P/0006/99, P/0012/99

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

David Clayton, Genevieve Blais

Grievor

• and -

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

Employer

BEFORE

Deborah J.D. Leighton

Vice-Chair

FOR THE GRIEVOR

Gary Pickering

FOR THE EMPLOYER

Chris Jodhan, Len Marvy Counsel, Legal Services Branch Management Board Secretariat

HEARING

April 5, 2000.

Decision

During the Ontario Public Service Employees Union strike in 1996, Ms. Blais held the position of Area Manager, Probation and Parole Service, in the Eastern Region. She was a schedule six employee. On Nov. 6th 1998 she grieved:

… for the period of February 26 to April 1st, 1996, I worked well beyond my regular hours of work and was compensated for these extra hours at straight time. Please be advised at the time of the strike, I held the position of Area Manager, Probation and Parole Service, Eastern Region, Correctional Services Division, 2730 Iris Street, Ottawa.

I believe that all hours beyond my regular hours should have been paid at time and 1/2. I also believe that the calculation of overtime hours as set out in the O'Donnell decision ( PSGB. P/0023/96) should also be applied to my rate of compensation. In addition, I believe that I was entitled to shift premiums and standby pay during the strike. While the Ministry initially advised that the issue of compensation during the strike was under review and the Ministry's position may change, it is now quite clear that I must raise the issue through the grievance process.

Mr. David Clayton was the Regional Business Administrator, Eastern Region during the OPSEU strike. He is also a Schedule 6 employee. He filed his grievance on Sept. the 15th, 1998 alleging:

..for the period February 26 to April 1, 1996, I worked well beyond my regular hours of work and was compensated for these extra hours at straight time. Please be advised at the time of the strike, I held the position of regional business administrator, Eastern region, correctional services division. I believe that all hours beyond my regular hours should have been paid at time and 1/2. I also believe that the calculation of overtime hours as set out in the O'Donnell decision(PSGB P/0023/96) should also be applied to my rate of compensation. In addition, I believe that I was entitled to shift premiums and standby pay during the strike. While the Ministry initially advised that the issue of compensation during the strike was under review and that the Ministry's position may change, it is now quite clear that I must raise the issue through the grievance process.

At the outset of the hearing into these matters, the employer brought a motion to dismiss the grievances for not being timely filed. The grievors agreed to proceed with the preliminary motion first, and that depending on the outcome, the merits of the grievances would be addressed at a subsequent hearing day.

The grievors gave evidence to support their position that the grievances were timely and should be heard on the merits. Mr. Clayton testified that he was aware that after the strike ended he was not compensated for overtime at time and a half or for standby pay. Following the strike, he was paid for his overtime at straight time in April 1996. When asked in cross-examination what reason he had for not filing a grievance in April 1996, Mr. Clayton testified that he knew that senior management were reviewing the issue of compensation for managers who worked through the OPSEU strike. He attended meetings where the issue was discussed. He said that to this day he had had no response to his grievance from senior management.

Ms. Blais testified that eight to nine days after the strike ended there was a briefing meeting, and managers were advised that if they worked over 44 hours in a week they would be paid overtime. But there was no information given on the rate of pay or other compensation at that meeting. When she queried this with her supervisor, Mr. Roy, he advised her to “wait and see.”

Ms. Blais received her overtime pay on April 18^th, 1996 and it was paid out at straight time. She questioned Mr. Roy again about whether the managers would be paid time and a half for overtime and he told her that he was still waiting for a decision from the Ministry.

Ms. Blais testified further that she had worked in the Ministry since 1970; she became a manager in 1986. She had both a trust in and loyalty for the Ministry. She said that the Ministry is not known to make decisions in a timely manner. Ms. Blais took a new position with the Ministry of the Attorney General in March 1998. It was not until October 21^st, 1998 when she, amongst others, received an email which reported the decision of the government to pay certain eligible schedule six employees overtime at time and a half that Ms. Blais realized that there would be no compensation for time spent on standby. She filed her grievance on November 6^th, 1998, with the Deputy Solicitor General, Tim Millard. He did not respond to her grievance. Seven months later, in May 1999, Ms. Blais forwarded her grievance to the board.

Mr. Jodhan argued on behalf of the employer that Ms. Blais and Mr. Clayton’s grievances were not timely. He cited the requirement under Subsection 34(1) of the Public Service Act that complaints must be made within 14 days of the grievor becoming aware of the cause for complaint. He relied on Vipari and Johnson and the Ministry of Community and Social Services, P/0003/99 to argue that the board has held that a subjective test must be applied in deciding whether the grievance is timely, and that the board has discretion to consider the reason for the delay. He argued further that the grievors here have not provided sufficient evidence to justify a delay of 16 months in Mr. Clayton’s case and 18 months in Ms. Blais’. Mr. Jodhan noted that for policy reasons - fairness to the employer - the grievances should be dismissed.

Mr. Pickering argued for the grievors that once they both realized that they were not going to be paid for standby, they grieved immediately. He submitted that the evidence was clear that the issue of overtime and premium payments was being addressed by senior management. He relied on a memorandum from Margaret Bodkin, Director of Human Resources, dated November 9, 1998, which announced the decision of Management Board of Cabinet to pay overtime at time and a half for certain eligible employees to support his argument.

He argued further that the grievors knew that the issues were being considered by senior management and that no person in authority had denied the claim for standby. They were of the view that it was not unusual for the extended delay.

DECISION

The grievors in this case clearly filed their complaints well beyond the required time limits under the Act. I am not persuaded that it was only when the overtime payments were announced in November 1998 that Ms. Blais realized that she had a claim for standby. Ms. Blais and Mr. Clayton knew that they had not been compensated for standby when they received other premium payments (overtime) in April 1996. The question is then was it reasonable for them to delay in filing their grievances for 16 - 18 months, respectively? The only reasons given were that they believed the issues were being addressed by senior management and there had been no clear indication that the issue of standby had been determined by the employer. Ms. Blais had been advised initially in 1996 by her supervisor to “wait and see.”

These reasons certainly justify some delay. There is clearly a reluctance for managers to file grievances, especially when they believe senior management are considering their claims. But I am not persuaded that these reasons justify such a significant delay. Unless there is a clear agreement between the parties that the employer is considering the reason for the complaint or claim and no formal grievance need be filed, grievors must preserve their rights by filing a timely grievance.

For the reasons noted above, the grievances are hereby dismissed.

Dated at Toronto this 16^th day of May, 2000.