P/0046/01

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Kidston

Grievor

• and -

The Crown in Right of Ontario (Management Board Secretariat)

Employer

BEFORE

Henry Maeots

Vice-Chair

FOR THE GRIEVOR

Hamish Kidston

FOR THE EMPLOYER

Meredith Brown, Counsel Legal Services Branch Management Board Secretariat

HEARING

March 4, 2002.

Decision

This proceeding relates to a grievance of Mr. Kidston dated August 27, 2001.

Background

The facts of the case are undisputed. Mr. Kidston joined the Ontario Public Service (OPS) on May 17, 1999 as a Labour Relations Intern in the OPS Internship Program on a series of two consecutive twelve month contracts.

The number of employees to be terminated by the OPS at or about the time of the expiration of Mr. Kidston’s contract, May 18, 2001, was such as to invoke the group termination provisions for notice under the Employment Standards Act (ESA), R.R.O. 1990, Reg. 327, s. 4. Mr. Kidston was therefore advised in a letter dated February 20, 2001 from the internship program manager, Mr. Liborio Campisi, as follows:

“As you are aware, the objective of the Ontario Internship Program is to recruit interns into the Ontario Public Service and to retain them within the organization. The experience, knowledge and skills gained through your internship rotations should put you in a good position to apply for the many opportunities available in the OPS.

To support you in your OPS job search, we will be marketing 1999 interns as a well qualified applicant pool to managers. If you choose to participate, we will post your resume on Manager’s Map, an intranet website available to all OPS managers. We will also be providing you with an opportunity to further develop key competencies in a two-day workshop on conflict resolution in the workplace. This course will help enhance your communication and mediation/negotiation skills. Details of these initiatives have been provided to you.

If you are not successful in obtaining a new appointment to a classified or unclassified position prior to the expiry of your contract on 05/17/2001, this letter will serve as 16 weeks written notice as required by the Employment Standards Act.

Nevertheless, we will continue to post your resume on Manager’s Map following your contract expiration, so that you may continue to be considered for other opportunities which may arise.

In the weeks to follow, we encourage you to intensify your OPS job search. Please do not hesitate to contact either myself, or one of the OIP consultants if we can be of any assistance to you.”

The letter was delivered to Mr. Kidston’s office by means of intergovernmental mail. Mr. Kidston acknowledged receipt of the letter.

Mr. Kidston worked the twelve week period subsequent to the notice and prior to the expiration of his contract. After an exchange of letters after May 18, 2001, Mr. Kidston received a further 4 weeks’ pay on July 13, 2001 as the remainder of his sixteen week notice entitlement.

On August 27, 2001 Mr. Kidston addressed a grievance letter to Kathryn Bouey, Deputy Minister of MBS. It read as follows:

“Pursuant to Section 34 of Regulation 977 of the Public Service Act, I am grieving management’s failure to provide me with proper written notice of termination for my employment which ended May 18^th 2001. Under subsection 57(2) of the Employment Standards Act and subsection 4(c) and 8(1) of Regulation 327 of the Act, I am entitled to 16 weeks’ notice of termination in writing which shall be served personally or by registered mail.

As a remedy I want to be made whole, namely my full notice period entitlements, including pay out of salary and vacation credits, and continued contribution to the Public Service Pension Plan for the 16 week period beginning on May 19^TH 2001 and ending on September 8^th 2001.

I have corresponded with Mr. Liborio Campisi, Manager, Ontario Internship Program, in June and July to request that he rectify the situation. As you can see in the attached letters, my situation has not been remedied, and Mr. Campisi has not even responded to my last request of July 20^th 2001.

Your prompt attention in this matter is appreciated.”

Before hearing the merits of the grievance, Meredith Brown, Counsel for the Employer, brought a motion to dismiss the grievance for not being timely filed.

She argued that Mr. Kidston, as a Labour Relations Intern with nearly two years of experience, should have been well aware of Regulation 977, sec. 34.1 of the Public Service Act which provides that a person 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.

She contends that the grievor was notified on February 20, 2001 of his forthcoming termination and corresponding notice and other provisions but failed to grieve until August 27, 2001.

She referred to Arbitrator D. Leighton’s decision in Johnson & Vipari vs. Ministry of Community and Social Services (PSGB P/0003/99) on November 8, 1999 in which she wrote:

“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.

...The need to be fair to grievors must be balanced against a need to be fair to the employer. While there is 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.”

Similarly, in Clayton and Blais vs. Ministry of the Solicitor General and Correctional Services, OLRB P/6/99, a case involving delays of 16 - 18 months in filing grievances, Arbitrator D. Leighton wrote in her decision of May 16, 2000 as follows:

“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.”

The Employer contended that there was ample evidence that the Employer was not going to offer Mr. Kidston any further severance notice or pay beyond what it had identified in its letter of February 20, 2001. The Grievor failed to grieve with that knowledge. Instead, he made threats to call the Ministry of Labour and stated to the Employer “don’t think I won’t stick it to you”. The Grievor concedes he used these words but not as an intended threat.

Mr. Kidston argued that he had clearly expressed his perceived entitlement of sixteen weeks’ pay continuation after termination. In a telephone conversation with Mr. Campisi on February 27, 1991 Mr. Kidston informed the Employer that the February 20, 2001 letter had not been delivered properly in order to meet the termination notice provisions of the ESA. Also, in a feedback meeting on May 2, 2001 he advised that he had not received proper notice. At about the same time, he presented a contract extension proposal to the Employer. Upon receipt of his Record of Earnings on May 24, 2001, he spoke to a Payroll and Benefits representative and was advised that his pay would be continued to June 12, 2001. This apparently did not happen. Mr. Kidston then telephoned and wrote to Mr. Campisi on June 14, 2001to restate his position that he was entitled to 16 weeks’ notice of termination to be served personally or by registered mail. He requested a reply by June 29, 2001.

