P-2005-1151

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Karla Marshall

Grievor

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Kathleen G. O’Neil

Vice-Chair

FOR THE GRIEVOR

Melynda Layton Barrister & Solicitor

FOR THE EMPLOYER

Simon Heath Counsel Ministry of Government Services

HEARING

June 9, 2006.

Decision

This decision deals with the employer’s preliminary objections to the arbitrability of the grievor’s claim for payment for travel time and expenses from November 1, 2001 to December 31, 2004. The employer’s position is that the grievance, filed on June 4, 2005, is untimely and should therefore be dismissed without a hearing on the merits. The grievor resists the motion on the basis that she grieved as soon as she was aware of the terms and conditions of employment on which she bases her grievance. For the reasons set out below, the Board has determined that the matter may proceed to a hearing on the merits.

The evidence

Ms. Karla Marshall, the grievor, gave oral evidence and both parties filed briefs of documents. As there was a substantial amount of overlap with the evidence likely necessary to a determination of the merits of this matter, it is convenient to set the main points of it out here, in more detail than strictly necessary for the determination of the preliminary motion, in the interests of potentially reducing the amount of evidence necessary at a hearing on the merits. The background facts are not substantially in dispute, although their significance is at the core of the controversy.

The grievor secured a position as an Operational Manager with the St. Lawrence Valley Correction and Treatment Centre (St. Lawrence) Phase 1 effective November 19, 2001. As the facility was not yet built, she was temporarily assigned to Rideau Correctional and Treatment Centre (Rideau). This did not require a change in work location, as she had worked there since January 2, 2001, as an Acting Operational Manager, having asked to go to Rideau from her home position at Ottawa Carleton Detention Centre (OCDC) to develop her managerial skills. The employer agreed on condition of a job swap with another Operational Manager. Prior to reporting at Rideau she received a letter from the employer indicating that she would be responsible for expenses while assigned at Rideau, which was said to be for a period up to six months, which would have ended in June 2001. The grievor did not agree with employer counsel’s suggestion that this letter applied throughout the period she was at Rideau. The assignment was extended beyond the six months to April 29, 2003. As well, after November 19, 2001, she was no longer an acting Operational Manager, as she had secured a permanent position at St. Lawrence, albeit with an indefinitely deferred reporting date.

Throughout the time Ms. Marshall continued to work at Rideau, it was on the list of facilities to be decommissioned. She testified that she was asked to stay on as the employer needed managers there. Thus, between January 2, 2001 and April 29, 2003, with the exception of the period of an OPSEU strike when the grievor worked at OCDC, she worked at Rideau, although she was never considered to hold a permanent position there.

Much of the employer’s questioning was aimed at establishing that the grievor had sufficient experience with travel expenses that she should be held to have been aware of her terms and conditions of employment in this respect long before May 2005. The grievor’s evidence was that she applied for travel expenses when she was directed to do so by the Acting Financial Manager at OCDC where she was working during the 2002 OPSEU strike. She received mileage expenses only. At that time, she said she did not receive any policies concerning payment for travel time or expenses. As a general matter, the grievor testified that she usually was told by her supervisor when to put in for travel expenses, and what form to use.

On April 29, 2003, when the first phase of the new St. Lawrence facility had been completed, the grievor reported there on assignment to the Secure Treatment Centre. She received a letter dated April 23, 2003, which together with the grievor’s testimony, establishes that for the first four weeks, she was considered on a temporary training assignment during which she received payment for mileage. The grievor testified that she did not have any discussion with colleagues at that time about travel allowances.

The grievor’s formal reporting date at St. Lawrence was considered as May 28, 2003. The personnel documentation of the grievor’s move from Rideau to St. Lawrence effective May 28, 2003 indicates it as a return to Home Position. On cross-examination, she agreed with employer counsel that between April 23, 2003 and January 4, 2005 it was fair to say that St. Lawrence was her normal working place.

