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HomeMy WebLinkAbout1989-0284.Hadwen et al.91-09-26 ONTARIO EMPL O Y/~S DE LA COURONNE CROWN EMPLOYEES DE L'ONTAF~IO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 ~NDA$ STRE~ WES~ SUt~ 2~, TORONTO, ~TAR~. MSG 180, RUE DUNDAS OUEST, BUREAU 2 ~, T~ONTO (ONTA~JO). M5G 1Z8 FACSIMtLE/T~COPlE : ~ ~6) 326- r396 284/89, 285/89, 306/89, 307/89, 308/89, 309/89, 310/89, 3[[/89 Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE ~RIEV/~NCE SETTLEMENT BOARD BETWEEN OPSEU (Hadwen et al) ~rievor - The Crown in Right of Ontario (Ministry of Revenue) Employer BEFORE: M. Gorsky Vice-Chairperson M. Lyons Member ~. Roberts Member FOR THE R. ~eale¥ ~RIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE M. Failes EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HE~RIN~ July 31, 1991 DECISION Originally there were 23 Grievors included in the following grievances: GSB Numbers 284/89 Hadwen; 285/89 Jasmins/Kirby; 306/89 Burrows et al.; 307/89 Bristow et al.; 308/89 Strong; 309/89 Richards; 310/89 Pagett; and 311/89 Booth et al. At the commencement of the hearing we were informed that two of the grievances had been withdrawn: Kirby, included in 285/89 and Testa, included in 311/89. All of the Grievors are employed as Field Auditors and are classified as Financial Officer 2 in the Retail Sales Tax Branch, Audit Section of the Ministry of Revenue in its Oshawa office. As part of their duties they travel to various locations in order to conduct retail sales tax audits. When they are required to conduct an audit at a location away from their office they either leave directly from their home, or they may first report to their office before leaving for the location where the audit is to be cOnducted. When they leave from their home for the site where the audit is to take place, they may be away from the office~for several days at a time. The grievances concern the proper calculations of travel time and mileage under articles 22 and 23 of the collective agreement. Reference was made to Hay_ford, 1398/87 (Kates). In Abab~o et al, 1295/88 (Watters), the Hayford case was commented upon, at p.l: At the commencement of the hearing the Board was advised the parties agreed, as a matter of principle, that the Employer had breached the above-mentioned articles in the calculation of distance and travel time entitlements. This agreement was as a consequence of the award in Hayford, 1398/87 (Kates). Briefly stated, that award led the parties to conclude the Employer was obligated to pay actual distance and travel time in contrast t6 an amount calculated pursuant to the "lesser of principle" of which more is said below. The policy with respect to travel time followed by the various ministries prior to the Hayford case is set out at page 7 of that case: It is common ground that the Ministry applied its travel policy directive to the grievor's claim for reimbursement and paid him the lesser amount representing the distance between his place of residence or his headquarters and Kingston, Ontario. The employer conceded that had the grievor's place of residence been located closer to Kingston than his headquarters at Millbrook the employer would have reimbursed his travel costs fromhis place of residence. The employer simply argues that pursuant to its discretion under~ its policy directive it was entitled to determine an appropriate travel allowance for purposes of being "on the employer's business" under Article 22.1 of the collective agreement. And, in exercising that discretion the employer's policy clearly excluded from payment that portion ~f the trip between his place of residence at Dunsford and his headquarters location at Millbrook. It is also conceded that the employer reimbursed the grievor for time spent engaged in travelling to and from his place of residence in accordance with the requirements of Article 23.3 of the collective agreement. There was no suggestion, having regard to the objective of that provision, that the grievor was anything but on the employer's business for purposes of payment when he travelled using his own automobile "directly" to and from his place of residence. The Board in Hay~ord. concluded at p. 16~17: He was required to attend.a training course at Kingston and was authorized to use his Own automobile for that purpose. He was not required to report to his regular place of employment at Millbrook in order to achieve his destination. He began and ended his trip at his residence at Dunsford and as such he was on travel status at that'point. As a result he was clearly "on the employer's business" for purposes of making a legitimate travel claim. Moreover, what convinces us of the correctness of that conclusion is the employer's admission that had the grievor's place of residence been closer to Kingston than Dunsford, Ontario, he would have been "on the.employer's business" from that point. Accordingly, we hold that the