P-2007-0407

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Fred Berenbaum

Complainant

• and -

The Crown in Right of Ontario (Ministry of Labour)

Employer

BEFORE

Kathleen G. O’Neil

Vice-Chair

COMPLAINANT FOR THE COMPLAINANT

Fred Berenbaum Ron Chyczij

FOR THE EMPLOYER

Jennifer Richards Ministry of Government Services Labour Practice Group Counsel

HEARINGS

November 9, 2009, June 14 and September 23, 2010.

Decision

1This decision deals with the employer’s preliminary objections, in which it asks for the dismissal of the grievance of Fred Berenbaum, a Senior Review Officer with the Pay Equity Commission. There are three aspects to the grievance, all related to changes in his pay. The employer objects to two features of the grievance on the basis that they deal with pay-for-performance. To the extent that the grievor is complaining about retroactive implementation of changes to the employer's pay-for-performance policy, the employer also takes the position that there is no prima facie case for the remedy requested. All aspects of the grievance are objected to as untimely. The grievor disagrees with the employer’s position, and asks the Board to hear the whole grievance on its merits.

Background/Facts

2After unsuccessful attempts to resolve this complaint at mediation, this matter was set down for hearing on November 9, 2009, but was adjourned as the grievor had had little notice of the employer’s preliminary objections. On the two subsequent dates of hearing, evidence and argument on the employer’s preliminary objections were heard.

3On a motion such as this the facts alleged in the grievor’s application are considered true and provable, although, at a hearing, based on the evidence, the findings might be different. In addition, both parties called viva voce evidence for the purposes of the preliminary motion. There does not appear to be much disagreement on the facts, although there are important differences as to the legal significance of those facts. A brief overview follows here, elaborated as necessary further on, in the sections dealing with each of the issues necessary to the disposition of the employer’s motion.

4Mr. Berenbaum has been a Review Officer for the Pay Equity Commission since 1989. Between 1990 and December 31, 2001, his job was classified and paid as ALR 20. As of January 1, 2002, he and the other Review Officers were classified as ALR 21. The employer takes the position that this was a reclassification effective January 1, 2002, as announced in a letter dated December 19, 2001 to Mr. Berenbaum to that effect. By contrast, it is the grievor’s position that it was not a true reclassification, but an agreed wage increase flowing from a confidential settlement of a pay equity complaint lodged by a group of Review Officers concerning their own salary, which should be considered to have taken place at an earlier date, such as the date each Review Officer started in the job.

5I note that there were concerns raised at the hearing about evidence about the confidential settlement, and whether the Board should defer to the Pay Equity Hearings Tribunal for any questions of enforcement or interpretation of that settlement. It is my considered view that it is not necessary to deal with that issue here. Rather, for the purposes of this motion, the assertion that the Review Officers received pay which reflected a retroactive reclassification to the date of their entry into the Review Officer position, as if it was correcting a misclassification since 1990, is simply assumed true and provable. This means that it is not germane to this motion to answer the employer’s questions during argument as to how there can be a mistake, if it is conceded that the confidential settlement was implemented correctly, or how we are to know that the retroactive pay was not in satisfaction of some claim for damages, or other aspect of the pay equity complaint, without delving into the confidential settlement.

6As a result of the above settlement, the Review Officers’ salaries were recalculated and retroactive payments were made in September 2002. In the spring of 2003, the grievor was informed that there had been an overpayment to him in those retroactive payments of more than $1300, which was eventually deducted from his pay between September and December 2003. The grievor objected to these deductions, and complains that he never had a proper explanation for them or of the nature of the error.

7During the same fiscal year as the settlement of the pay equity complaint, the employer introduced new rules concerning pay-for-performance, including the beginning of a transition to remuneration based solely on performance, for employees such as the grievor in the Management Compensation Plan. As Ms. Risa Caplan, Corporate Compensation Specialist, explained in her evidence, the transitional rules provided that the portion of the grievor's compensation which flowed from pay-for-performance in the fiscal year 2001/2002 was prorated from the date the change in salary flowing from the reclassification of his position was realized, i.e. January 1, 2002. The change was treated as a promotion in place for pay purposes. It was her evidence that, for the purposes of the transition rules according to which the pay-for-performance awards were delivered for that fiscal year, the reason for the re-classification would not have mattered. She also underlined that the context in which the terms and conditions of employment for non-bargaining unit employees such as the grievor are set is a unilateral one, i.e. the terms are not negotiated with employees covered by the Management Compensation Plan such as the Review Officers.