In November 2004, the Operational Managers were asked to volunteer to go to OCDC which was short of managerial staff, and the grievor agreed to go if she could work with youth. She was considered on temporary assignment there and received mileage, between her home and Ottawa, banked travel time (which she wrote into the document herself) and paid lunch between January 4, 2004 when she reported to OCDC and June 3, 2005.

In cross-examination, employer counsel characterized the discussions leading to the agreement to pay travel expenses while in Ottawa as an instance of the grievor’s having negotiated with the employer about travel expenses. The grievor’s response to this suggestion was that she assumed she could have travel time as banked time, as a manager, because it had been available under the collective agreement. She said the employer did not dispute it, and she wrote it in as confirmation. Payment of those expenses ceased when she was later permanently assigned to OCDC. The documentation of the transfer to Ottawa in January 2004 indicated that she was to return to her home position as Operational Manager at St. Lawrence at the end of the temporary assignment, but that did not actually take place. On September 16, 2005, the grievor was appointed to a permanent position with OCDC instead. A letter dated July 5, 2005, confirming the grievor’s acceptance of a direct assignment to OCDC, made it clear there would be no travel or relocation entitlements as a result of the permanent assignment. The grievor said that under the redeployment provisions, she had no choice.

By early January 2005, it had been announced that St. Lawrence was to be merged with the Brockville Jail and Phase 2 was not going ahead. The grievor, as one of 26 operational managers from St. Lawrence Phase One, those already hired for the cancelled Phase Two, as well as those from the Brockville Jail, were required to compete for half that number of Operational Manager jobs in the new integrated facility.

The grievor’s evidence is that she only became aware of subsection 10.17 of Regulation 977, one of the bases for her claim, in the week prior to her May 26, 2005 grievance, when another manager told her where to look for it. She had been involved in discussions at that time with other Operational Managers during which she learned of the employer’s policy and practice, pursuant to which other Operational Managers in situations she considers similar to hers had received travel allowance. This included Operational Managers who had received travel allowances on temporary assignments, pending their assignments to St. Lawrence, which lead her to the conclusion that she should have been receiving similar entitlements during her entire period at Rideau.

Furthermore, when she heard on May 26, 2005 that she was not successful in getting a position at the merged St. Lawrence/Brockville Jail facility, it became clear to her that her placement at St. Lawrence had not been permanent and she concluded she should have been entitled to travel allowance, not just for the training period, but for the time up to her return to OCDC. She testified that she had suspected beforehand that she would not be successful in the pooled competition, and was not angry.

The grievor then submitted her request for payment of travel expenses. When they were not approved, she grieved by way of writing to the Deputy Minister of Community Safety and Correctional Services on June 4, 2005. When no remedy was forthcoming, she forwarded the matter to the Board on July 4, 2005.

The grievor actually read section 10.17 of Regulation 977 for the first time on August 16, 2005 when she accessed it on the Internet after having heard about it from other Operational Managers prior to filing her grievance. The grievor testified that although she has become much more computer literate since 2005, until then her computer skills were very basic, and she had not accessed policies on the Internet, and she had been told not to use it for personal reasons. In her role as an Operational Manager, she had some experience referring those reporting to her to provisions of their collective agreement but had had no reason to deal with the regulation pertaining to travel expenses for managers or any related policy document.

As to the Public Service Act she was aware of its existence in 2002-03 and had asked for a copy, but none was provided to her. From the time she became an Operational Manager in 2000 until May 2005, she did not know that it was the employer’s practice to pay travel expenses when the employer asked managers to leave their institution for a temporary assignment elsewhere. She said on cross-examination that she was now also aware that the employer does not normally pay travel expenses when the temporary assignment is at the employee’s request. On re-examination, she indicated that she was referring to relocation expenses when she provided that answer.

The Parties’ Submissions

The grievor’s position on the merits is that she is entitled to travel allowance (consisting of mileage, travel time and meals) from November 2, 2001 when she was temporarily assigned to Rideau and St. Lawrence. This is said to be her entitlement in accordance with subsection 10.17 of Regulation 977 pursuant to the Public Service Act and/or an Addendum to the Staffing Operating Policy. Further, the grievor is said to have been treated inequitably contrary to the Staffing Operating Policy.

