Loading...
HomeMy WebLinkAboutP-2005-1151.Karla Marshall.06-08-08 Decision Public Service Commission des Nj Grievance Board griefs de la fonction publique Bureau 600 ~ Suite 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1 Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 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 Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE Kathleen G O'NeIl Vice-Chair FOR THE GRIEVOR Melynda Layton Bamster & SOlICItor FOR THE EMPLOYER SImon Heath Counsel Mimstry of Government ServIces HEARING June 9 2006 2 DeCISIon ThIS deCISIOn deals wIth the employer's prelImInary obJectIOns to the arbItrabIlIty of the gnevor's claim for payment for travel tIme and expenses from November 1 2001 to December 31 2004 The employer's posItIOn IS that the gnevance filed on June 4 2005 IS untImely and should therefore be dIsmIssed wIthout a heanng on the ments The gnevor resIsts the motIOn on the basIs that she gneved as soon as she was aware of the terms and condItIOns of employment on whIch she bases her gnevance For the reasons set out below the Board has determIned that the matter may proceed to a heanng on the ments The evidence Ms Karla Marshall, the gnevor gave oral eVIdence and both partIes filed bnefs of documents As there was a substantIal amount of overlap wIth the eVIdence lIkely necessary to a determInatIOn of the ments of thIS matter It IS convement to set the maIn pOInts of It out here, In more detaIl than stnctly necessary for the determInatIOn of the prelImInary motIOn, In the Interests of potentIally reducIng the amount of eVIdence necessary at a heanng on the ments The background facts are not substantIally In dIspute, although theIr sIgmficance IS at the core of the controversy The gnevor 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 temporanly 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 3 posItIOn at Ottawa Carleton DetentIOn Centre (OCDC) to develop her managenal skIlls The employer agreed on condItIOn of a J ob swap wIth another OperatIOnal Manager Pnor 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 penod up to SIX months, whIch would have ended In June 2001 The gnevor dId not agree wIth employer counsel's suggestIOn that thIS letter applIed throughout the penod she was at Rideau. The assIgnment was extended beyond the SIX months to Apnl 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 Indefimtely 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 Apnl 29 2003 wIth the exceptIOn of the penod of an OPSEU stnke when the gnevor worked at OCDC she worked at Rideau, although she was never consIdered to hold a permanent posItIOn there Much of the employer's questIOmng was aimed at establIshIng that the gnevor had sufficIent expenence 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 gnevor'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 dunng the 2002 OPSEU stnke She receIved mIleage expenses only At that tIme, she said she dId not receIve any polIcIes concermng payment for travel tIme or expenses As a general matter the gnevor testIfied that she usually was told by her supervIsor when to put In for travel expenses, and what form to use 4 On Apnl 29 2003 when the first phase of the new St. Lawrence facIlIty had been completed, the gnevor reported there on assIgnment to the Secure Treatment Centre She receIved a letter dated Apnl 23 2003 whIch together wIth the gnevor's testImony establIshes that for the first four weeks, she was consIdered on a temporary traInIng assIgnment dunng whIch she receIved payment for mIleage The gnevor testIfied that she dId not have any dIscussIOn wIth colleagues at that tIme about travel allowances The gnevor's formal reportIng date at St. Lawrence was consIdered as May 28 2003 The personnel documentatIOn of the gnevor'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 Apnl23 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 managenal staff, and the gnevor 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 charactenzed the dIscussIOns leadIng to the agreement to pay travel expenses whIle In Ottawa as an Instance of the gnevor's havIng negotIated wIth the employer about travel expenses The gnevor'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 5 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 gnevor was appoInted to a permanent posItIOn WIth OCDC Instead. A letter dated July 5 2005 confirmIng the gnevor'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 gnevor 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 gnevor as one of26 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 gnevor' 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 pnor to her May 26 2005 gnevance when another manager told her where to look for It. She had been Involved In dIscussIOns at that tIme WIth other OperatIOnal Managers dunng 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 dunng her entIre penod at Rideau. 6 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 penod, 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 gnevor then submItted her request for payment of travel expenses When they were not approved, she gneved by way ofwntIng to the Deputy Mimster ofCommumty 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 gnevor 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 pnor to filIng her gnevance The gnevor 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 expenence refemng 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 7 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 refemng to relocatIOn expenses when she provIded that answer The Parties' Submissions The gnevor's posItIOn on the ments IS that she IS entItled to travel allowance (consIstIng of mIleage, travel tIme and meals) from November 2,2001 when she was temporanly 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 gnevor IS Said to have been treated IneqUItably contrary to the Staffing OperatIng PolIcy Employer counsel argues that the matter should be dIsmIssed, as the gnevance 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 gneved and the matter IS not a contInuIng gnevance As to the gnevor'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 dISCnmInatIOn on human nghts grounds, should not attract the exerCIse of the Board's dIscretIOn to extend the tIme lImIts 8 As well, the employer takes the posItIOn that It was not acceptable that the gnevor dId not famIlIanze 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 nghts were and to gneve sooner Counsel argued that when the gnevor ongInally 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 gnevor 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 nghts As well, the employer argues that the tImIng of the gnevance, 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 gnevance 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 Croyt,n in Riszht 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) 9 McFadden and The CroYf,n in Riszht of Ontario (Ministry of Community Safety and Correctional Services) PSGB #P/0019/99 (Willes) as well as two from the Crown Employees Gnevance 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 CroYf,n 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) 19 L.AC (3d) 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 gnevance IS a lImIted pay claim, rather