P/0003/99

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Stephen Johnston & Hank Vipari

Grievor

• and -

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

Employer

BEFORE

D.J.D. Leighton

Vice-Chair

FOR THE GRIEVOR

Stephen Johnston & Hank Vipari

FOR THE EMPLOYER

Sunil Kapur/Christopher Jodhan Counsel, Legal Services Branch Management Board Secretariat

HEARING

September 10, 1999.

Decision

Mr. Stephen Johnston and Mr. Henry Vipari were Program Managers (schedule 6) at Syl Apps Youth Centre during the Ontario Public Service Employee’s Union’s strike which occurred between February 26 and March 31, 1996. They filed grievances on November 27, 1998, claiming that they have not been compensated for time spent on standby during the strike. The employer’s position is that the grievors are not entitled to standby pay and that the grievances are not timely.

Mr. Johnston and Mr. Vipari testified that one week before the strike began they were asked by their Director, Ms. Beverly Thomson, to provide their home telephone numbers. At this meeting they were also told that they would be provided with pagers and cellular phones. All vacations were cancelled. They were advised that they might be called on to return to the institution for an indeterminate time. The senior managers asked their director about compensation, but she indicated that she did not know what the compensation would be. Mr. Vipari testified that the clear import of the meeting was that the circumstances were extraordinary.

Syl Apps is a twenty-four hour residential facility for youth which also houses approximately seventy young offenders out of approximately 225 youth. Mr. Johnston said that the environment at the facility could be volatile, and he did not want to see the safety of the youth or employees of the institution compromised because of lack of staff. Although no one ever used the word “standby,” they took it that they had to be ready and available to work at all times when they were out of the institution.

After the strike was over, some managers from the institution grieved that they were not compensated for overtime, shift premium and standby. Mr. Johnston and Mr. Vipari thought that if these grievors were successful the employer would be fair to all those who had not grieved; in other words they would be paid if the grievors were paid. They were given the impression in the summer of 1996 that upper management would “work it out and would be fair.” So they did not file grievances in 1996. It was not until the fall of 1998 that they realized that the government was not going to compensate them for standby. Then they filed grievances which are now before me.

The grievors acknowledged in cross-examination that they knew that they had not been paid for time spent on standby. The Employer called no witnesses.

GRIEVORS’ SUBMISSION

The grievors submitted that they were asked to put their lives on hold during the strike. Given the nature of the facility, they were obligated to attend immediately if called upon by the employer. They understood that there would be compensation for their inconvenience, that payment would be fair. They only filed a grievance when it was absolutely clear that they were not going to be compensated.

In conclusion, Mr. Johnston said that having worked for the government for thirty years and never filed a grievance, he believed that they would be compensated without filing a grievance.

EMPLOYER’S SUBMISSION

Counsel for the employer, Mr. Kupar, submitted that this board has held that the authority to pay managers overtime, shift premium, and standby during the strike is found in Order-in-Council 2161/90; Mously et al. v. Ministry of Solicitor General and Correctional Services and Ministry of Community and Social Services, P/0171/96 (Leighton). Counsel argued that there is no provision in OIC 2161/90 to compensate schedule 6 employees for time spent on standby. Thus the grievors have no right to payment for standby.

Mr. Kupar also argued that a Crown employee cannot alter the terms of a statutory instrument such as an Order-in-Council through his or her conduct and/or words unless she or he has the authority to do so. Counsel cited Mously, supra, and subsection 29(1) of the Public Service Act as authority for this proposition.

In the alternative Counsel argued that if the employer’s obligation can be altered through conduct and words, the obligation is limited to those who rely on the representation to their detriment, an argument consistent with the doctrine of promissory estoppel. Counsel submitted that the elements of promissory estoppel are: a representation through words or conduct, intended to alter the legal relations between the parties, and relied upon or acted upon by the other party, so that it would be prejudicial if the understanding were revoked.

Counsel argued that the evidence presented to the board did not satisfy the elements of promissory estoppel. Mr. Kupar also argued that if the board determines that the grievors are entitled to standby compensation the appropriate method for payment should be according to OIC 2161/90. Any payment of prejudgement or postjudgement interest should be made in accordance with the Courts of Justice Act.

Mr. Kupar also argued that the grievors have filed their grievances beyond the time limit proscribed by the Public Service Act. Subsection 34(1) of Regulation 977 provides that a person who is aggrieved about a working condition or term of employment may file a grievance within fourteen days after becoming aware of it. Counsel argued that Regulation 977 was amended in 1996 and section 54 which gave the board the right upon its “own motion” to extend the time limits was omitted. Therefore in Counsel’s view the previous “subjective” test that the board applied to consider the timeliness of a grievance is no longer valid law. He cited Lay v. the Ministry of the Solicitor General and Correctional Services P/0014/95 (Leighton) for the old standard. He argued that the board had no jurisdiction to extend the time limits. The evidence in cross-examination was that both grievors knew within two weeks of the strike ending that they had not been paid for their time on standby, but they did not grieve until the fall of 1998. Therefore the grievances should be dismissed in Counsel’s submission.

DECISION

The Merits

Two questions are before the board: whether the grievors are entitled to compensation for hours spent on standby during the 1996 OPSEU strike, and whether their grievances are timely. I shall address the merits of the grievances first.