8In its compensation policies applicable to the fiscal year 2003/2004, the employer completed the transition to a system where increases for those in the Management Compensation Plan are only based on performance. Salary ranges were adjusted so that there is potential for higher earning, but individuals no longer receive any automatic or across-the-board increases. These changes were announced in 2005, and applied retroactively. Amounts that had been earlier paid out in lump sums were re-characterized as representing movement on the salary grid, to the grievor, an unanticipated change to the structure of his pay.

An evidentiary ruling

9During the course of the evidence on the preliminary objection, the grievor's representative asked for disclosure of the Cabinet documents which authorized the terms and conditions of employment in regards to pay-for-performance. It was argued that they were necessary to see whether the rules that had been applied were consistent with the Orders-In-Council which authorized them. It was argued that Cabinet might, for instance, only have authorized the concept of pay for performance, but not the rules for treatment of promotions applied in this case. The employer resisted the production of these documents as not relevant to the motion and potentially privileged. As well, counsel stressed that the idea that the transitional rules applied to the grievor were not properly authorized was not part of the grievance.

10I declined to order the production of these documents on the basis that they were not probative of the issues before me. It is true, as employer counsel argued, that there no suggestion in the grievance that the rules applied were unauthorized. Moreover, I was not persuaded that the additional documentation would assist in deciding whether the grievance as particularized fell within the jurisdiction of the Board or was untimely. The issues at the moment are jurisdiction and timeliness and not the merits of the complaint, which would deal with the question as to whether or not there had been a breach of the terms and conditions of the grievor’s employment, and if necessary, what those terms and conditions were.

Does the grievance contain a complaint about pay-for-performance?

11The grievor's application to the board complains that he only received 25% of his pay-for-performance award for the fiscal year 2001/2002, and that the Implementation of the employer's pay-for-performance policy for the fiscal year 2003/2004 was done retroactively. The Employer takes the position that these two aspects of the application filed by the grievor are beyond the jurisdiction of the board as related to pay-for-performance. The grievor maintains that his complaint is about a mistake as to the date of the reclassification of his position which affected how the pay-for-performance rules were implemented, and not about the percentage award or the method of evaluation, and thus should be considered within the board's jurisdiction.

12The employer’s motion makes reference to Section 31(4) of Regulation 977 (repealed), in force when the grievor filed his grievance on April 3, 2006, which provides as follows:

31. ….

(4) No grievance shall include a complaint in respect of the following matters:

1. A complaint that a position should be classified.

2. A complaint that a position is in the wrong classification.

3. A complaint relating to a release from employment under subsection 22 (4.1) of the Act.

4. A complaint regarding the method of evaluating an employee's performance.

5. A complaint regarding the evaluation of an employee's performance.

6. A complaint regarding the compensation provided or denied to an employee as a result of the evaluation of his or her performance.

(Italics added)

13The issue to be determined is whether or not the two aspects of Mr. Berenbaum’s grievance described above should be considered to fall under paragraph 6 of s. 31(4) of the Regulation. Is he complaining about the compensation provided or denied to him as a result of the evaluation of his or her performance?

14The employer's position is that a straightforward reading of his complaint shows that he is. Pay-for-performance is the term that the parties use to refer to the employer’s system for providing compensation as the result of the evaluation of employees’ performance. I am invited to find that when the grievor complains that his pay-for-performance award should not have been prorated in 2001/2002 or determined retroactively for 2003/2004, he is complaining entirely about matters regarding pay resulting from the evaluation of his or her performance. Employer counsel concedes for the purposes of this motion that the Review Officer job did not undergo a typical reclassification. The employer does not concede any other of the grievor’s points, e.g. that the change from ALR 20 to ALR 21 was not properly regarded as a reclassification, even if an atypical one, which occurred on the date of the salary change upwards, or that an atypical reclassification makes the claim one that is not related to pay-for-performance.

