P/0032/99

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Gordon Campbell

Grievor

• and -

The Crown in Right of Ontario (Ontario Realty Corporation)

Employer

BEFORE

Deborah J.D. Leighton

Vice-Chair

FOR THE GRIEVOR

Mr. Gordon Campbell

FOR THE EMPLOYER

Ms. Lucy McSweeney, Counsel Legal Services Branch Management Board Secretariat

HEARING

April 27, 2001.

Decision

Mr. Gordon Campbell filed a grievance on April 14, 1999 alleging that his assignment to the position of Office Manager Eastern Region, Property Management Division, Ontario Realty Corporation, (ORC) effective November 14, 1995, should have been treated as a temporary assignment. He seeks his moving expenses, incurred when he left Kingston in 1998, including a realtor’s commission legal fees, and one-half month’s salary.

At the outset of the hearing counsel for the employer, Ms. McSweeny, made a preliminary motion to the board to dismiss the grievance as untimely and that the grievance was expressly withdrawn by the grievor in an agreement acknowledged in writing on February 9, 1998.

The parties have agreed on the essential facts in the case. Mr. Campbell was declared surplus on October 4, 1995. On December 15, 1995 he accepted a lateral assignment to the Office Manager position in Kingston, effective retroactively to November 14, 1995. From then until May 1, 1996, when the grievor and his wife moved to Kingston he commuted from Kempville. The employer paid the grievor’s moving expenses. His total relocation costs to move to Kingston were $14, 056.89. In July 1996 Mr. Campbell learned of the government’s plans for further restructuring of the ORC. His future employment seemed uncertain so he wrote to Jean MacLeod, President and CEO of ORC asking that his assignment to the Kingston office be considered temporary. Ms. MacLeod denied the request on October 30, 1996.

Mr. Campbell continued to work as the Office Manager living in Kingston until he sold his house and relocated to Ottawa. The employer agreed to allow Mr. Campbell to continue in the Kingston position and paid his commuting costs from Ottawa. As a condition of allowing the grievor to commute, the employer required him to drop his claim for moving expenses back to Ottawa. The grievor confirmed this in writing on February 9, 1998.

Mr Campbell continued commuting to work in Kingston until he secured a new position with the Ministry of Finance, effective May 3, 1999. He informed his supervisor of his new position on April 13, 1999 and sent a grievance letter on April 14, 1999, complaining that his assignment to Kingston in 1995 should have been a temporary assignment and claiming moving and out of pocket expenses noted earlier.

The employer submitted that the grievance before the board was not timely since it was filed on April 14 1999, 2 ½ years after the grievor received a clear response from Ms. MacLeod in October 1998 denying his request. Counsel cited Scott et al. and the Ministry of Transportation P/0001/96 (Lynk) for the test that the board applies in considering whether a grievance is timely. Section 34 (1) of Regulation 977, passed pursuant to the Public Service Act, provides that a grievance may be forwarded to the board within 14 days of the response of the Deputy Minister or delegate. Counsel asked the board to consider the nature of the grievance in exercising the discrimination to extend the time limits. Finally Ms. McSweeny argued that the grievor had given no adequate reason for the delay.

Mr. Campbell argued on his own behalf that the only reason he accepted the Kingston position after being declared surplus in 1995 was because he was told it was a permanent position. But in July 1996 the government announced that the ORC would be restructured and all management positions were job threatened. Mr. Campbell believes that senior management knew of this restructuring but he was not told about it in 1995. If he had known, he argued, he would not have taken the position in Kingston. It is Mr. Campbell’s view then that the assignment he took in Kingston should have been considered as temporary. Because he and his wife suffered from the uncertainty of Mr. Campbell’s work future, they sold their house in Kingston and moved back to the Ottawa area. It is the expenses from that move that Mr. Campbell wants reimbursed.

Mr. Campbell argued that he brought his complaint to senior management’s attention when he learned of the restructuring. He thought if he filed a grievance in 1996, he would aggravate senior management and he would lose his job. Therefore, he filed his grievance after securing a new position with the Ministry of Finance.

DECISION

In considering whether a grievance is timely, the board must first consider when the incident, or event which gave rise to the complaint came to the attention of the grievor. Mr. Campbell knew of his complaint in July 1996. He put his complaint in writing in August 1996 to Ms. MacLeod. Ms. MacLeod responded on October 30, 1996 denying the grievor’s request to have his assignment in Kingston treated as a temporary assignment. Mr. Campbell did nothing to advance his grievance until April 14, 1999, some 2½ years later. The grievance is clearly filed well beyond the time limit.

The next step to be considered is whether to exercise the board’s discretion to extend the time limit. If the grievor knew of the complaint, but did not file it within the time limits the board must consider several factors: the reason for the delay; the length of the delay; and the nature of the grievance. In previous decisions the board has also considered evidence of prejudice to the employer if the case proceeded.

In this case the delay is significant-2½ years. The only reason given for the delay is that the grievor feared reprisal. However, there was no evidence for the board to find that the grievor’s fear was justified. The nature of the grievance, while important to the grievor, is not one that would warrant the board exercising its discretion. The grievance is for reimbursement of moving expenses. There was some evidence of prejudice to the employer, typical of what occurs when a grievance is filed so late- people who would be needed as witnesses have left the government. While this would not necessarily be enough to justify dismissal of the grievance, I am satisfied that considering all the factors together the grievance must be dismissed as untimely.

Thus, after carefully considering the submissions of the parties I hereby dismiss the grievance.

Dated at Toronto, this 26^th day of July, 2001.