After careful review of OIC 2161/90 I have concluded that there is nothing in it which allows for schedule 6 employees to be compensated for time spent on standby. Schedule 6 employees in 1996 had no general entitlement to overtime pay or other premium payments such as standby pay. The government declared the OPSEU strike an emergency and invoked the powers under OIC 2161/90 to pay managers overtime and other premium payments. The OIC entitles schedule 3, 4 and 5 managers to standby pay. However, there is nothing in the OIC which provides for standby pay for schedule 6 employees.

Counsel for the employer, citing Mously, supra, argued that the terms of the OIC could not be varied by a Crown employee without authority to do so, and that only the parties that made the OIC can rescind or replace it. The question in Mously, supra, was whether the employer, having invoked the powers under OIC 2161/90, could ignore the mandatory language of the instrument and pay its employees less than the OIC provided. The government intended to pay straight time for overtime, when the language was mandatory that it be paid at time and one-half:

3. The employee shall be compensated for overtime credits as follows: schedule 3-7 or 4-7.

The employee shall be paid one and one-half times his/her basic hourly rate for each hour of overtime credit within two months of the pay period in which the overtime was performed.

Given this clear language, the employer could not do less than what was required by the OIC. This does not mean that the employer could not do more if it chose to do so. The board has stated previously that the employer has the discretion to do more than what is required under the OIC, Macklin et al. v. Ministry of the Solicitor General and Correctional Services, P/0144/96 (Leighton).

If the employer promised to pay schedule 6 employees for the time they spent on standby and the schedule 6 employees performed standby, then I am of the view that the employer would be obligated to pay. This has nothing to do with varying the terms of the OIC. It is a promise outside the provision of the OIC.

So the next issue to consider is whether such a promise was made to the grievors. After careful review, I have concluded that the evidence is insufficient to establish a promise was made to pay the grievors for the time spent on standby. While the evidence is clear that the grievors were told to be ready at all times to be called to the institution, there was no clear promise or indication by their supervisor that they would be compensated for being on standby. When they asked about compensation, Ms. Thomson said she did not know what the compensation would be. The grievors assumed, it would seem, that there would be compensation. For employees to establish a right to a benefit or compensation that is not normally provided by the employer, the promise to provide must be clear and unequivocal. In this case, there is insufficient evidence to satisfy this burden. Thus the grievances must fail on the merits.

Timeliness

The second question before the board is whether the grievances are timely. I am not persuaded by the argument of the employer that this board has no discretion to entertain a grievance after fourteen days have elapsed, nor that the subjective test previously established by this board is no longer good law. The provision which allows certain eligible employees to file a working conditions grievance did not change in substance. The old provision was:

subsection 44(1) Any person may present a complaint in respect of working conditions or terms of employment to his or her supervisor within fourteen days of his or her becoming aware of the complaint...

(Emphasis added)

The new provision is:

subsection 34(1) 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 conditions or term of employment giving rise to the grievance.

(Emphasis added)

This board held that the language of the old provision, subsection 44(1), required a subjective analysis of the facts of each case to determine whether a grievance was timely. Lay, supra. Since the language of the new provision, section 34(1) is substantively the same as the prior one, I have to conclude that a subjective analysis is still appropriate. Thus the most important factor to consider is when the grievor became aware of his or her complaint.

Moreover, while the rather archaic language of subsection 54 has been removed, I am not convinced that this changes the board’s discretion to extend time limits in appropriate cases. If the commission had intended this result, the language of subsection 34(1) would be mandatory not directory. Subsection 34(1) uses the permissive term “may,” as opposed to the mandatory term “shall.” Arbitral jurisprudence is helpful here. Arbitrators have generally held that there is no discretion to extend time limits for filing grievances when a mandatory time limit in a collective agreement exists. However, when the language is permissive, arbitrators have generally held that they have the discretion to extend time limits in appropriate circumstances. Moreover, without clear language in the regulation which spells out the consequences of not filing within fourteen days of a complaint, it would be wrong to fetter the board’s discretion to consider the reason for the delay.

In the grievors’ case even though they knew within months of the strike that they had not been paid for standby, they delayed filing grievances because they were confident that they would ultimately be compensated. In the summer of 1996 they understood that senior management was looking into the matter. They honestly and sincerely believed that having performed as required, they would be compensated for what were clearly extra demands. After many years of service to the government, and having never filed a grievance, Mr. Johnston was reluctant to begin the formal process of complaint. All of these reasons justify some delay but not eighteen months. The other main reason for the delay was that they were relying on others who were grieving the issue. Unless there is some clear agreement between the parties that not all affected employees need grieve an issue to benefit from a board decision, this is not a good reason for the delay. Further, that it took until the Fall of 1998 for the grievors to realize that they were not going to be paid, without more explanation, does not justify the delay. There is no other evidence to explain the delay.

The need to be fair to grievors must be balanced against a need to be fair to the employer. While there was no evidence of prejudice to the employer here, I am of the view that in this case a delay of eighteen months is too much and the grievances also must be dismissed because of the delay in filing them.

For the reasons noted above the grievances are hereby dismissed.

Dated at Toronto this 8th day of November 1999.