employer's policy iDsofar as it has been applied to the grievor's situation is inconsistent and in conflict with Article 22.1 of the collective agreement and has no force or effect. On January 11, 1989, following the Hayford decision, which is dated July 5, 1988, E. C. Farragher, Director, Personnel Services Branch of the Ministry of Revenue, sent a memorandum to a number of management persons (Exhibit 3) which is as follows: As you will be aware, bargaining unit employees who travel directly from their homes to field assignments are compensated for travel time (Art. 23.1 and 23.3) and kilometres travelled (Art. 22) in accordance with the "lesser of" principle - ie. from home to destination and return or assigned Headquarters to destination and return. This practice was in accordance with government policy. A recent grievance settlement board award, however, requires that his practice be changed. The board's award in Hayford (Corrections), G.S.B. # 1398/87 determined that employees must be compensated for all time and distance while travelling on Ministry business. The board found that government policy limiting compensation for travel on a "lesser of" basis, as described above, conflicts with the collective agreement, as the agreement contains no such limitation. The Human Resources Secretariat has accepted this interpretation of the current collective agreement as correct. Accordingly, employees should, from the date of this memorandum be compensated for all time and kilometres travelled while on Ministry business. It should be noted that employees will not be compensated for normal travel from home to assigned headquarters. Please ensure that all employees affected are notified of this change. Should you require further clarification of this memorandum please contact either Jack Julien (6055), Des Kirk (6059), or Dave Daniels (6901). Exhibit 3 did not pr~ovide for retroactive payments prior to its date. Th! position of the union was that as in Ababio, the ! Grievers in t~is case should be entitled to retroactivity in accordance wi~h the Hayford decision from the date of that award, being July 5, 1988. The grievances proceeded in the usual fashion and were denied at the second stage. After being remitted to arbitration and during th~ pre-hearing, there Was an agreement between the parties to adjourn the hearing of the grievances pending the decision in t~e Ababio case, which is set out in Exhibit 5: CONFIDENTIAL June 8, 1990 MEMORANDUM TO: S.J. Ivanoff Retail Sales Tax Branch Audit Section FROM: Des Kirk Supervisor Labour Relations Personnel Services Branch SUBJECT: Grievances G.S.B. # 284/89 Hadwen 285/89 Jasmins/Kirby 506/89 Burrows et al 307/89 Bristow et al 308/89 Strong 309/89 Richards 310/89 Pagett 311/89 Booth et al You iwill recollect that you represented the 23 grievers lnclI' uded in the above-noted grievances at a pre-hearing at ~he Grieva,nce Settlement Board on August 1, 1989. At ~hat time an Agreement was reached to adjourn these grievances sine die, pending the outcome of the Board's award in the case of Ababio et al (G.S.B. # 1295/88). As ~ou are aware, the Ababio et al decision has been handed down in respect of 12 grievers in the Retail Sales Tax Field Office, Toronto. They were successful in gaining retroactive application of the "Hayford Award" to July 5, 1988. However, in light of the Board's comments and reasoning in granting retroactivity to these'grievors, the Ministry does not intend to grant the same retroactivity automatically to the grievors you represent. You may, therefore, wish to consult with your Union's lawyer regarding seeking a hearing date for your grievances before the Board. I would advise you that the Ministry's position at the Board will be that you and'the grievors you represent are not entitled to retroactivity beyond the normal 20 day rule based on existing jurisprudence, ie beyond January 11/89 (approx.), which is the date upon which the "Hayford" award was implemented Ministry-wide. If you would like any further clarification of this issue please feel free to call me. Des Kirk It was the position of the Union that the Grievors were not aware of the Hayford decision until the posting of Exhibit #3, and that all of the grievances were filed within twenty days of .the various grievors becoming aware of that award. It was submitted that the Ministry had wrongfully benefitted from the imposition of the "lesser of" policy at the Grievors' expense and that, accordingly, the Grievors ought to be entitled to the benefit of the Ha3ford decision retroactively to the date of that award. It was the position of the Union that there was no material difference between the facts found in the Ababio case and those in the cases before us. Accordingly, it was submitted that this panel of the Board was bound by the Blake decision and, 6 therefore had to fol16TM Ababio. Counsel for the Union referred to Ababio (at p.1): ,.. Each grievance stated that