P/0019/99

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

McFadden

Grievor

• and -

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

Employer

BEFORE

John A. Willes

Vice-Chair

FOR THE GRIEVOR

Tim McFadden

FOR THE EMPLOYER

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

HEARING

December 16, 1999.

Decision

The grievance in this matter relates to a demand for payment of stand-by compensation by the Grievor, Tim McFadden, a former Co-ordinator of the East Middlesex Detention Centre Institutional Crisis Intervention Team. The Grievor’s demand for payment was rejected by the Employer, and on May 20, 1999, the Grievor filed a grievance with the Public Service Grievance Board that reads as follows:

“May 20, 1999

Met with Dept. Supt. Murray Laird in South Hall Board Room, Andy Shepherd present.

Informed Mr. Laird that I am requesting compensation for wearing a pager from the time frame of Nov. 1, 97 until Sept. 22, 98.

Even though my employer Mr. Lockhart had informed me that I would not be compensated for wearing the pager I feel that I should be.

Mr. Laird asked when I became aware of this complaint I informed him that after my removal from the ICIT Program 23 Apr I had time to reflect and that is why I am making this complaint.

Compensation requested 5384 hours times 50% of hourly rate equals 67,999.92.”

When the parties could not resolve their differences, a hearing was scheduled by the Public Service Grievance Board for December 16, 1999. At the outset of the hearing, Counsel for the Employer raised a preliminary objection concerning the timeliness of the filing of the grievance.

According to the facts of the case, which are for the most part not in dispute, the Grievor became a member of the Institutional Crisis Intervention Team in 1981, and in 1985 was promoted to the rank of Operational Manager. The same year, he was designated as an ICIT Co-ordinator.

In 1997, the Grievor approached his Employer and discussed the idea of using a pager in order that he might be promptly notified of any disturbances in the institution. The Grievor’s Employer agreed with the suggestion, but advised the Grievor that he would not be entitled to any extra compensation for wearing the instrument. The Grievor apparently did not question the matter of no compensation, and carried the pager until September 22, 1998. The Grievor was removed from the program on April 23, 1999, and a few weeks later filed his grievance, claiming compensation for the period of time he carried the pager.

Counsel for the Employer submitted that the pager was not a part of the Grievor’s job description, and others in similar positions did not carry a pager. Counsel stated that the Grievor was made aware that no compensation would be given for wearing the pager, as his on-call or standby status did not change because he possessed a pager. Counsel for the Employer argued that a pager was made available at the Grievor’s request, and if he did not agree with his supervisor’s statement that he would not receive any extra compensation for wearing the pager, he was obliged to file his grievance at that time, and not some 18 months later.

Counsel for the Employer submitted that the grievance was untimely as it was filed beyond the 14-day time limit for filing grievances under Regulation 977 of the Public Service Act. In support of her argument, Counsel for the Employer cited: P.S.G.B. P/0014/95 J. Lay and The Crown In Right Of Ontario (Ministry of the Solicitor General & Correctional Services).

The Grievor stated that he did not file his grievance at an earlier time as he expected that the Employer would eventually offer compensation in return for wearing the pager. He conceded that wearing the pager was not a job requirement, but ‘being readily available’ was a part of his job requirement. His position was that the Employer provided the pager and should be obliged to compensate him for wearing it.

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This Board has carefully reviewed the submissions and arguments of the parties with respect to the reasons for the lengthy delay in filing. The time limits specified in Regulation 977 for the filing of grievances is 14 days, subject to the discretion of the Board to extend time limits where the circumstances and the interests of natural justice warrant an extension. The Grievor in this case was made aware that the Employer was not prepared to offer him extra compensation for wearing the pager when the pager was supplied in November of 1997. If he was unhappy with the Employer’s decision at that time, he was free to file a grievance. From the Grievor’s own submissions, the Employer did nothing to suggest that compensation might be forthcoming in the future. Counsel for the Employer stated that at no time did the Employer indicate that any payment would be made, and was consistent in its position in November 1997 and later in 1999 when the Grievor raised the issue.

From the submissions and arguments of the parties, this Board has no evidence before it of extenuating circumstances that would justify an extension of the time limits for the filing of the grievance, and this Board must accordingly decline to exercise its discretion to extend the time for filing.

The grievance is therefore dismissed as untimely.

DATED AT TORONTO THIS 20^th DAY OF JANUARY 2000.