument that the present grievance should not be allowed to proceed. I find the situation in the present case to be a similar fact situation to that set out in the two prior cases in regard to the parties involved, the matter in dispute, and the relief being sought. I also fully concur with the decision and the reasons for that decision in Laird et al as summarized below, which were also cited and fully adopted in Blakney et al.

“There are practical reasons why an employer may want to ensure that managerial staff receive benefits that are at least equal to those enjoyed by bargaining unit employees. These include issues relating to staff morale and not wanting to discourage bargaining unit employees from accepting promotions into management. These types of considerations, however, do not create an entitlement on the part of management staff.

As a matter of policy the Ministry set November 1, 1994 as the effective date for its new approach to compensating employees for scheduled days off on a holiday. The GSB decided that this date was not appropriate for bargaining unit employees. It did so on the basis that in August 1992 it had found the employer’s prior policy to be in violation of the OPSEU collective agreement. The reasoning adopted by the GSB did not apply to the grievors. They were not covered by the collective agreement and had not raised an independent challenge to the employer’s prior policy. There is, accordingly, no basis for the Board to require that the employer adopt an earlier retroactivity date with respect to the application of its new policy to the grievors. Having regard to this conclusion, the remaining outstanding grievances are hereby dismissed.”

The second ground advanced by the Grievors is that operational managers at the Ontario Correctional Institute (OCI) were paid the retroactive compensation that they are claiming for themselves. If indeed this was true, it could conceivably provide an acceptable basis for granting the Grievors claim. The only evidence before the Board is that Mr. Brazzier, an operational manager at the OCI, was paid compensation retroactive to December 1, 1992. However, approximately twenty months from the date of this payment, the Employer informed Mr. Brazzier that he had been paid in error and should return the money, which he did the following month. The Grievors contend that the Employer admitted its mistake only after the hearing of their second stage grievances had been heard. However, there is no evidence before the Board which supports their contention. Such evidence, even if available, cannot create an entitlement for the Grievors to claim and receive compensation retroactive to December 1, 1992 under the Ministry’s new policy on compressed work week and statutory holidays. Accordingly, I also reject the second ground on which the present grievances are based.

In conclusion, for all of the reasons noted above, the present grievances are hereby dismissed.

Dated at Toronto this 20^th Day of December 1999.