the Employer was in violation of articles 22 and 23 of the collective agreement. The grievors requested that the Employer be ordered to comply with these provisions. They further claimed retroactive reimbursement together with interest. It was the position of the Union that it was irrelevant that the twelve grievances in Ababio were submitted on October of 1988, and that the grievances in the cases before us were filed in January, February and March of 1989. The factual basis for the grievances was said to be the same and they were all filed by the Grievors as soon as they had notice of the Hayford award. The time difference in the filing of the grievances was said to affect only the quantum of the retroactive payment. It was further submitted that the fact that'the grievors in the Ababio case were employed at an office other than the Oshawa office of the Ministry was also irrelevant. The grievors in both cases were required to use their automobiles to travel to audit sites on behalf of the Ministry and were paid time and travel on the basis of the "lesser of" policy referred to in Ha~croft. In Ababio, at p.6-8, the Board rejected the union's claim for retroactivity back to February 1981, when the "lesser of" policy was first introduced. The Union in this case relied on the alternative position taken by the union in Ababio, at pp.8-9: It was the alternate position of the Union that retroactivity should extend back to the date of the Hayford award, that being July 5, 1988. Counsel noted that the grievances were filed immediately after the grievors learned of the award. He submitted that they should be entitled to take advantage of the Hayford interpretation from it's effective date as the Employer's "lesser of principle" ceased to be valid thereafter. Lastly, it was asserted that the Employer would not be prejudiced by an order which in effect would require it to comply with "the law" as articulated in Hayford. The employer opposed this alternate claim. It submitted that an onus existed on the Union to bring a timely grievance. Again, this Board was urged to limit relief to twenty (20) days prior to the date of the grievances. After considerable thought, the Board has decided to award retroactivity to the date of the Hayford award. We have been persuaded that rigid adherence to the twenty (20) day rule would not be appropriate in this instance. The Board considers it material that these grievors filed their grievances as soon as Hayford came to their attention. This step was taken shortly after the release of the award and without any delay on their part. The content of the decision clearly demonstrated that their reliance on the opinion of management had been ~misplaced. Given these circumstances, and the Employer's concession that Hayford dictated a change in their pre-existing policy with respect to the calculation of distance and travel- time entitlements, we remain unconvinced that it would be inequitable to the Employer to so extend retroactivity. The Board wishes to make clear, however, that such extension is premised entirely on the factual situation before us. Counsel for the Union characterized the conclusion of the board in Ababio as having been based on the concession by the employer that the Hayford case dictated a change from the previous policy and that the grievors in that case had filed their grievances as soon as they learned of the Hayford decision. We are asked to find that the facts in the cases before us differ in no material way from those before the board in Ababio, and 8 that in following Bla~'~"~we 'ought to award retroactivity to the Grievors from the date of the release of the Hayford award on July '5, 1988. Counsel for the Employer stated that we ought to draw no conclusions from the agreement by the parties to adjourn the hearing of these cases until the rendering of the Board's award in Ababio. There was no suggestion that the adjournment was to have any effect on this Board. If Ababio is to be binding on us it has nothing to do with the agreement to adjourn the hearing of the cases before us. The essential position of the Employer was that Ababio was wrongly decided in a "technical legal sense and from a policy perspective." It was also argued that the facts in Ababi0 were materially different from those in the cases before us and that that decision should be'restricted to the specific facts and circumstances affecting the grievors in that case. Counsel for the Employer relied on the statement by the board in Ababio at p.9: "The Board wishes to make clear, however, that such extension [of retroactivity] is premised entirely on the factual situation before us." We would find.that such statement requires us to examine the facts in both cases to see whether they are materially different. If they are not, we would have to examine the extent to which Blake binds us to follow Ababio. 