than a dIscharge or a case raisIng Issues such as human nghts 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 gnevor was unaware of her nghts untIl shortly before she gneved, 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 gnevance On behalf of the gnevor 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 gnevor filed her gnevance 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 gneved, and acted promptly thereafter 10 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 gnevor 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 gnevance The gnevor'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 gnevance was not anger Rather the eVIdence supports a findIng that, pnor to her transfer to OCDC In 2005 she was not aware of her nght 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 stnke and the traInIng penod 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 clanfy 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 gnevance Counsel maIntaInS that It IS now too late to assert an obJ ectIOn to tImelIness In support of the gnevor's posItIOn, counsel relIes on the folloWIng case law' Laird and The Crown in Riszht 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 Gnevance Settlement Board (GSB) OLBEU (Clements) and The Crown in Right of Ontario (Liquor Control Board) GSB 112/80 (Pnchard) 11 Counsel dIstIngUIshes the cases cIted by employer counsel on the basIs that they all deal wIth sItuatIOns where the gnevor knew about the basIs for theIr gnevance but waited. Here the sItuatIOn IS dIfferent because the gnevor's uncontradIcted eVIdence IS that she dId not know of the basIs for her gnevance pnor to the week before she gneved. When aSseSSIng the Impact on the employer counsel urges the Board to Include In the balance the employer's own behavIOur In not bnngIng 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 heanng 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 sIgmficant as dIscharge In the grand scheme of thIngs, but that where there IS no eVIdence that the gnevor dId not act dIlIgently on becomIng aware of the InfOrmatIOn on whIch she bases her gnevance, there IS no reason that the gnevance should not be heard. In reply employer counsel suggests that It IS sImply not credIble that, dunng the long commute for whIch the gnevor 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 umt employees, because they are supposed to be able to take ImtIatIve 12 * * * The Issue before me IS whether the gnevance should be dIsmIssed for delay as the employer asks, gIven that the facts underlYIng the gnevance occurred In a tIme penod that vanes from four years to about SIX months from the date of the gnevance 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 descnbed In subsectIOn (2) who IS aggneved about a workIng condItIOn or term of hIS or her employment may file a gnevance wIth hIS or her deputy wIthIn 14 days after becomIng aware of the workIng condItIOn or term of employment gIVIng nse to the gnevance OReg. 168/96 s 6 (1) The pOInt of departure, gIven thIS wordIng, must be when dId the gnevor become aware of the workIng condItIOn of term of employment gIVIng nse to the gnevance? 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 gnevance ThIS a qUIte dIfferent startIng pOInt than In the cases cIted from the Gnevance 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 gnevor 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 gneved. 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. 13 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 gnevor wIll eventually be successful In her claim At thIS pOInt, It IS assumed that the gnevor's case can be proven. There IS a lIve dIspute about whether there was a term or condItIOn of employment entItlIng the gnevor 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 gnevor IS entItled to a heanng on that Issue In acceptIng the gnevor' s eVIdence as to the reason for filIng when she dId, It IS the Board's findIng that the vanous InteractIOns that the gnevor had dealIng wIth travel expenses pnor 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 sIgmficance of the conversatIOns she had shortly before she filed her gnevance Nor IS the eVIdence persuasIve that the gnevor 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 gnevor should have been more dIlIgent In dIscovenng 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 wntten 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 penod February 2002 to March 2004 whIch generated travel expenses for some OperatIOnal Managers In certaIn CIrcumstances not specIfically covered by the general 14 Staffing OperatIOnal PolIcy SIgmficantly the two maIn prongs of the employer's approach to travel expenses, as suggested by employer counsel In cross-eXamInatIOn, do not appear In wntIng. (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 vanous documents fit together as well as the practIce, belles the complexIty of the sItuatIOn. ThIS IS partIcularly so when set agaInst the ShIftIng assIgnments and transfers expenenced by many OperatIOnal Managers as decIsIOns changed about decommIssIOmng old and bUIldIng new facIlItIes In the penod In Issue It IS true, as counsel argued, that managers are often expected to show more ImtIatIve than bargaInIng umt members However when consIdenng the awareness necessary to start the tIme runmng under the tImelIness provIsIOns, It IS appropnate 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 gnevor was not aware of all the factors gOIng Into the payment or non- payment of travel expenses gIven the vanety of applIcable documents and sItuatIOns eXIstIng dunng the penod In dIspute In thIS case, In sum, the eVIdence IS persuasIve that It IS appropnate to consIder the tIme penod under s 34(1) whIch begIns wIth the gnevor's awareness, to have started runmng 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 gnevance ought to be heard on ItS ments 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 15 Further although the Junsprudence holds that the subJectIve element IS not unlImIted, and must be tempered by a consIderatIOn of the Impact on a fair heanng, the other eVIdence dIscloses no ObVIOUS ImpedIment to a fair heanng for both sIdes At thIS stage, the dIspute appears to be over the content and InterpretatIOn of the gnevor's entItlements under her terms and condItIOns of employment, In respect of whIch the vanous transactIOns appear fairly well documented If there IS a problem of proof dunng the heanng whIch anses from the lapse of tIme between the facts complaIned of and the gnevance, argument may be made as to the Board's appropnate response, as to remedy or otherwIse, In the event the gnevance were to be successful In whole or In part on the ments The tIme penod between the latest penod In dIspute and the gnevance 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 gnevance the oblIgatIOn, If any to pay travel expenses would have been a recumng one dunng the penod claimed. Although the earlIest penod In dIspute IS over four years before, a much longer and therefore more problematIc penod of tIme, the Board's remedial response, If any can take that Into account If appropnate 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 heanng on the ments Dated at Toronto thIS 8th day of August, 2006