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Home My WebLink AboutP-1999-0006.Clayton.00-05-16 Decision - -. ""- - ...... -- , r..-- BE; PSGB # P/6/99 P/12/99 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN DavId Clavton, Genevieve BlaIS GIievor - and - The Crown m Right of Ontano (Mimsm of the SohcItor General and CorrecTIonal ServIces) Employer BEFORE Deborah ID LeIghton Vice ChaIr FOR THE Gan PIckenng GRIEVOR FOR THE Coos Jodhan, Len M~ EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARING Apnl 5 2000 Dunng the Ontano PublIc ServIce Employees Umon stnke In 1996 Ms Blais held the posItIOn of Area Manager ProbatIOn and Parole ServIce, In the Eastern RegIOn. She was a schedule SIX employee On Nov 6th 1998 she gneved for the penod of February 26 to Apnllst, 1996 I worked well beyond my regular hours of work and was compensated for these extra hours at straight tIme Please be advIsed at the tIme of the stnke, I held the posItIOn of Area Manager ProbatIOn and Parole ServIce, Eastern RegIOn, CorrectIOnal ServIces DIVISIOn, 2730 Ins Street, Ottawa. I belIeve that all hours beyond my regular hours should have been paid at tIme and 1/2 I also belIeve that the calculatIOn of overtIme hours as set out In the O'Donnell decIsIOn (PSGB P/0023/96) should also be applIed to my rate of compensatIOn. In addItIOn, I belIeve that I was entItled to ShIft premIUms and standby pay dunng the stnke WhIle the Mimstry InItially advIsed that the Issue of compensatIOn dunng the stnke was under reVIew and the Mimstry's posItIOn may change, It IS now qUIte clear that I must raise the Issue through the gnevance process Mr DavId Clayton was the RegIOnal BusIness AdmInIstrator Eastern RegIOn dunng the OPSEU stnke He IS also a Schedule 6 employee He filed hIS gnevance on Sept. the 15th, 1998 allegIng: for the penod February 26 to Apnl 1 1996 I worked well beyond my regular hours of work and was compensated for these extra hours at straight tIme Please be advIsed at the tIme of the stnke, I held the posItIOn of regIOnal busIness admInIstrator Eastern regIOn, correctIOnal servIces dIVIsIOn. I belIeve that all hours beyond my regular hours should have been paId at tIme and 1/2 I also belIeve that the calculatIOn of overtIme hours as set out In the O'Donnell decIsIOn(PSGB P/0023/96) should also be applIed to my rate of compensatIOn. In addItIOn, I belIeve that I was entItled to ShIft premIUms and standby pay dunng the stnke WhIle the Mimstry ImtIally adVIsed that the Issue of compensatIOn dunng the stnke was under reVIew and that the Mimstry's posItIOn may change, It IS now qUIte clear that I must raIse the Issue through the gnevance process At the outset of the heanng Into these matters, the employer brought a motIOn to dIsmIss the gnevances for not beIng tImely filed. The gnevors agreed to proceed wIth the prelImInary motIOn first, and that dependIng on the outcome, the ments of the gnevances would be addressed at a subsequent heanng day 2 The gnevors gave eVIdence to support theIr posItIOn that the gnevances were tImely and should be heard on the ments Mr Clayton testIfied that he was aware that after the stnke ended he was not compensated for overtIme at tIme and a half or for standby pay FolloWIng the stnke, he was paid for hIS overtIme at straight tIme In Apnl 1996 When asked In cross-eXamInatIOn what reason he had for not filIng a gnevance In Apnl 1996 Mr Clayton testIfied that he knew that semor management were reVIeWIng the Issue of compensatIOn for managers who worked through the OPSEU stnke He attended meetIngs where the Issue was dIscussed. He said that to thIS day he had had no response to hIS gnevance from semor management. Ms Blais testIfied that eIght to mne days after the stnke ended there was a bnefing meetIng, and managers were advIsed that If they worked over 44 hours In a week they would be paid overtIme But there was no InformatIOn gIven on the rate of payor other compensatIOn at that meetIng. When she quened thIS wIth her supervIsor Mr Roy he advIsed her to "Wait and see " Ms Blais receIved her overtIme