P/0053/93

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

McLuhan

Grievor

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Henry Maeots Vice-Chair

FOR THE GRIEVOR

David Wright, Counsel Ryder, Wright, Blair & Doyle Barristers and Solicitors

FOR THE EMPLOYER

Andrew Baker, Counsel Legal Services Branch Management Board Secretariat

HEARING

February 6, 2002

DECISION ON PRELIMINARY ISSUES

This proceeding relates to a grievance of Mr. McLuhan dated September 12, 1991, as amended by a further submission on September 13, 1991.

Background

Mr. McLuhan was employed in various capacities by the Ministry of Transportation from November 1, 1963 until his retirement at December 31, 1992.

At the time of his hiring, the Ministry employed both professional engineers and engineering technologists in a variety of similar positions within its organizational structure.

The professional engineers in the Ministry hold an engineering degree from a recognized university or post-secondary institution, and they have and hold mandatory membership in the Association of Professional Engineers of Ontario (PEO), the professional institution that governs engineers in Ontario under the auspices of the Professional Engineers Act, R.S.O., 1990, c.P.28.

Engineering technologists neither hold a post-secondary degree in engineering nor do they belong to a statutorily governed institution that regulates their professional activities.

The Crown Employees Collective Bargaining Act S.O. 1972, c.67 (CECBA) did not allow professional employees in the Ontario Public Service (OPS), including those in the engineering occupational module, to engage in collective bargaining. At the same time, a number of employees in the OPS who were classified in the technical occupational modules, were also defined as part of the “managerial and excluded” categories under the CECBA, and were thus also excluded from collective bargaining. The salaries and working conditions of both groups was unilaterally set by the Civil Service Commission.

Upon the introduction, in the mid ‘70s, of the Management Compensation Plan for the OPS, professional engineers were allocated to the PM series (a professional module which included architects, dentists, etc.) and the engineering technologists to the TM series (a technical module which included a variety of engineering support personnel). Within the professional (PM) and technical (TM) modules, employees were given a further letter designation for their occupational group; the engineers were designated in the PEN classification and the engineering technologists were designated in the TEN classification. For example, Project Managers became PEN 17s if they were engineers and TEN 17s if engineering technologists. Similarly, Senior Project Managers became PEN 18s if they were engineers and TEN 18s if engineering technologists.

With the introduction in 1978 of the credentialism policy in the OPS, the Ministry determined which positions specifically required a credential (such as P. Eng.) and those for which such credential was not an absolute necessity. One such position was that of Aggregates Supervisor, which was occupied by Mr. McLuhan, a non-engineer. Mr. McLuhan was advised in a memo from Regional Personnel Officer H. W. McCormack on April 21, 1978 that while he was not a graduate engineer or registered with PEO, it was being recommended that he be allocated, retroactive to September 1, 1976, to the classification of PEN 17 and subsequently to PEN 18 when the position was reclassified.

In a later memo from W. L. Lees, Regional Director, dated January 10, 1983, Mr. McLuhan was advised as follows:

“As you are probably aware, considerable discussion has taken place during the last few years relative to the effects on positions in this Ministry of the Ontario Government’s credentialism policy.

As a result of a review by the senior management of the Ministry, in conjunction with managers at all levels, it has been determined that, although in the past membership in the Association of Professional Engineers in Ontario or in the Association of Ontario land Surveyors has been described as a requirement for your position, such credential is not necessary to carry out its duties and responsibilities.

The effect of this change is that the class allocation of your position must be changed. Only those positions which require A.P.E.O. or O.L.S. can continue to be classified as P-EN (i.e. the Engineering and Surveying Group of the Professional Module). Most positions thus affected will be more properly classified in the Engineering and Surveying Support Group in the Technical Module (T-EN).

As the salary maximum of the Technical Module at each level is lower than that of the Professional Module the salary treatment applied to employees affected by such a change is referred to as ‘red-circle’ application. That is, the employee is permitted to receive normal merit increases up to and including the maximum of the classification formerly held by him until the maximum salary of the new classification exceeds (through revisions, etc.) the maximum of the former class.