9 In arguing that Ababio was wrongly decided, counsel for the Employer stated that the Board in that case had not considered the fundamental question of jurisdiction {which it was stated had not been put to them) relating to the grievances being out of time by virtue of article 27.13 of the collective agreement: Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn. Counsel for the Employer relied upon Rolfe, 116/89 (Hatters) at pp.6-7: It is readily apparent to the Board that the instant grievance was not referred to arbitration in a timely manner as required by article 27.4 of the collective agreement. The actual referral on October 12, 1.989 was well outside the fifteen (15) day period contemplated therein. The Board agrees with the submission of the Employer that the time limits set out in the grievance procedure are mandatory in nature and that we do not possess requisite authority to extend same. In the Anderson award the Board made the following comment with respect to these time limits: "We agree that the time limits in the collective agreement are mandatory and that the parties have agreed in Article 27.11 (now article 27.13) upon. a specific penalty for non-compliance. We further agree that this Board lacks the jurisdiction, such as that given to boards of arbitration governed by the Labour Relations Act, R.S.O. 1980, Chap. 228, to relieve against non-compliance with time limits. Moreover, even if there were such statutory authority, the parties have, in Article 27.14 (now article 27.16), denied the Board jurisdiction to enlarge time limits .... " (pages 4-5) In a similar vein the Board in Mahendra, after citing articles 27.13 to 27.16 inclusive, stated: 10 · "The above language renders the time limits mandatory and, unlike th~ Labour Relations Act, there has been nothing added to the Crown ~Employees Collective Bargainin~ Act to give .a board of arbitration the jurisdiction to relieve against ~ven the most minor violations of mandatory time limits. The Union concedes, therefore, that if the time limits called for under the collective agreement were not complied with, the Board has no alternative but to dismiss the grievance."' (page 7) The Board concludes that we lack the jurisdiction to hear this grievance and that it must therefore be dismissed. Counsel for the Employer also Submitted that this is not a case of a continuing grievance and relied on two cases from the private sector. The first of these cases is Re Automatic Screw Machine Products Ltd. (1972), 23 L.A.C. 396 (D. L. Johnston), at pp.404-5, where the board adopted the principles, as'set out in the case of C & W Asphalt Paving Co. (1967), 18 L.A.C. 156 (Palmer): In passing it should be pointed out that provisions such as the one in question are not enforced where the act giving rise to the grievance is of a continuing or repetitive nature: Re Retail, Wholesale & Dept. Store Union, .Local 461, and Ca~ada Bread Co. T,td. (1963), 14 L.A.C. 296~ (J. A. Hanrahan, chairman). In such cases those violations which are the subject of a "timely" grievance are arbitrable: Re U.A.W. and Massey-Harris Co. Ltd. (1952), 3 L.A.C. 1016 (H. E. Fuller, C.C.J., chairman). ~The rationale behind this exception was stated by Mr. Justice Laskin (then Prof. B. Laskin, chairman) in Re U.A.W. and C.G.E. Co. (Davenport Workers) (1952), 3 L.A.C. 980 at p. 982: "Where the alleged violation by the Company is of a continuing nature, .in the sense that the jobs or situations giving rise to the violation are of a recurring kind, it does not follow that failure of the Union or an employee to press for relief on certain of those jobs or matters bars them from 11 raising the question in any subsequent case. Again, the relevant inquiry is whether the claim for relief was made within a reasonable time after the matter in issue arose. It is not, in this Board's view, a tenable principle that waiver of rights in any one case amounts to a complete waiver for all like cases. $o long as the Collective Agreement affords a basis for relief against any situation, the party entitled to its benefits may assert its rights or refrain from asserting them in any particular instance, subject perhaps, to estoppel if there has been any misleading representation upon which the other party has relied to its detriment." In the instant case, however, the latest alleged violation of the agreement occurred more than five working days before this grievance was lodged. Again, no exception as to wages exists in the agreement as is sometimes the case: see e.g., Re U.A.W., Local 458, and Massey-Ferguson Ltd. (1958), 9 L.A.C. 153 (H. D Lang, C.C.J., chairman). Consequently, this grievance is barred from arbitration at this time. It should be noted, however, that if the company continues with their practice under art. 13(c), the union is not precluded from bringing a "timely" grievance. The second case from the private sector on the subject of retroactivity relied upon by the Employer was Re St. Raphael's Nursing Homes Lt~ (1985), 18 