pay on Apnl 18th 1996 and It was paId out at straight tIme She questIOned Mr Roy agaIn about whether the managers would be paid tIme and a half for overtIme and he told her that he was stIll WaItIng for a decIsIOn from the Mimstry Ms BlaiS testIfied further that she had worked In the Mimstry SInce 1970' she became a manager In 1986 She had both a trust In and loyalty for the Mimstry She said that the Mimstry IS not known to make decIsIOns In a tImely manner Ms BlaIS took a new posItIOn WIth the Mimstry of the Attorney General In March 1998 It was not untIl October 21 st 1998 when she, amongst others, receIved an emaIl whIch reported the decIsIOn of the government to pay certaIn elIgIble schedule SIX employees overtIme at tIme and a half that Ms BlaiS realIzed that there would be no compensatIOn for tIme spent on standby She filed her gnevance on November 6th 3 1998 wIth the Deputy SOlICItor General, Tim Millard. He dId not respond to her gnevance Seven months later In May 1999 Ms BlaIS forwarded her gnevance to the board. Mr Jodhan argued on behalf of the employer that Ms Blais and Mr Clayton's gnevances were not tImely He cIted the reqUIrement under SubsectIOn 34(1) of the PublIc ServIce Act that complaInts must be made wIthIn 14 days of the gnevor becomIng aware of the cause for complaInt. He relIed on Vipan and Johnson and the Mimstry of Commumtv and SocIal ServIces, P/0003/99 to argue that the board has held that a sUbjectIve test must be applIed In decIdIng whether the gnevance IS tImely and that the board has dIscretIOn to consIder the reason for the delay He argued further that the gnevors here have not provIded sufficIent eVIdence to JustIfy a delay of 16 months In Mr Clayton's case and 18 months In Ms Blais' Mr Jodhan noted that for polIcy reasons - fairness to the employer - the gnevances should be dIsmIssed. Mr PIckenng argued for the gnevors that once they both realIzed that they were not gOIng to be paid for standby they gneved Immediately He submItted that the eVIdence was clear that the Issue of overtIme and premIUm payments was beIng addressed by semor management. He relIed on a memorandum from Margaret BodkIn, DIrector of Human Resources, dated November 9 1998 whIch announced the decIsIOn of Management Board of CabInet to pay overtIme at tIme and a half for certaIn elIgIble employees to support hIS argument. He argued further that the gnevors knew that the Issues were beIng consIdered by semor management and that no person In authonty had demed the claim for standby They were of the VIew that It was not unusual for the extended delay 4 DECISION The gnevors In thIS case clearly filed theIr complaInts well beyond the reqUIred tIme lImIts under the Act. I am not persuaded that It was only when the overtIme payments were announced In November 1998 that Ms Blais realIzed that she had a claIm for standby Ms BlaIS and Mr Clayton knew that they had not been compensated for standby when they receIved other premIUm payments (overtIme) In Apnl 1996 The questIOn IS then was It reasonable for them to delay In filIng theIr gnevances for 16 - 18 months, respectIvely? The only reasons gIven were that they belIeved the Issues were beIng addressed by semor management and there had been no clear IndIcatIOn that the Issue of standby had been deterrlllned by the employer Ms BlaiS had been adVIsed ImtIally In 1996 by her supervIsor to "Wait and see" These reasons certaInly JustIfy some delay There IS clearly a reluctance for managers to file gnevances, especIally when they belIeve semor management are consIdenng theIr claims But I am not persuaded that these reasons JustIfy such a sIgmficant delay Unless there IS a clear agreement between the partIes that the employer IS consIdenng the reason for the complaInt or claim and no formal gnevance need be filed, gnevors must preserve theIr nghts by filIng a tImely gnevance For the reasons noted above, the gnevances are hereby dIsmIssed. Dated at Toronto thIS 16th day of May 2000 ~ -.: -- -- 'Z.,. . . .. . ) . .1 .. . ':. ._ , " . I. n --_- .:s. DJ.D LeIghton, Vice-Chair 5