15Counsel refers to the evidence which established that the employer published a salary directive and transitional procedures which clearly state that a reclassification would be treated in the same manner as a promotion. The fiscal year 2001/2002 was the last one in which employees had individual anniversary dates on which they received any merit increases to which they were entitled. Starting April 1, 2002, all employees in the Management Compensation Plan were to have a common annual performance review date of April 1. For the transition year, 2001/2002, the employer policy provided for pro-rating based on the time period from the date of the last merit increase to March 31, 2002. Similarly, in the case of promotion or reclassification, the employee was eligible for a prorated performance award from the date of promotion or reclassification. The employer invites a finding that the grievor was bound by the operating procedure to the effect that his pay-for-performance award would be prorated when promoted or re-classified. Moreover, the employer takes the position that the rationale and language behind the reclassification is irrelevant for the purposes of the pay-for-performance rules. The Review Officers moved from one classification to another, there being no other way to get from ALR 20 to 21, which amounts to a reclassification, in the employer’s view. The fact that it is a bit of an anomaly does not matter to the analysis, in the employer’s view.

16Cases relied on by the employer in terms of their argument on jurisdiction were the following: Gary Sumner et al and the Crown in Right of Ontario (Ministry of Health and Long-term Care), PSGB# P-2006-1143 etc., August 21, 2007 (O’Neil); Robert Younger and the Crown in Right of Ontario (Ministry of the Environment), PSGB# P-2006-2458, July 18, 2007 (O’Neil); Timothy J. Pedder et al and the Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), PSGB# P-2005-3706 etc., October 5, 2006 (O’Neil); Mark Woodward et al and the Crown in Right of Ontario (Ministry of Community and Social Services), PSGB# P-2005-1853. August 25, 2006 (O’Neil); Anthony Hill et al and the Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), PSGB# P-2004-3699, August 25, 2006 (O’Neil); Garratt et al and the Crown in Right of Ontario (Ministry of Health and Long-term Care) P-2003-1670, May 17, 2005 (O’Neil); Tyrrell et al and the Crown in Right of Ontario (Ministry of Community Safety and Correctional Services, PSGB# P-2003-2687 etc., December 7, 2004 (Carter).

17In addition to the above submission, the employer makes a second line of argument to the effect that there is no prima facie case for the portion of the complaint related to the fiscal year 2004/2005. Employer counsel argues that the grievance amounts to a claim for a 2% across-the-Board increase, which should clearly be dismissed as the Board has already dealt with the issue of notice and the potential for retroactive changes to non-bargaining unit classifications in the Pedder and Sumner decisions, cited above. The employer maintains that the evidence is clear the employer alone is responsible for determining any changes to compensation, and the timing of those changes for employees, such as the grievor, who are not covered by a collective bargaining agreement. The employer’s position is that, since the employer has not provided any term or condition of their employment such as the ones the grievor says was breached, there is no prima facie case for the Board to remedy.

18In other words, the employer argues that there is no contractual promise, term or condition of employment that the grievor would receive the money he claims he is owed, and therefore there is an insufficient basis for his grievance to succeed. Since the board cannot set salaries or terms and conditions of employment, the employer maintains that no prima facie case of breach of existing terms and conditions of employment has been established so that this portion of the grievance should be dismissed on that basis as well. Reference is made to the Woodward, Younger, and Tyrrell decisions, cited above, in support of this submission.

19By contrast, the grievor asks that the matter be heard on its merits. Addressing the jurisdictional issue, the grievor says he does not see this as a matter of pay-for-performance. Rather, it is about how and why the reclassification occurred. He noted undisputed differences in how the raising of the Review Officer’s pay was treated, as compared to the normal process for reclassification, i.e. a higher percentage increase than normal promotion or reclassification, no process of re-evaluation initiated by the employer or the Review Officers, and a different method of moving the officers to the salary grid of the higher classification. He argues from these differences from the usual reclassification, that the increase in compensation should not be treated as the normal reclassification envisioned by the employer’s transitional rules for pay-for-performance.

20Turning to the wording of section 31 (4) of the Regulation, set out above, the grievor maintains that he is not arguing about the evaluation, the method of evaluation or the result. He was happy with the percentage awarded him as a result of his performance evaluation, but maintains he did not receive what he was awarded. His complaint is about the implementation of the award. To say that he cannot grieve a mistake is ridiculous, in the grievor’s view. This is especially so in light of the fact that the employer says it made a mistake in paying out the retroactivity of the Pay Equity settlement and that they say they can go back and fix that. It is the grievor’s position that the employer also made a mistake in the implementation of his pay-for-performance award, in misinterpreting the salary change resulting from the settlement of the pay equity complaint.