Employer counsel argues that the matter should be dismissed, as the grievance was filed far beyond the fourteen days outlined in s. 34(1) of Regulation 977, and was therefore not filed in a timely manner. Counsel emphasizes that the claim ranges from 2001 to 2004, a delay of three and a half years to six months before she grieved and the matter is not a continuing grievance. As to the grievor’s evidence about delayed awareness of her complaint, counsel argues that this should not be open-ended, and that the length of the delay in this case would be prejudicial to the employer’s ability to present its case. Further, it is argued that the subject matter, being travelling expenses, rather than a more fundamental issue such as discharge or discrimination on human rights grounds, should not attract the exercise of the Board’s discretion to extend the time limits.

As well, the employer takes the position that it was not acceptable that the grievor did not familiarize herself with all the employer policies applicable to herself until so late in the sequence of events - that she should have exercised more diligence as a manager to find out what her rights were and to grieve sooner. Counsel argued that when the grievor originally transferred to Rideau in 2001, she did not receive travel expenses when she asked for the job trade, and that she should therefore be held to have imputed knowledge of the employer’s policy in this regard. She learned of the other branch of the employer policy, that they pay when they request the change, when she was told that if she agreed to go to OCDC, the employer would pay travel expenses because the employer wanted people to go. Further, the grievor should be held to have been aware that the whole area was subject to negotiation because she wrote in “banked time” on her temporary assignment agreement to OCDC. Counsel submits that she would not have done that if she had not known her rights.

As well, the employer argues that the timing of the grievance, coincident with the date she found out that she was not successful in her bid for a job at the merged St. Lawrence/Brockville Jail institution, should be taken into account. Only then did she produce four years worth of claims for travel expenses. The Board is invited to see the claim as one of retribution for not being selected for the position she was seeking. In these circumstances, employer counsel submits that the grievance should be considered vexatious and to have been filed in bad faith.

In support of his arguments, employer counsel relies on the following case law, from the PSGB: Deboer and The Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services) PSGB #2005/1033 (O’Neil), Marshall (Nancy) and The Crown in Right of Ontario (Ministry of Health) PSGB # 2004-2738 (O’Neil), Coccia and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) PSGB #2003-3552 (Leighton), McFadden and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) PSGB #P/0019/99 (Willes) as well as two from the Crown Employees Grievance Settlement Board (GSB): OPSEU (St. Jean) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) GSB #2001-1122 (Leighton) and OPSEU (Smith)and The Crown in Right of Ontario (Ministry of Northern Development and Mines) GSB #2002-0243, etc. (Mikus).

Employer counsel invited the Board to consider the factors set out in Becker Milk and Teamsters, 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217 (Burkett), relied on in a number of the above cases, and to decline to exercise its discretion to extend the time limits. Counsel relies on the fact that the nature of the grievance is a limited pay claim, rather than a discharge or a case raising issues such as human rights. Secondly, the length of the delay is such as has been held to be too lengthy in the cases relied on above. Thirdly, as to the reason for the delay, that the grievor was unaware of her rights until shortly before she grieved, the employer argues that it is hard to accept this as an excuse on the facts of this case. In any event, the Board is urged to find that ignorance is no excuse, and that a manager has to be diligent in pursuing his or her grievance.

On behalf of the grievor, counsel argues that, given the subjective element in the time lines in s. 34(1) of Regulation 977, the matter is not untimely. The Board is invited to conclude that there is no delay, that the grievor filed her grievance within fourteen days of becoming aware of what she believes now are the applicable terms and conditions of her employment as to travelling expenses. Her uncontroverted evidence is that she learned of the treatment of other Operational Managers the week before she grieved, and acted promptly thereafter.