Representation is being made by the Deputy Minister to the Civil Service Commission to “grandfather” employees affected by this change. This proposal would essentially hold the incumbent in a ‘de-credentialized’ position at the P-EN classification while he/she remains in that position and also if he/she was to move laterally into a similarly ‘de-credentialized’ position. Any future assignment to a position carrying a higher classification however would result in transfer to the classification of the higher level position.

Nonetheless, there is no guarantee that the Civil Service Commission will agree to the above proposal, as other ministries have already proceeded in the manner prescribed in the Manual of Administration (that is, “red-circle” application).

No immediate action is being taken to reclassify you, pending them results of the presentation to the Civil Service Commission.

You will be further advised when the Civil Service Commission decision is known.”

In fact, Mr. McLuhan remained in the salary classification of PEN 18 until April of 1991, receiving the same salary as professional engineers in the PEN 18 classification.

In the meantime, the OPS had published a policy in its Manual of Administration that acknowledged that market demands for various occupations may change over time and necessitate adjustments to pre-established salary cycles in order to maintain appropriate staffing and recruitment at operational levels. The provincial government requested Harvard Law School Professor Paul Weiler to review the determination of salaries and working conditions for the OPS’s professional employees. In his report of January, 1988, he recommended that professional employees be permitted to engage in collective bargaining. Such recommendation was accepted by the Ontario government which agreed to recognize the Association of Professional Engineers of Ontario (PEGO) as the exclusive bargaining agent for the engineers in PSO.

On April 3, 1991, Mr. McLuhan was advised in a memo from Bev Morning, Head of Human Resources Services for the Northern Region, that since he did not qualify for PEGO membership, he was being reclassified on a personal basis from PEN 18 to PRP 18, retroactive to January 1, 1990, with corresponding salary increases. The two classifications had been at the same salary level but incumbents in PEN 18 had had their salaries frozen from January 1, 1990, pending the outcome of collective bargaining, whereas employees in the PRP 18 designation (Non-Professional Resources Planning Module) had received increases in both 1990 and 1991. It is these increases that were retroactively issued to Mr. McLuhan upon his reclassification.

Subsequent bargaining between the Employer and PEGO failed to reach agreement on salaries and the issue was referred to interest arbitration. In June of 1991, Arbitrator N. Dissanayake released a ruling that awarded a substantial pay increase, retroactive to January 1, 1990, to the professional engineers represented by PEGO. Such increase brought the level of salaries for PEN 18 (the PM 18 salary classification identity was changed to PBE 8, designating Professional Bargaining Employees, after 1990) to a substantially higher level than PRB 18. Therein lies Mr. McLuhan’s complaint.

Mr. McLuhan alleges that for the period from 1976 to 1991, he was compensated the same as professional engineers. That changed when the PEGO award was issued. He contends that a term and condition of his employment, that of maintaining a salary equal to professional engineers, has been violated and he seeks retroactive compensation accordingly to the date of his retirement.

The Employer argued that the remedy sought constitutes a change in salary classification of the grievor and as such is beyond the authority of this Board. Further, there were objections to the timeliness of the grievance.

The Hearing date of February 6, 2002 was taken up with submissions of the parties relating to such preliminary issues.

Jurisdiction

The Employer argued that the Board should dismiss the grievance in accordance with Rule 2 of the Rules & Practice Notes of the Public Service Grievance Board (PSGB) which states:

“Where the Board considers that a grievance does not make out a case for the orders or remedies requested, even if all the facts stated in the grievance are assumed to be true, the Board may dismiss the grievance without a hearing or consultation.”

The Employer contends that the Board is without jurisdiction to order the remedy sought, which would in effect constitute a salary reclassification.

The Employer substantially confirmed the facts as described by the Grievor. Mr. McLuhan performed the job of Soils Engineer or Soils Supervisor from 1983 until his retirement at the end of 1992. He was paid the same salary and benefits as credentialed engineers performing the same or largely similar duties until 1991, when he was transferred from the Professional Module to the Non-Professional Resources Planning Module (PRP) with no loss in pay or benefits.

Mr. McLuhan was advised of the above change in the letter from Bev Morning dated April 3, 1991, but did not grieve until his letter of September 12, 1991 to J. McDougall, Head, Geotechnical Section, Northern Region. His letter reads as follows:

“ With the recent PEGO award I find that my personal classification of PRP 18 does not have a salary range identical to that of the PEN series. If you refer to Bev Morning’s Memorandum of April 3, 1991, Attachment #1, it states that I was being reclassified on a personal basis to a classification with a salary range identical to that of the PEN series. The reasoning for the reclassification is spelled out in this memo.