L.A.C. (3d) 430 (Roberts), at pp.432-433: This brings up the second issue in the arbitration, i.e., the matter of retroactivity. The union claimed full retroactivity to 1982, even though the grievance was not filed until November 20, 1984. The employer contended that any relief granted in this arbitration ought not to be made retroactive beyond this latter date. Both parties claimed as the basis for their submissions on this point that they were innocent, in the sense of there being no bad faith in either the prior interpretation of the employer or the delay in filing the grievance. Indeed, there was nothing in the evidence to indicate otherwise. There was nothing to suggest that any equity existed to prevent the union from succeeding on its grievance. Likewise, there was nothing to suggest that the employer should be estopped upon any equitable ground 12 from benefiting from application of the usual rule regarding retroactivity in the case of continuing breaches of a collective agreement. The usual rule with respect to continuing breaches of a collective agreement is that: · .. the relief or damages awarded retroactively in such circumstances may be limited by the t~me limit. Thus, where a grievance claimed improper payment and the grievance was allowed, the award limited the damages recovered to five full working days prior to the filing of the grievance, which was the applicable time limit for initiating the grievance. Brown and Beatty, Canadian Labour Arbitration, 2nd ed. (1984), para. 2:3128, at p. 96. In short, the time-' limit for filing the grievance bars any recovery for that part of the continuing breach which occurred before the commencement of that time-limit. · . Limiting the recovery of relief in this way where the violation of the agreement is of a continuing nature, seems to be in line with the acknowledged policies underlying the application in a similar manner of statut~es of limitations in civil actions. These policies ... are designed to safeguard the interests of the defendant in two ways. Firstly, they seek to protect his interest in at some time being able {o rely on the fact that he no.longer will have to preserve or seek out evidence to defend the claims against him. Secondly, they grant him protection "from insecurity, which may be economic or psychol'ogical, or both"; at some point in time he ought to be made secure in his reasonable expectation that contingent liabilities will no longer be asserted by legal action to disrupt his finances and affect his business and social relations. G.D. Watson, "Amendment of Proceedings After Limitation Periods," 53 Can. Bar Rev, 237'(1975), at pp. 272-3. Barring the existence of circumstances which would make it inequitable for a party to rely upon this rule, boards of arbitration have consistently limited the right to recovery for a continuing breach of a collective agreement to the period of time within which it was permissable to file the grievance: see Re Union ~as Co. of Canada Ltd. and Int'l Chemical Workers, Local 741 (1972), 2 L.A.C. (2d) 45 (Weatherill); ~_~ U.S.W., Local 7105 and Automatic Screw Machine Products Ltd. (1972), 23 L.A.C. 396 (Johnston); Re U.A.W. and National Auto Radiator Manufacturing Co. (1967~, 18 L.A.C. 326 (Palmer). The two cases which'the union relied upon to'support its argument for full retroactivity do not seem to be inconsistent with this principle. It appears that in both cases, there were circumstances giving rise to an equity preventing the employer from relying upon the usual rule. So, for example, in R~ Leisure World Nursing Homes Ltd., North Bay and Service Employe~s Union. Local 478 (1983), 12 L.A.C. (3d) 345 (Langille), full retroactivity was allowed because the delay in filing the grievance was caused by the employer. In Re Clarke Institute of Psychiatry and Ontario Nurses' Assoc. (1982), 5 L.A.C. (3d) 155 (Beck) [and 6 L.A.C. (3d) 131 (O'Byrne) (dissenting)], the filing of the grievance was delayed because of a unilateral assurance by management which made it unfair for the employer to rely upon the usual rule. As previously indicated, nothing in the evidence in the present case disclosed any basis for denying the employer the benefit of the rule .... The Employer also relied on Robbs et al. and Allen et al., 0462/86 etc. (Kennedy), which dealt with a number of grievors who claimed reclassification and asserted retroactivity entitlement to various dates. By agreement of the parties the Board' first dealt with the preliminary issue as to entitlement to retroactivity. This was done because the parties had put into effect an Office Administration Group Job Evaluation Plan that was considering the appropriate classification for the grievors which was to have an effective date of December 31, 1985. It was agreed by the parties that there would be no point in proceeding to hear the merits of the grievances unless the union could establish an entitlement to retroactive compensation