21Mr. Berenbaum clarified that he is not arguing that the settlement was not implemented correctly according to its terms. Rather, it is his position that the employer erred in treating the job as if it had been reclassified according to the normal procedure in January 2002. In essence, the grievor’s position is that the correct approach would have been to view the job as if it had been properly classified since 1990 at the higher level. Alternatively, he sees it as a pay equity adjustment rather than a reclassification.

22The grievor maintains that he is objecting to the pay denied to him as a result of an error about the effective date of the reclassification of the Review Officer rather than about the pay denied as a result of the evaluation of his performance, as he would be if he were saying, for example, that he deserved a higher percentage rating of his performance. In other words, he is maintaining that the chain of causation leading to the denial of a non-pro-rated pay-for-performance award flows from a mistake about the classification date, rather than from the evaluation of his performance, and is therefore not caught by the Regulation.

23The grievor submits that January 1, 2002 was likely a date agreed to for convenience to allow the calculation of retroactivity and adjustment of the salary in confirmation of the settlement for Review Officers with a variety of start dates in the position. In any event, in the grievor’s view, the date of the pay adjustment is not significant for reclassification purposes because of retroactivity which was paid back to dates earlier than January 1, 2002, in fact well before the fiscal year 2001/2002. The significance of this for his argument is that, if the reclassification had been made on any date prior to April 1, 2001, the first date in the fiscal year used for the calculation of the pay-for-performance award, there would have been no pro-rating of the award on the basis of a reclassification during that fiscal year. Further, the grievor notes that the pay equity adjustment was retroactive to 1990 and the settlement had nothing to do with the new rules for pay-for-performance, which were implemented long after the settlement.

24The grievor finds the Board’s decisions dismissing complaints on the basis of lack of jurisdiction over pay-for-performance relied on by the employer as not relevant because he maintains he is not grieving pay-for-performance but pay on assignment.

25No matter how one views the argument about the date of the reclassification, two things are clear. In real time, rather than any retrospective re-characterization which may or may not have been done in the confidential settlement, the grievor’s pay treatment changed on January 1, 2002, so that he started to be paid the wages of a higher-rated classification. The evidence is clear that, until the end of 2001, the grievor was paid in the classification of ALR 20, and that, starting January 1, 2002, he was paid more as an ALR 21. There is no complaint that in 2002, at least, he was not paid the correct amount of retroactivity or basic pay as an ALR21. Secondly, what the grievor wants is to be paid a pay-for-performance award which is not pro-rated. He wants the employer to pay him a larger amount of money as his pay-for-performance award. This very basic fact makes this a complaint about pay-for-performance, or in the words of the regulation, a complaint about the “compensation provided or denied to an employee as a result of the evaluation of his or her performance”. Over this, the Board has no jurisdiction.

26The grievor stresses that he is not complaining about the substance of the evaluation of his performance, or the percentage rating. He is complaining about its implementation, as he is convinced that there was a mistake in what he was paid, not in how he was evaluated. His basic position is that he was evaluated in a way that was worth twelve months of a pay-for-performance award, and he was only paid one-quarter of that. Of course, the idea that an employee ought to be able to get a mistake corrected is one that has very basic appeal. And for the purposes of this motion, the grievor’s assertion that the reclassification should have been considered to have taken place prior to the fiscal year 2001/2002, and that the employer was factually mistaken when it treated it as having occurred on January 1, 2002, is assumed true and provable. However, some mistakes, if mistake it was, have been removed from the Board’s purview to fix. Even if the Board were to be persuaded, on a hearing of the merits of the grievance, that the employer had erred, the grievor has not demonstrated how it could be within the Board’s jurisdiction to award the grievor a larger pay-for-performance award, given the wording of the Regulation, which effectively removes elements related to pay-for-performance from the grievances over which the Board has jurisdiction.