In Attachment #2, a Memorandum from H. McCormack, Regional Personnel Officer, dated 1978-04-21, I was advised that I was being recommended to be put into the PEN series effective September 1, 1976 even though I wasn’t a Graduate Engineer or registered with the A.P.E.O. as a Professional Engineer.

In Attachment #3, a Memorandum from J. Percy Manager of Engineering and Right-of-Way dated 83-02-25 I was rotated to the Soil Engineer’s position with no effect on my classification or salary.

From September, 1976 to April 3, 1991 I was compensated the same as a Professional Engineer. Then I was reclassified to a classification that was to compensate me with a salary identical to the PEN series. A PRP 18 doesn’t do this. At the time I felt the reclassification was unfair and unjust due to its retroactivity. The full impact of the reclassification was not realized till the announcement of PEGO award on September 4, 1991.

I am asking that I receive a personal classification that gives me the same compensation as that awarded to the Professional Engineers of the Government of Ontario on September 4, 1991 including retroactivity. Something that was being done since September 1976.

I request that this matter be treated as a grievance and as such be referred to the Deputy Minister for a decision in writing within twenty-one days of it’s presentation to her.”

Mr. McLuhan addressed a second letter to Mr. J. McDougall the following day, September 13, 1991 which read as follows:

“Further to memo of September 12, 1991 I have since had the opportunity to view the Arbitration Award between the Government of Ontario and the Association of Professional Engineers of the Government of Ontario.

Page 19 states “retroactive payments shall be payable to all employees in the classifications in question on or after January 1, 1990". I was in a classification in question (PEN 18) and as such am eligible for the retroactive payment.”

The grievance, as amended by the second letter, was forwarded to the Public Service Classification Ratings Committee (CRC). By mutual agreement of the parties, the grievance was put aside pending outcome of a similar grievance (Shaw et al) which was subsequently dismissed by the CRC. The dismissal in turn was upheld on appeal review.

The Employer asserts that Mr. McLuhan failed to pursue his grievance before the CRC (now dissolved) but rather claims to have transferred it, without any new circumstances, to the PSGB, even though the Employer had refused his request to do so. The Employer contends that there were no new circumstances to differentiate the grievance at that time from the original grievance.

The Employer argued that there is no authority to transfer what it termed a classification complaint to the PSGB. Further, if the grievor was now alleging a violation of policy or practice, that is a new grounds and constitutes a new grievance. The changing of the grounds for the grievance after two and one-half years is untimely and prejudices the Employer. The Employer may well have dealt differently with the grievance had its premise been identified as terms and conditions of employment as opposed to classification.

The Employer referred to a similar case, Scott et al vs. Ministry of Transportation (MOT), heard by this Board (P/0001/96). In that case, a group of employees made a similar allegation of violation of terms and working conditions, i.e. that the grievors were not classified and paid the same as credentialed engineers performing similar duties. Arbitrator M. Lynk in his award dated March 17, 1997 wrote on pages 20 and 21:

“...this Board has accepted jurisdiction over salary-related grievances at least since the Kanga decision in 1984.

“...While this Board has also refused jurisdiction on several occasions, I find the reasoning in the majority line of authority that accepts jurisdiction in principle over salary-related grievances to be more persuasive and compelling; to be more in line with the jurisdictional scope of the governing legislation and, in particular, as “working conditions and terms of employment” as being interpreted by judicial and labour board rulings; and to be more in harmony with the underlying social and legislative purposes of the Act.

“...Having come to the general conclusion that this Board does have jurisdiction over salary-related grievances, I must also state that I do not believe this jurisdiction to be open-ended in scope. This Board does not have a general power to review all aspects of salary-related decisions by the employer. Rather, I read the direction provided by this Board’s past case law on the limited sphere that will be given to such grievances to be both prudent and appropriate: Bertolo (supra); Amirault (supra). I understand these cases to be stating that considerable discretion is to be left in the hands of the employer and its responsible bodies to determine the scope of its salary and remuneration policies and practices. An employee within the coverage of the Act may only challenge the decisions of the employer on salary-related matters is she or he is able to anchor the complaint on at least one of the following two grounds:

(i) The salary-related decision of the employer is premised on discriminatory or arbitrary conduct, or is in bad faith; or

(ii) The salary-related decision of the employer is in violation of the governing legislation, or a policy, guideline, practice, etc. that would have the legal force of being part of the employment relationship.”