to a date prior to December 31, 1985. The Board stated, at pp.14-16: ... However, on the fundamental issue, even if we were to accept the Union evidence in its entirety, we cannot 14 find on that evidence that it would be reasonable for the Grievors to conclude that they had received any representation or warranty that there would be a reclassification or that it ~ould be retroactive. In Boyle the Board stated at p. 16 the following: Thus, we do not believe it appropriate to apply the 20-day rule where informal efforts have been made to achieve a settlement of a dispute short of recourse to arbitration. Those efforts should be encouraged and, in the event that they are. not successful in achieving settlement and it becomes ~necessary to grieve, such relief as might be awarded by the Grievance Settlement Board should be retroactive to the point where steps were first taken to settle the grievance informally. The discussions relied upon by the Union in this case were in substance in the course of normal office conversation and were in no sense in the context of the settlement of any sort of dispute. No grievance of any sort was in contemplation at the time of such discussions. We would agree with the characterization, of our jurisdiction by counsel for the Employer as being one of interpreting and applying the collective agreement and that the only way we can elect not to enforce the bargain reached by the parties would be in circumstances amounting to estoppel as against the Employer. The collective agreement, as frequently interpreted by this Board, imposes mandatory time limits, and for the Union to succeed in achieving an earlier date of retroactivity this Board must be persuaded not to apply the time limits provided in the collective agreement. To do that, we must find that for some reason the Employer is estopped from relying on its strict rights as set out in the collective agreement. We do not accept the Union argument that some lesser standard is sufficient to warrant retroactivity to an earlier date, and on this point would make reference to the.prior decision of this Board in Smith 237/81 (Roberts) at p. 7. The relevant authorities have been reviewed by this Board in Lowma~ 13/82, (Saltman) wherein, after granting retroactivity beyond the normal 20-day period, the Board commented as follows: This is not'to suggest that an.employee who complains to a supervisor and even receives a sympathetic response can ignore the time limits for filing a grievance under the collective agreement. The case at hand is an unusual one in which management became actively involved in the Grievor's claim and, by their efforts, kept the claim alive over a long period of time. It is only in these unique circumstances that the Board has recognized an exception to the usual arbitral rule limiting the period of retroactive payment of compensation to the time for filing a grievance under the collective agreement. It is clear from the evidence before us that Management were in no sense actively involved in the Grievors' claim, whatever were the perceptions of the Grievors. It is also clear that whatever were the representations purportedly relied upon by the Grievors, the last of these took place in the summer of 1984, and no effort was made by any Grievor subsequent to that time to make further enquiries of Management or to determine the progress of the matter. If principles of equity are to become determinative, then it would appear that the doctrine of Laches would be an appropriate answer to the Grievors' claims to retroactivity. This is reall~ a case wherein there has been no active pursuit by either side but rather a simple acquiescence in the status quo. In the result, therefore, we would conclude that there is no basis to depart from the usual position of this Board with respect to the appropriate period of retroactivity. The 20-day rule should be applied, and there is, therefore, no entitlement to retroactivity that would give to the Grievors any claim during the period prior to the effective date of the Office Administration Group Job Evaluation Plan. Counsel for the Employer argued that there was no representation in the cases before us which would permit us to find that it would be reasonable for the Grievors to have concluded that they had received a representation or warranty that relief would be retroactive. The matter before us proceeded without any evidence being called, and there being no agreement relating to any representation or warranty with respect to retroactivity, we can find none. 16 Counsel for the'~Emp1Oyer also referred to Burrow~, 379/88 (Mitchnick), which was referred to by the Board in Ababio at pp.9-10: The Board notes that our conclusion in respect of this aspect of the dispute is similar to that reached in Burrows, 0379/88 (Mitchnick). In.that case, the grievance concerned the application of travel time to Schedule 6 employees. On May 1, 1984, a decision