Further, in the face of the lack of evidence that the employer’s policies or practices were brought to her attention, counsel argues that it is reprehensible for the employer to argue that the grievor bears the only onus to make herself aware. The Board is invited to reject any suggestion that there was anything vexatious or in bad faith about the timing of the grievance. The grievor’s uncontradicted evidence is that she was aware that she might not get one of the positions at the merged St. Lawrence/Brockville Jail institution, and that the motivation behind the timing of the grievance was not anger. Rather the evidence supports a finding that, prior to her transfer to OCDC in 2005, she was not aware of her right to claim travel expenses as a result of a temporary assignment. Before that, the employer had advised her in exceptional circumstances – such as the OPSEU strike and the training period at St. Lawrence– to submit a claim. The fact that she wrote in “banked time” on the document relating to her assignment to OCDC should not be taken as any awareness of the employer’s policies on travel expenses, in counsel’s submission. Rather it should be taken for what it was: an attempt to clarify that the banked time option was available.

Further, counsel submits that the employer waived the timeliness objection when no mention was made of it in the employer’s response to her grievance. Counsel maintains that it is now too late to assert an objection to timeliness.

In support of the grievor’s position, counsel relies on the following case law: Laird and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) PSGB #2003-0799 (O’Neil), Amirault and The Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services) PSGB #P/0028/94 (Lynk)as well as one from the Crown Employees Grievance Settlement Board (GSB): OLBEU (Clements) and The Crown in Right of Ontario (Liquor Control Board) GSB 112/80 (Prichard).

Counsel distinguishes the cases cited by employer counsel on the basis that they all deal with situations where the grievor knew about the basis for their grievance but waited. Here the situation is different because the grievor’s uncontradicted evidence is that she did not know of the basis for her grievance prior to the week before she grieved.. When assessing the impact on the employer, counsel urges the Board to include in the balance the employer’s own behaviour in not bringing forward to the Operational Managers information about their overall approach to the payment of travel expenses. Counsel submits that no prejudice has been proven by the employer and there is no evident difficulty in having a hearing fair to both sides given the nature of this case.

As to the employer’s submission that a pay issue should not lead to the exercise of discretion in these circumstances, counsel acknowledges the issue may not be as significant as discharge in the grand scheme of things, but that where there is no evidence that the grievor did not act diligently on becoming aware of the information on which she bases her grievance, there is no reason that the grievance should not be heard.

In reply, employer counsel suggests that it is simply not credible that, during the long commute for which the grievor now says she should be reimbursed, it never occurred to her that she might be entitled to travel expenses. The Board is asked to find that the explanation is not credible in the face of the evidence that employees talk about such things in the workplace. As well, the Board is asked to find that there will be inevitable prejudice in asking witnesses to remember what happened such a long time ago. Counsel submits that the level of diligence should be held to be higher for a manager than for bargaining unit employees, because they are supposed to be able to take initiative.

The issue before me is whether the grievance should be dismissed for delay, as the employer asks, given that the facts underlying the grievance occurred in a time period that varies from four years to about six months from the date of the grievance. As both counsel acknowledge, the starting point for the analysis is Section 34(1) of Regulation 977, pursuant to The Public Service Act, which reads as follows:

34. (1) A person described in subsection (2) 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 condition or term of employment giving rise to the grievance. O. Reg. 168/96, s. 6 (1).

The point of departure, given this wording, must be: when did the grievor become aware of the working condition of term of employment giving rise to the grievance? This is what is referred to as the subjective test, as it refers to the individual’s subjective awareness, not the objective existence of the facts at the basis of the grievance. This a quite different starting point than in the cases cited from the Grievance Settlement Board as the language of the collective agreement considered in those cases does not contain the subjective element central to s. 34(1) of Regulation 977.

The uncontradicted, credible, evidence of the grievor is that she became aware of what she considers the terms and conditions of employment relating to travel expenses on which she bases her claim in the week before she grieved. It was then, in discussion with her colleagues, that she learned of their receipt of payment for expenses in circumstances she considers sufficiently similar to her own to evidence a term and condition of their mutual employment.