The Employer next cited the A. McConnell et al vs. MOT case (P/0051/93), heard by D.J.D. Leighton of this Board. This case involved professional engineers who had been reclassified to the Senior Management Group as of January 1, 1991 and thus were not represented by PEGO. Again, the PEGO arbitration award led to a greater salary for PEN 19 and PEN 20 than their credentialed supervisors in PEN 21. Here also the argument was that in the past the policy of paying higher classifications a certain percentage more than the one below it had been consistently applied and that it formed part of the working conditions and terms of employment of the grievors. On page 14 of her award, dated February 20, 1998, Arbitrator Leighton wrote:

“...it is clear from the earlier cases that salary compression alone is not something that this Board can review. That is, the Employer is right that this Board has no jurisdiction simply to review the salary range for a classification, to assess whether given responsibility and requirements of the job it is being paid adequately. This is a true classification grievance for which the Board has no jurisdiction. Section 4 of the Act gives the Civil Service Commission the authority to recommend classifications and salary ranges to Cabinet.

However, where there has been an allegation that there has been a breach of a working condition or term of employment - in this case, that a policy which formed a working condition or term of employment has been breached, the Board must adjudicate.”

It was the Employer’s position that the underlying premise of the grievance had changed and should be disallowed. Further, the Memorandums put forward failed to establish a policy or practice having legal force, and lastly that the Board lacked the jurisdiction to order the remedy sought. The Board was referred to the case of Shaw et al vs. MOT before the CRC (C/0050/92) where the essence of the grievance was salary relationships rather than classification per se. The CRC ruled in its decision dated January 23, 1993, that it lacked the jurisdiction to set new classifications or salaries and dismissed the grievance as inarbitrable.

The Grievor contends that memos over the years granting him the same salary as credentialed engineers constitute a term and condition of employment that was adhered to for fifteen years. When notified of his transfer to a different classification, he did not complain because he had been advised that the salaries were the same in the two classifications. Upon the release of the PEGO award he realized that such would no longer be the case and he filed a grievance, dated September 12, 1991, amended by his letter of September 13, 1991. In a memo dated September 30, 1991 from J.I. McDougall for the Employer, the receipt of his two memos was acknowledged and he was advised that they would be forwarded to Staff Relations “for appropriate consideration”.

He was advised in a letter dated November 8, 1991 from M. Smeaton, Manager of the Employee Relations Office, that his grievance was denied. As the time limits for responding to Mr. McLuhan’s grievance had been passed by November 1, 1991 he forwarded his grievance to the Civil Service Commission that date, asking for a referral to the CRC for a hearing. A year later, Mr. McLuhan was advised by a memo dated November 10, 1992 from Employee Relations Policy Advisor P. Codner that the Employer would be raising a preliminary objection that the grievance was not arbitrable and that the CRC does not have jurisdiction to hear the grievance. The Employer was asking the CRC to hear arguments on the preliminary objection only, to prepare a written decision prior to hearing merits of the case. Within two weeks thereafter the parties agreed to adjourn the matter to enable them to review another award of the CRC in a similar matter which had not yet been heard (the Shaw case).

On June 23, 1993 the Grievor’s counsel wrote to Mr. D. Jarvis, counsel for the Employer, to advise that Mr. McLuhan’s grievance was somewhat different from that filed by Shaw in that Mr. McLuhan was alleging to have an agreement to have a parallel classification to the PEN series. The grievor was therefore prepared to accept the Employer’s view that the CRC lacked jurisdiction and was prepared to refer the matter to the PSGB for resolution. Mr. Jarvis replied in a letter dated August 4, 1993 that the Employer was not in agreement to his proposal but was still objecting to the CRC’s jurisdiction to hear the grievance. After a delay of approximately two months due to a mild heart attack suffered by Mr. McLuhan, application was made by his counsel on October 14, 1993 to the PSGB for a hearing. (Nevertheless, the matter also remained adjourned before the CRC pending judicial review of the Shaw award, which was released December 2, 1994.The CRC ceased to exist April 20, 1995, not having heard the McLuhan matter.)