27If the issue of when the grievor was reclassified was an aspect of his compensation which was not integrally related to pay-for-performance, the Board could well have jurisdiction over it, as there is no exclusion of jurisdiction over a factual finding of whether the grievor was in fact re-classified on the first day he was paid as an ALR 21, January 1, 2002, or some other date, such as a date which fell outside of the fiscal year 2001/2002. However, the only reason the date matters to the grievor’s claim is because it would arguably change the calculation of his pay-for-performance award. The evidence makes clear that the transitional rules about pro-rating were an integral part of the delivery of pay-for-performance, especially in the year 2001/2002, when the compensation scheme was moving from a merit pay scheme with individual anniversary dates, to one where all employees in the management compensation plan had a common date for pay-for-performance purposes. They were also, no doubt, an integral part of costing pay-for-performance for the entire Management Compensation Plan. The transitional rules in evidence make it clear that pay-for-performance awards were pro-rated for others who had received a pay increase in the previous fiscal year, such as people who had received a merit award in the previous year, as well as for those who had been promoted or whose jobs were re-classified upwards. Given the design of the transitional rules, I do not see a way to separate out the issue relating to the timing of the re-classification from the subject of pay-for-performance. Put another way, if one removes the portions of this grievance which relate to the grievor’s claim for a pay-for-performance award which was not pro-rated, the issue about the date of the reclassification becomes irrelevant. In the result, I am persuaded that the Board does not have the jurisdiction to hear the portion of the grievor’s claim relating to his claim that there was a mistake when the employer treated the date of the change in his compensation upwards as the date of his re-classification for the purposes of its pay-for-performance calculations.

28The other aspect of the grievor’s complaint which the employer says relates to pay-for-performance reads as follows:

The implementation of the Employer’s pay-for-performance policy in 2003-2004 has been done retroactively, which is a violation of standard labour relations policy. The Employer has the right to change its policies, if it desires, but the changes must be made prospectively, not retroactively. Notice of the change in policy was only given in late 2005 (November or December), and therefore cannot be applied to the 2003-2004 performance bonus. Nothing on the bonus notification suggests it is anything but a lump sum bonus, payable for meeting performance standards. There is no mention anywhere of it being applied to future salary range revisions. The first notice of the change, as stated earlier, came in late 2005.

I agree that this is essentially a complaint about pay-for-performance as well, as the grievor is seeking additional compensation as remedy for what he claims is an improper pay-for-performance policy, and thus also beyond the Board’s jurisdiction.

29Further, and to the extent that one can separate out the general assertion that the employer is not permitted to change its policies retroactively, i.e. the employer is not permitted to later re-characterize money paid out as a lump sum as effective movement on the salary range, this is an issue that has been the subject of a previous award, Sumner , cited above, which dealt with requests similar to the grievor’s and those dealt with in the Pedder decision. The Board said the following at pg. 10 of the Sumner decision:

The grievors also outlined the history of the Management Pay for Performance Plan from 2001 onwards, which is not in dispute, but which does not form a basis for the relief the grievors are seeking. It is clear that there were across-the-board and automatic increases as well as performance awards during the earlier years of the plan. However, the chronology does not form a sufficient basis to find that the grievors could succeed in establishing that it was a term or condition of employment that the employer would not retroactively introduce the type of changes announced in late 2005. If anything, it confirms that the employer routinely announced compensation changes for managers on a retroactive basis. More specifically, there is nothing in that chronology, or the other material before the Board, that provides a basis for a successful grievance based on the idea that there was a past practice of providing automatic increases in a manner which would cause the Board to find that it was a continuing term or condition of employment that the grievors were entitled to a salary increase prior to and in addition to pay increases based on the performance award. As employer counsel noted, the amounts and percentages have varied, and the past practice includes legislated periods of total pay freezes such as under The Social Contract Act.

While acknowledging that retroactive changes to the compensation plan are a fact of life in the civil service, and that the employer has the right to make changes to the compensation plan, the grievors assert that reasonable notice of any change should be required, and that retroactive implementation should not involve changing the characterization of money already paid out. Employer counsel argued that there was no authority for the principle that the employer can only do retroactive changes in the manner the grievors suggest, and that in the end, the grievors are asking for exactly what the Pedder grievors were asking. On balance, the Board agrees with the employer’s submission, as there is nothing in the material submitted that supports an obligation to implement changes only in a prospective manner, or upon a certain amount of notice, or only in a way that leaves lump sums characterized as lump sum payments rather than retroactive salary. Much of the material submitted indicates instead that it has been a longstanding feature of the managers’ terms and conditions of employment that pay increases are implemented and calculated retroactively and with a variety of kinds of changes.