It is important to underline that at this stage of the proceeding, a preliminary motion to dismiss for delay, the Board is not deciding whether the grievor will eventually be successful in her claim. At this point, it is assumed that the grievor’s case can be proven. There is a live dispute about whether there was a term or condition of employment entitling the grievor to travel expenses on the facts of this case, but that issue is not before me at the moment. Rather, the issue is whether the grievor is entitled to a hearing on that issue.

In accepting the grievor’s evidence as to the reason for filing when she did, it is the Board’s finding that the various interactions that the grievor had dealing with travel expenses prior to her conversations with her colleagues in May 2005 do not amount to sufficient awareness of the employer’s policy and practice on travel expenses to discount her evidence on the significance of the conversations she had shortly before she filed her grievance.

Nor is the evidence persuasive that the grievor had some undischarged obligation to have assimilated the in’s and out’s of the employer’s policy and practice on travel expenses sooner. The employer’s position that the grievor should have been more diligent in discovering the employer’s policy and practice on travel expenses might have more force if the policy was readily identifiable, or if there was evidence that it had been brought to the attention of the Operational Managers. As it is, there was no single document setting out the contents of the written policy, let alone the practice. Section 10.17 (1) of Regulation 977 has been a constant, but the circumstances in which the employer pays travel expenses were not said to be limited to the provisions of the regulation. There were several documents filed before me which have some reference to payment for travel, including the Addendum which was a special two-year arrangement for the period February 2002 to March 2004 which generated travel expenses for some Operational Managers in certain circumstances not specifically covered by the general Staffing Operational Policy. Significantly the two main prongs of the employer’s approach to travel expenses, as suggested by employer counsel in cross-examination, do not appear in writing. (These were that travel expenses are generally paid when the employer requests an employee to leave his or her institution for a temporary assignment, and are not paid when a temporary assignment is at the employee’s request.) To assert that it was a duty of every Operational Manager to know what the policy was, which would require knowing how the various documents fit together, as well as the practice, belies the complexity of the situation. This is particularly so when set against the shifting assignments and transfers experienced by many Operational Managers as decisions changed about decommissioning old and building new facilities in the period in issue.

It is true, as counsel argued, that managers are often expected to show more initiative than bargaining unit members. However, when considering the awareness necessary to start the time running under the timeliness provisions, it is appropriate to also take into account how evident the term or condition of employment in question was at the time in question. It does not appear unreasonable that the grievor was not aware of all the factors going into the payment or non-payment of travel expenses given the variety of applicable documents and situations existing during the period in dispute. In this case, in sum, the evidence is persuasive that it is appropriate to consider the time period under s. 34(1) which begins with the grievor’s awareness, to have started running in May 2005.

In the circumstances, this is a case of delayed awareness, and the most applicable cases are those such as Laird and Amirault, cited above. As in those cases, the Board is persuaded that the grievance ought to be heard on its merits. There is no actual breach of the time lines in s. 34(1) in this case, so that the cases dealing with extensions of time limits are not as instructive.

Further, although the jurisprudence holds that the subjective element is not unlimited, and must be tempered by a consideration of the impact on a fair hearing, the other evidence discloses no obvious impediment to a fair hearing for both sides. At this stage, the dispute appears to be over the content and interpretation of the grievor’s entitlements under her terms and conditions of employment, in respect of which the various transactions appear fairly well documented. If there is a problem of proof during the hearing which arises from the lapse of time between the facts complained of and the grievance, argument may be made as to the Board’s appropriate response, as to remedy or otherwise, in the event the grievance were to be successful in whole or in part on the merits. The time period between the latest period in dispute and the grievance is about six months, not a length of time that is so egregious as to spell inevitable prejudice. Although the matter is no longer a continuing grievance, the obligation, if any, to pay travel expenses would have been a recurring one during the period claimed. Although the earliest period in dispute is over four years before, a much longer, and therefore more problematic period of time, the Board’s remedial response, if any, can take that into account if appropriate at the end of the day.

For the above reasons, the employer’s preliminary objection is dismissed and the matter should be set down for a hearing on the merits.

Dated at Toronto this 8^th day of August, 2006