The Grievor’s counsel also made reference to the Scott case award of July 7, 1998 (P/0001/96) wherein Arbitrator M. Lynk of the PSGB wrote:

“...the grievors have to establish, in the absence of an express employment right, that the basis of the right they are claiming has been breached by their employer has in fact been brought into legal existence by the employer through the manner of its practice or conduct.”

The Grievor contends that memos from the Employer over the years establish a right regarding term and condition of employment and that the Board should not at this time attempt to decide on the merits of such argument but recognize that as long as such contentions are made, it has jurisdiction to proceed to determine the merits of such contentions.

Faced with a similar argument from the Grievor’s counsel in the case of J. Gleason vs. MOT (P/0040/92), Arbitrator D.J.D. Leighton of this Board wrote in her award dated February 20, 1998 as follows:

“However, where there has been an allegation that there has been a breach of a working condition or term of employment - in this case that a policy which formed a working condition or term of employment has been breached, the Board must adjudicate. This is consistent with prior decisions of the Board which held that salary compression grievances without further allegation of a breach of working conditions either by bad faith etc. or violation of a policy etc. are not arbitrable. Salary compression itself - no matter how it occurs - would not be arbitrable if there was no allegation of bad faith, discrimination, arbitrariness, breach of the Act, the regulations, a policy or past practice.

Although at first blush it might appear that Mr. Gleason’s complaint is a “classification” grievance, it is not. The Grievor is not simply asking the Board to review the Employer’s decision to set appropriate pay levels according to qualifications and job responsibility. Counsel argued that evidence would be presented that showed a policy in place in 1990, which is part of the Grievor’s working conditions, and that the Employer had breached it. Whether or not the Grievor here is able to prove that there was such a policy in effect in 1990 and that it was breached is a question of the merits of the case, which can only be decided after hearing the evidence. Thus I have concluded that the Board must take jurisdiction to hear this case.”

Counsel also referred the Board to the A. McConnell et al vs. MOT case (P/0051/93) where Arbitrator D.J.D. Leighton used the same reasoning cited above to rule in her decision of February 20, 1998, that this Board had jurisdiction to hear a case wherein the Grievor had alleged a breach in working conditions, without having heard evidence on the merits of the case.

Ruling

Kanga established that salary grievances are within the Board’s jurisdiction to review complaints alleging a breach of working conditions or terms of employment. Since then, the Board has taken jurisdiction to adjudicate salary disputes (eg. Amirault). It is clear from earlier cases that the Board has no jurisdiction to simply review salary ranges for classifications for the purpose of assessing whether the job is being paid adequately. Such would be a true classification grievance for which the Board has no jurisdiction. Section 4 of the Act gives the Civil service Commission the authority to recommend classifications and salary ranges to Cabinet. However, here we have an allegation that there has been a breach of a working condition or term of employment. Mr. McLuhan alleges that the Employer through written communications and actions over the years has established a policy of paying him the same as credentialed engineers and that that policy or practice has been breached. In McConnell Arbitrator Leighton writes;

“Salary compression itself - no matter how it occurs - would not be arbitrable if there was no allegation of bad faith, discrimination, arbitrariness, breach of the Act, the regulations, a policy or past practice.”

Arbitrator Leighton went on in McConnell to write;

“Although at first blush it might appear that Mr. McConnell’s complaint is a “classification” grievance, it is not. The Grievor is not simply asking for the Board to review the Employer’s decision to set appropriate pay levels according to qualifications and job responsibility. Counsel argued that evidence would be presented that showed a policy in place in 1990, which is part of the Grievor’s working conditions, and that the Employer had breached it. Whether or not the Grievor here is able to prove that there was such a policy in effect in 1990 and that it was breached is a question of the merits of the case which can only be decided after hearing the evidence. Thus I have concluded that the Board must take jurisdiction to hear this case.