30Mr. Berenbaum did not rely on the history of the Management Compensation Plan for his assertion that the employer did not have the right to make the same retroactive changes as dealt with in Sumner. Instead he referred to standard labour relations policy. In the absence of any specific identification of a term or condition of his employment which provides a prohibition against retroactive change, whether or not in line with what the grievor sees as standard labour relations policy, the Board is of the view, similar to the remarks set out above from the Sumner decision, that no prima facie case has been made out on this aspect of the case. As in that decision, the Board is not persuaded by the grievor’s arguments that a prima facie case has been made out to the effect that it was a term or condition of employment that changes in compensation would not be made retroactively, or only with some specific type of notice.

Should the remainder of the complaint concerning recovery of portions of retroactive pay be dismissed as untimely?

31The remaining portion of the grievance relates to the grievor’s disagreement with the deduction of pay beginning September 11, 2003 and ending December 18, 2003. These deductions related to what the employer claims was an overpayment in the retroactive salary adjustments Review Officers received over two pay periods in September, 2002. In March of 2003, the grievor and other Review Officers were notified that the employer would be seeking recovery of the payments made in error. Meetings were held with representatives of the employer to clear up the situation in March, May and June, 2003. The grievor asserts that clarifying information remains to be provided, as there is a discrepancy between what was taken and what allegedly should have been taken, and there has been no explanation about how the error happened, what the error was, or why it took so long to discover.

32The employer asks that this remaining portion of the grievance dated April 4, 2006, be dismissed as untimely. Counsel notes that the language of Regulation 977 makes clear that the grievance had to be filed within 14 days of becoming aware of the issue, which at the very latest was September 2003, when the deductions actually started. The grievor disagrees, and argues that the employer has waived its right to make this objection by its own delay in objecting.

33Section 34 (1) of Regulation 977 (repealed), in effect at the time of the grievance, provides 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. 0. Reg. 168/96, s. 6 (1).

34In support of its request, the employer referred to the following case law where grievances have been dismissed as untimely: Charles Rice and the Crown in Right of Ontario (Ministry of Community and Social Services), PSGB# P-2006-2687, February 19, 2008 (Leighton); Nancy Marshall and the Crown in Right of Ontario (Ministry of Health and Long-term Care), PSGB# P-2004-2738, November 8, 2005 (O’Neil); Coccia and the Crown in Right of Ontario( Ministry of Community Safety and Correctional Services), PSGB# P-2003-3552, July 26, 2005 (Leighton); Gordon Campbell and the Crown in Right of Ontario (Ontario Realty Corporation), PSGB# P/0032/99, July 26, 2001 (Leighton); Bruce Kroeger and the Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services), PSGB# P/0060/99, March 18, 1999 (Willes); (OPSEU) Szabo and the Crown in Right of Ontario (Ontario Realty Corporation), GSB# 1811/98, February 19, 2001 (Herlich); (OPSEU) Smith et al and the Crown in Right of Ontario (Ministry of Community and Social Services), GSB# 2006-2107, 2006-2379, June 2, 2008 (Gray).

35As the grievor knew there was a live issue almost three years before he grieved, it is clear that the grievor did not meet the time limits of the Regulation. Counsel urges the Board not to exercise its discretion to relieve against this delay. Counsel acknowledges the factors to consider as to whether to exercise discretion to extend the time limits are those set out in the Becker Milk Company Ltd. and Teamsters Union, Local 647, (1978) 19 L.A.C. (3d) 217 (Burkett) and Greater Niagara General Hospital and O.N.A. (1981) 1981 CanLII 4449 (ON LA), 1 L.A.C. (3d) 1 (Schiff), relied on in the above-noted case law. These relate to the reasons for the delay, the length of the delay and prejudice to the employer.

36The reasons given for the delay in this matter are that the grievor was trying to resolve things internally with the employer, and did not want to escalate the matter to a grievance unnecessarily. As well, he testified that he understood that the time limits ran from when he received an answer that the employer was not willing to resolve the matter, and so he grieved within 14 days of the e-mail which made clear that the employer considered the discussions at an end. I agree with employer counsel that these are not reasons which have generally been considered sufficient to excuse delay of significant length, and that the time lines run from the date of awareness of the facts giving rise to the dispute. The Szabo and Smith decisions, cited above, are two examples of decisions supporting those principles.