was rendered in respect of another employee in a different Ministry. This was referred to as the Fawcett award. The grievor became aware of that decision in July 1984 and subsequently discussed it's applicability to his situation with the Ministry's Chief Classification and Staff Relations Officer. He was advised that the Fawcett award was "being appealed" and therefore elected to wait a period of time before determining how best to proceed. A grievance was subsequently filed in April, 1988. The Board in Burrows reviewed the jurisprudence on the twenty (20) day rule, including the decision in Baldwin ~n~ Lyng cited in this case. After SO doing, it awarded retroactivity back to the date of the Fawcett award notwithstanding the fact that the grievor first raised the issue with the Employer some two (2) months later. In' Burrows,~ the grievor, an employee with'the Ministry of Labour, claimed under article 23 of the collective agreement for travel time incurred outside of working hours. The grievor was an Inspector with the Ministry of Labour from 1980 and was classified.throughout the relevant period as a Schedule 6 District Inspector for the Mining Health and Safety Branch. It was conceded he~ was entitled to be paid'travel time, as was the Schedule 6 grievor in Fawcett. The only issue before the Board was the period of retroactivity. In July of 1984, the Fawcett decision, issued May 1, 1984, upholding the claim for travel time, came to the attention of the grievor and, .noting that Mr. Fawcett was also a Schedule 6 employee involved in extensive 17 travel (with the Ministry of Transportation and Communications), he telephoned Mr. Viril Peperkorn, his Ministry's Chief Classification and Staff Relations Officer, to inquire "when we were going to get some money." The grievor was informed that the decision was being "appealed," and his response was: "Okay, we'll wait and see what happens." The grievor testified that he agreed that there was little purpose in pressing the matter any further at that point because if the "appeal" were successful, that would end the matter, and if it were not the Ministry could be expected "to do the right thing." It was the grievor's evidence that he'd had previous dealings with Mr. Peperkorn and that the latter preferred to see matters dealt with without the need for formal grievances, and that "Pep always came through for you." For these reasons the grievor did not formally grieve following his July 1984 conversation with Mr. Peperkorn but was content to allow the "appeal" process to run its course. A number of years went by without the grievor hearing anything, but he did not regard this as unusual given his experience with "appeals" to the courts in the past. In late March of 1988, he overheard a discussion of a grievance that had been filed for "on-call" pay and this prompted him to put in a call to Mr. Peperkorn to see how the Fawcett matter was proceeding. Mr. Peperkorn told him that the Fawcett "appeal" had been withdrawn and further informed him that he was entitled to payment for travel time. The grievor then asked Mr. Peperkorn 18 when he would be getting the money, but Mr. Peperkorn indicated that he "[had] nothing to do with that." The grievor then concluded that he had best file a grievance, which he did on April 13, 1988, claiming travel time to 11:00 p.~m. when on the road and required to stay over in the hotel for the period extending back to the date of the Fawcett decision: May 1, 1984. Mr. Peperkorn felt that the Fawcett decision did not have application to the Ministry of Labour because it involved the Ministry of Transportation and Communication. The Ministry of Labour had always had a practice of discretionary time off for extra work-time~ including, he assumed, travel time. When the Ministry of Labour was ~aced with a grievance from the London office in the spring of 1988 involving travel time, it sought the advice of the Staff RelatioNs Branch and was informed that the Fawcett award was to be followed. Accordingly, the Ministry made a decision to honour all such travel time claims, back to April 1, 1988. This was made known to the grievor at least by the second step meeting of his grievance, and at that meeting it was further indicated that the Ministry was prepared to pay the grievor back twenty days from the time he' first raised the matter'with his own supervisor. In the ~urrows case, the Ministry argued that the grievor's claim under the Fawcett award should be limited to the twenty t9 days preceding the date of his grievance, and that, in light of the practice of the discretionary time off that had otherwise been available to him, he was estopped from going back in time to claim overtime on a cash-payment basis. The Board, in Burrows, referred to Baldwin and Lyng, 539/84 where the Board reviewed its jurisprudence on the question of retroactivity. Commencing at page 8 of the decision, the Board explained its position as