Further, I am of the view that it is premature for me to consider the Employer’s argument that such a policy would amount to a fetter of the discretion of the Civil Service Commission. Although this point was not fully argued before me, I do not believe the Grievor here is suggesting that the Employer could never change a policy, such as compression, rather the argument is that when the policy is in existence it ought to be consistently and fairly applied. So too, it is premature to address the argument that this Board can not make an appropriate order to compensate the Grievor, should I find that there has been a breach of working conditions.”

Similarly, Mr. McLuhan is not grieving to have the salary range of the classification to which he was transferred changed but rather that a policy or practice that he receive, on a personal basis, the same compensation as Professional Engineers, has been breached. Whether or not the actions and/or words of the Employer have established such a policy or practice, as he alleges, remains to be argued and decided by this Board. Likewise, whether this Board can make an appropriate order of compensation should it find that there has been a breach of working conditions remains open to argument.

As to the Employer’s arguments that the present grievance is somehow a new one in that Mr. McLuhan was introducing an allegation of a policy or practice and that the original grievance had been abandoned before the CRC, it is clear from the written communications between the parties that Mr. McLuhan differentiated his grievance from Shaw et al. In response to the Employer advising him of its intent to object to the jurisdiction of the CRC, his counsel responded that Mr. McLuhan was alleging he had an agreement to have a parallel classification to the PEN series, and that if the CRC lacked jurisdiction, he wished to proceed to the PSGB. The Employer, while denying jurisdiction of the CRC, also refused to give its consent to having the matter come before the PSGB, without Mr. McLuhan filing such grievance in accordance with applicable statutory and regulatory provisions. After Mr. McLuhan nevertheless addressed the matter to the PSGB, the Employer is in turn arguing the jurisdiction of this Board. Clearly Mr. McLuhan did not abandon his grievance although he did change its venue when he realized that his was not a typical classification grievance but rather one that was alleging a violation of a term or condition of employment. The matter has remained outstanding between the two parties since the original filing of his complaint with the Employer.

I therefore find that the Employer’s motion to deny a hearing of the merits of Mr. McLuhan’s grievance for lack of jurisdiction by this Board must fail and is hereby denied.

Timeliness

The Employer alleges that time limits have been substantially breached without good cause and that the Employer has thereby been prejudiced in preparing its response. Mr. McLuhan was advised of his reclassification in April of 1991 and did not grieve until September of 1991. At that time the grievance was forwarded to the Classification Rating Committee for a hearing. Mr. McLuhan’s hearing was adjourned until the Employer had reviewed the award in a similar case (Shaw et al). Mr. McLuhan’s hearing was further delayed pending Judicial Review of the Shaw award. Mr. McLuhan did not continue to pursue his grievance before the Classification Rating Committee but rather requested that it be transferred to the Public Service Grievance Board. The Employer opposed the request and confirmed its willingness to hold his grievance in abeyance pending outcome of the judicial review. Nevertheless, Mr. McLuhan forwarded his grievance to the PSGB in October of 1993.

The Employer contends that the filing of the grievance with the PSGB in October of 1993 regarding a reclassification that occurred in April of 1991 is untimely and prejudicial. Reference was made to Arbitrator M. Lynk’s award dated March 17, 1997 in the Scott et al vs. MOT case (P/0001/96) wherein he wrote:

“I adopt the analysis adopted by previous panels of this Board in Arkelian, Adesserman and Amirault that the party seeking to extend the time limits beyond the directory time limits set out in Section 44(1) will have to satisfy the adjudicating panel that (i) the reason for the delay is bona fide; (ii) the length of the delay is not unreasonable, oppressive or against the industrial relations penchant for the timely articulation and resolution of workplace differences; (iii) the nature of the grievance is such that the more serious the complaint, the greater the requirement of industrial justice is to have a grievance determined on its merits; and (iv) the delay would not cause undue prejudice to the other side in its ability to fairly mount a case.