37As to the length of the delay, employer counsel notes that the grievor waited for almost 3 years to file, a delay much longer than many of the above-noted cases in which the Board has dismissed, even for much more serious issues such as a discharge. Waiting several years to collect a number of issues relating to his pay is not a practice that should be encouraged, in the employer’s submission, as resolving issues expeditiously is important for relations with excluded employees. I agree with that submission as well.

38As to prejudice to the employer, and although the delay occurred at the outset of the grievance process, I am not persuaded that this is a significant factor in this case. The matter complained of, which is essentially the lack of justification offered for the deduction of pay over a number of months, is not one that will likely suffer greatly from the fact that memories fade over time. The issue relates to what are likely well documented pay changes, and there was no suggestion that those records no longer exist, or that there would not be a witness available to testify to their meaning. As well, there was no evidence that any of the employer’s representatives thought the grievor had abandoned his objection, or any reason to infer that from the mostly undisputed evidence about the course of dealing with the grievor concerning the issues raised.

39As a matter of the exercise of discretion according to the usual factors, notwithstanding the fact that prejudice to the employer does not appear a large factor, there are certainly not compelling grounds to extend time limits. However, as noted above, the grievor argues that the employer has waived its right to object on the basis of timeliness because it dealt with him over the course of a number of years without raising any such objection.

40The grievor relies on Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services) -Union grievance re “Max Plus Merit”, 2005 CanLII 55200 (ON G.S.B.) (Herlich) concerning waiver and International Language Schools of Canada v. Ontario Secondary School Teachers Federation, District 34, 2005 CanLII 40172 (ON L.A.) for the proposition that the employer should have objected at its earliest opportunity.

41In the Grievance Settlement Board’s decision on waiver relied on by the grievor, the Board quotes the following summary of the concept in an earlier decision of the Board Fung/Anand GSB # 1989-1798 (Stewart) as follows:

The principle that these cases establish is that an objection based on non-compliance with time limits is waived when there has been a failure to raise the objection in a timely manner, and the taking of a fresh step prior to raising the objection...

42The grievor had conversations with representatives of management about his issues, trying to settle the matter, and filed his notice of grievance on April 3, 2006, less than two weeks after he was advised they considered the matter closed. Two grievance meetings followed in July, 2006, and Mr. Berenbaum testified that the employer did not object on the basis of timeliness at the grievance hearings. On the following April 27, 2007, the grievor received a letter from the employer’s designee saying the grievance had been denied, in which no mention was made of time limits. This complaint was filed with the Board shortly thereafter on May 2, 2007. He said it was unclear whether he had received the employer’s response within the time limits applying to the employer, as he was not objecting on the basis of time lines.

43The grievor testified and argued that the employer participated at each step without raising any issue of timeliness until the first day of hearing on November 9, 2009, over three years after he had filed his grievance. Employer counsel suggested to him in cross-examination that the matter of time limits had been raised at one of the grievance meetings. The grievor did not recall that and said if there was any mention, it was as a future possibility, but there was never any notice to that effect before former counsel to the employer raised it in 2009 at the first hearing date. Nor was there ever any attempt to bring the grievance procedure to a halt. The employer did not bring any evidence to establish that it had raised the issue, either orally or in writing, before the first hearing date, when the issue was clearly raised. In these circumstances, it is my finding that the employer did not raise the matter in a timely manner, and that the concept of waiver as described in the above-cited jurisprudence, is applicable. In sum, I find that, the employer dealt with the grievor on its merits for almost three years, and took several “fresh steps” after the submission of the grievance, without objection to the grievor’s delay in grieving. These include conducting grievance meetings in 2006, replying to the grievance in 2007, and participating in setting the matter down for mediation in 2007 and 2008, and for arbitration in 2009. In doing so, I find the employer has waived its right to object on the basis of timeliness. Accordingly, I find that the portion of the grievance related to the employer’s recovery of the overpayment in 2003 may proceed, despite the lengthy passage of time, for which there is shared responsibility.

Summary

44In the result, for the reasons set out above, it is the Board’s finding that the portions of the grievance relating to the pro-rating of the grievor’s pay-for-performance award relating to the fiscal year 2001/2002, and the retroactive implementation of the employer’s pay-for-performance policy applicable to the fiscal year 2003/2004 are dismissed as falling outside the Board’s jurisdiction. By contrast, the portion related to the deduction of pay in 2003 may proceed to a hearing on the merits, as I have found that the employer has effectively waived its right to object to the timeliness of this grievance.