Mr. Campisi replied in writing on July 13, 2001, enclosing four week’s severance pay and confirming the Employer’s position that it had fulfilled its obligations and that no further entitlement would be forthcoming.

Once again, Mr. Kidston wrote to Mr. Campisi on July 20, 2001, maintaining his position that he was entitled to a further twelve weeks’ pay beyond the four weeks’ pay he had received July 13, 2001. He requested a further reply by August 3, 2001. When no such reply was forthcoming, he grieved on August 27, 2001.

Mr. Kidston argued that he did not sit on his rights but rather pursued the matter outside of the formal grievance process and that he was in fact aggrieved when he did not receive sixteen weeks’ pay subsequent to his termination.

Ruling on Motion

It is not obvious as to when the Grievor should reasonably have concluded that he had been aggrieved. Although the Employer advised him of its intentions in the letter of February 20, 2001, even those intentions were not fulfilled until the payout of the last four weeks of salary entitlement in mid July 2001. It is reasonable then to accept that the Employer’s ultimate position was realized by the Grievor only when the Employer failed to respond to his last letter of July 20, 2001. Until that time there occurred a series of two-way communications which suggest that the issue was still in flux, at least as perceived by the Grievor. The test of the pudding was what salary he actually received after his termination. When even the Employer’s promised four weeks’ pay was not immediately issued upon termination, the final resolution of his severance package remained outstanding.

I adopt the analysis adopted by other panels of this Board, which is summarized in Arbitrator M. Lynk’s award dated March 17, 1997 in the Scott et al vs. MOT case (P/0001/96) wherein he wrote:

“...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.”

Further guidance is provided 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.”

My finding is that the grounds for the filing of a grievance occurred with the issuance by the Employer of the four weeks’ pay on July 13, 2001, accompanied by the reassertion of its earlier and only position regarding Mr. Kidston’s severance notice and pay entitlement. While Mr. Kidston waited until he was sure no further response would be forthcoming from the Employer, such delay of approximately four weeks beyond the prescribed norm was not a significant one and no evidence was heard that the Employer has been prejudiced by such delay.

For all of the above reasons and in accordance with the principles outlined in the cited cases 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.

Arguments

The Grievor, while confirming receipt of written notice of termination, contends that, as the notice was not delivered personally or by registered mail, it fails to meet the requirements of Section 57 (2) of the Employment Standards Act. As such, he believes he is entitled to an additional 12 weeks’ pay in lieu of proper notice. He also alleged that the notice received was invalid in that it was contingent upon a future event. The Employer contended that such latter grounds were outside the original grievance.

The Grievor referred to a number of Employment Standards Branch referee’s decisions regarding proper notice.

The Employer responded that the Grievor was knowledgeable and experienced in labour relations matters and knew that his contract was to expire on May 18, 2001. After receipt of the written notice, he accepted further training and also took other measures to obtain alternate employment. He forwarded his resume for posting on the Managers Map and was afforded the opportunity to apply for other jobs although he declined those opportunities. He initiated an offer for contract extension which was declined by the Employer. Upon the completion of his term on May 18, 2001 he left Toronto, moving to Vancouver.

The notice of termination was hand delivered to his work site by intra-governmental mail service which the Employer suggested was comparable to registered mail or hand delivery in terms of security and the Employer’s ability to confirm delivery.

The Grievor acted at all times as would be expected of an employee who has received and understood the expiration of their employment. He has not suffered by the form of the notice.

Alternatively, the Employer argued that the Grievor received more consideration that the ESA dictates as a minimum standard. Section 4 (2) of the ESA allows the Employer to “override” the provisions of the ESA if it provides greater benefits. This section does not provide that the higher benefit be in the prescribed form of a notice in writing.

As to the notice being conditional, the Employer argued that there was no condition attached to the expiration of his contracted employment.

The Employer requested that the grievance be denied on merit or alternatively, if the notice was technically in breach of the ESA, only a declaration should result, without damages as there had been no evidence of such.

Decision

Regulation 327 Section 8 (1) specifies that notice of termination of employment as provided by section 57 of the ESA shall be served personally or by registered mail.

It is not disputed that the Employer’s notice was not by registered mail. Although the Employer contended in argument that its method of delivery was equivalent to delivery by hand or registered mail, no evidence was presented to enable the Board to make that determination. To that extent, therefore, the notice in this instance must be deemed to be in technical violation of the ESA requirements.

Regarding a contingency provision, I do not accept the Grievor’s argument. The notice clearly conveys that the severance provisions outlined will be made, unless the Grievor secures other employment with the PSO prior to the expiration of his contract. In other words, the notice and severance was not activated or contingent upon some event occurring, but rather was to be negated if the event of alternative employment with the Employer occurred.

Both parties agreed that there was no confusion about the termination of the Grievor’s contract. The Grievor simply believes that although he received notice and acted, as he would have had the same notice been delivered by registered mail, he is entitled to further notice than that already received.

I cannot concur with that conclusion. The purpose of the ESA provisions is to ensure that the employee receives clear and complete information, in written form, to which he/she can make reference, in order to make whatever decisions are necessary in the period of employment remaining, with a view to lessening the economic and other impact of termination.

There is no dispute that the Employer’s notice served that purpose and was responded to as though it was a technically proper notice. Had the Grievor received what he argued to be a proper notice at the time that his alleged improper notice was received, he would have received no greater benefit than he did in fact receive.

Thus, while the Employer has not convinced the Board that its method of delivery of termination notice was technically compliant with the provisions of the ESA, it has undisputably served the same purposes without damage to the employee. As such, no damages are awarded.

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