Applying these factors to the case at hand, I readily accept the Ministry’s submission and the grievors’ admission that the delay has been extraordinarily lengthy. While I accept that the grievors may have attempted to keep the issue active by pursuing informal, internal avenues, the uncontradicted evidence is that they knew in 1991 that the pay scale was widening between engineers and non-engineers in the Ministry in the aftermath of the Dissanayake interest award, and they had in fact initiated steps to articulate their concerns, first through a position paper, and then through Mr. Scott’s grievance to the CRC in March 1992. This grievance was abandoned in the aftermath of the Shaw decision, and the essence of that grievance was then resurrected in its present form to this Board in October 1995. I find that, applying the standard tests adopted by arbitration boards respecting the requirement for the timely advancement of workplace differences, I should not exercise my discretion to permit this grievance to advance on these grounds. Four plus years after an event that was continually within the knowledge of the grievors is beyond any contemplation of a reasonable time period to permit the filing of a grievance and the claiming of a retroactive remedy.”

The Employer also referred to the PSGB case of Bruce Kroeger vs. Ministry of the Solicitor General and Correctional Services (P/0060/98). In that case the grievor discovered grounds existed for a grievance after a period of six years. Arbitrator J.A. Willes in his award dated March 18, 1999 wrote as follows:

“He may very well have only discovered his rights recently, but in waiting so long to do so, he placed the Employer in the position where a proper defence to any claims may be difficult, if not impossible, given the dispersal of management members that may have evidence to offer. The time delay also raises the difficulty of individuals to accurately recall events that happened six years ago, particularly when they had no reason in the interval to keep their memories of the events fresh in their minds.”

Counsel for the Grievor argued that the grievor filed a grievance in September of 1991, within 8 days of learning of the PEGO award whereby he realized that the agreement he thought he had with the Employer to have his wages maintained at the same level as credentialed engineers was breached. Therefore he was not out of time limits in filing a grievance although he was in referring it the PSGB. His grievance was referred to the CRC in November of 1991 and was held in abeyance, through mutual consent of the Employer and the Grievor, pending outcome of the Shaw case and its subsequent appeal.

For the first twelve months, the Grievor was not advised that the CRC was not the place to be before with his dispute. Then he was advised by a letter dated November 10, 1992 from Mr. Paul Codner, Employee Relations Policy Advisor for the MOT, that the Employer would be arguing that the CRC does not have jurisdiction to hear the grievance. A further seven months passed, at which point Mr. McLuhan’s counsel wrote to The Employer’s counsel, on June 23, 1993, pointing out that Mr. McLuhan’s grievance was different from that of Mr. Shaw et al in that Mr. McLuhan was alleging he had an agreement to have a parallel classification to the PEN series. He was therefore prepared to accept the Employer’s view that the CRC did not have jurisdiction and requested the Employer’s agreement to refer the matter to the PSGB. Mr. Jarvis replied approximately six weeks later, denying consent to refer the matter to the PSGB but confirming that if the matter came to a hearing at the CRC the Employer would still be raising a preliminary objection that such Committee lacked authority to hear the grievance. Two months were then lost due to Mr. McLuhan experiencing a heart attack. Immediately thereafter, Mr. McLuhan made his submission to the PSGB.

The Employer, even after the matter had been referred to the PSGB, had not objected to timeliness until a further twenty months had passed, when Mr. Jarvis, in a letter dated July 7, 1995, notified the Grievor’s counsel, Mr. D. Wright, that the Employer would be raising a preliminary objection of untimeliness. The delay in bringing the matter to the PSGB pales in light of the total time that this dispute was ongoing with the Employer.

The Employer is not prejudiced as the cause was live before the CRC and then the PSGB. It’s still the original grievance, not a new one.

In summary, Mr. McLuhan, a non labour relations expert, thought the matter should go to the CRC until the Employer eventually objected. Hence the reason for the delay in presenting his grievance to the PSGB is understandable.

As to the nature of the grievance, it has not just salary but also significant pension benefit implications. In that sense, the loss continues after a period of nine years.

Lastly, the Employer has not mounted a case for its argument that it has been prejudiced by the delay.

All delays after October of 1993 were not of the Grievor’s doing.

Counsel for the Grievor referred the Board to a number of cases in support of its arguments. In G. Kitzul vs. Ministry of the Solicitor General and Correctional Services, a case before this Board (P/0008/93) where the employer asked the Board to conclude that a seven month delay if filing a grievance was unreasonable and prejudicial to the employer, Arbitrator S.M. Walter in his decision dated October 10, 1995, overruled the employer’s objection and wrote as follows:

“The evidence is indisputable that Mr. Kitzul failed to meet the fourteen day limit specified in s. 44 of the Public Service Act.

In the board’s judgement, s. 44 (1) of the Public Service Act is “directory” and not “mandatory”. Were it otherwise, s. 44 (1) would surely require that “Any person shall present a complaint...” rather than “may present a complaint...”.

There are no words (as may be found in collective agreements) that clearly indicate that failure to grieve within fourteen days will result in abandonment of the grievance. The board’s interpretation is bolstered by the discretionary authority found in s. 55 which allows for extension of time limits. Clearly, the legislation has provided the board with the latitude and jurisdiction to judge each case where breaches of time limits are alleged.

“...Given the discretionary powers of the board, as contemplated by the legislation, the board is not convinced that the employer’s concerns about prejudice outweigh the right of the grievor to a fair hearing.”

The case of M. Amirault vs. Ministry of the Solicitor General and Correctional Services (PSGB, P/0028/94) involved a delay of two and one-half years. In response to the employer’s objection of timeliness Arbitrator M. Lynk wrote on December 12, 1995 as follows:

“...Accordingly, since labour and employment acts in this province are generally deemed to be remedial in nature, provisions in the legislation that regulate its operations are to be interpreted in a liberal manner consistent with the purposes of the statute, unless there is a specific direction otherwise. This approach would certainly apply to a gateway provision such ads s. 44, which governs the access to the remedial forums established to adjudicate grievances under the Act.

...It is noted that s. 44(1) uses the phrasing “...becoming aware of the complaint.” I take this to mean that there is a predominantly subjective analysis to be applied when determining whether a grievance has been filed within the time limits. The analysis would seek to determine when knowledge of the complaint would have crystallized in the mind of the grievor. This would be consistent with the purposes of the Act and its regulations, which are to provide employment rights to management employees of the Ontario public service, together with a forum to adjudicate these rights.

...In the final analysis the underlying question must always be whether it is possible to hold a fair hearing in light of the delay in initiating or advancing the grievance.

...I am satisfied that Ms. Amirault did not sit on her rights in the period of time between her promotion in November 1992, the filing of her complaint in July 1994 and the filing of her grievance in October 1994.

...Nor did the Employer present any evidence that it was prejudiced by the delay in time. Accordingly, I am not persuaded that the delay by Ms. Amirault in initiating her complaint and her grievance would impair the ability for a fair hearing to be held.”

The Board was urged to exercise discretion and permit the hearing of the grievance.

Ruling

Having found that the grievance before this Board is not a new one but rather the original complaint of the Grievor, the time issue reduces to that of the timing of the Grievor’s original submission.

It is reasonable to accept the Grievor’s contention that as he had received a salary identical to credentialed engineers for a period of approximately fifteen years, even as credential requirements and classifications were changed, he anticipated the continuation of such practice. When his assumption, the merits of which are yet to be debated and decided, proved wrong upon learning of the PEGO interest arbitration award, he grieved.

Even accepting the argument that he should have realized that his reclassification would likely lead to a salary in the future that was either higher or lower than the negotiated PEGO rate, which had not yet then been established, the delay of approximately five months after his reclassification in documenting his complaint to his employer has not been shown to have prejudiced the Employer. Similarly, the longer delay in bringing the matter before the PSGB resulted largely from the mutual agreement of the Employer and Grievor to postpone the CRC hearing. Only after the Employer made its intention to object to the jurisdiction of the CRC did the Grievor determine that the PSGB was the more appropriate arbiter. However, the Employer did not establish a case of prejudice to itself as a result of such untimely submission and remained a party continuously to the outstanding dispute over Mr. McLuhan’s salary.

As the Grievor is retired and the matter at issue has implications for his retirement benefits, the alleged loss is significant and ongoing.

My finding is that the delays were not significant ones; the causes were bona fide; the nature of the grievance is such that it has significant and ongoing monetary implications and the Employer has not made a case that it has been prejudiced by the delays.

For all of the above reasons I find that I should exercise my discretion in allowing extended time limits to hear the merits of this grievance. The Employer’s motion to dismiss the grievance for untimeliness is therefore denied.

Dated at Toronto, this 19th day of March, 2002.