follows: The material provisions of the collective agreement affecting the question of retroactivity are: 27.1 It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable. 27.2.1 An employee who believes he has a complaint or a difference shall first discuss the complaint or difference with his supervisor within twenty (20) days of first becoming aware of the complaint or difference. The Board's jurisprudence has interpreted from those provisions that the normal cut-off for ~he retroactive adjustment of a grievance is 20 days prior to the date that the grievance was actually filed. The decision goes on to note, however, on the same page: But the cases have, on the other hand, made it equally clear that that is not a hard-and-fast rule. As expressed in Re Smith, for example, case #238/81, issued March 5, 1985, at pages 6 and 7: 20 The usual rule is that, barring the existence 9f circumstances whihh would make it inequitable for the Ministry to. rely upon it, retroactivity will be limited to the period of time within which it was permissable for the grievor to file his grievance. In the case of this Collective Agreement, that period is 20 days prior to the day upon which the grievance actually was filed. See Re OPSEU and Ministry 'of the Attorney-General, G.S.B. 71/76, in which the Board stated: "while it is, in our view, clear that the employer failed to comply with the provisions of Article 10.3 throughout the period from January 28, 1976, we do not believe that these employees who initiated their complaint only on May 25, 1976, may properly claim relief throughout that period. To the contrary, and to hold otherwise would bc to improperly penalize'the employer for the breach of an agreement of which it was nQt aware. Thus, where as here, the~ breach of the agreement is in the nature of a continuing'one, boards of arbitration have consistently'limited an employee's right to claim damages for the breach of the agreement to the period of time within which it was permissable to file his grievance. Re: Union Gas Co. of Canada Ltd. (1972), 21 L.A.C. (2d) 45 (Weatherill). Re: Automatic Screw Machine Products Ltd. (1972), 23 L.A.C. 396 (Johnston). Re: National Auto Radiative Manufacturing Co. (1967), 18 L.A.C. 326 (Palmer)". (emphasis added in the Burrows case) The Board in Baldwin and Lynq then elaborated on the "exceptions" to that rule, commencing at page 11 of its award and quoted the following excerpt from the case of Re Hooper (GSB #47/77): With respect, this case does not limit recovery in every situation to the date of filing a formal grievance. Here the grievor had made his "complaint" on or before September 1, 1985 in the form of a request for reclassification. His request apparently met with at least tacit approval from everyone concerned except the classification officers of the Civil Service Commission, who alone were empowered to make the final decision. In such circumstances, it would have been premature for the grievor to file a formal grievance until it appeared that his request would be refused. Nevertheless, the evidence clearly established that the job content on which the present grievance is based existed before September 1, 1975 and that responsible officials of the EmPloyer had received and were considering the grievor's request by that date. As none of the subsequent delay in decision-making can be laid to the grievor, he is entitled to be considered to be improperly classified as of September 1, 1975 and we so find. At page 14, the Board in Baldwin and Lyng sets out the competing policy considerations on .the question of retroactivity as follows: There was before the Grievance Settlement Board on this same point and at the same time as Re: Lowman, the case of Re: Boyle, being #675/85, and which issued two days later than Re Lowman. The Board in Re Boyle aptly set out the competing policy considerations which surround this issue of retroactivity, and more specifically, of the kinds of circumstances which have led the Board to carve out exceptions to the "20-day" rule. At page 15, the Board wrote, in addressing the issue of a retroactive date: A more appropriate date would be July 24, 1984 when the Ministry did expect that all the clerks be "fully knowledgeable" on all of the four main functions. However, to choose that date would be to ignore that line of cases which have limited compensation to a period of 20 days prior to the date of the grievance. Those cases reflect the view that where there is a continuing course of conduct which can be the subject of a grievance at any time, i.e. a continuing grievance, "grievors" who postpone their decision to grieve and seek relief should not be able to claim compensation retroactively to a point in time when they could have but did not grieve. There are sound policy reasons which support that approach. If there are disputes or differences between the parties they 22 ~'~'h'ould be aired and not permitted to'simmer. Yet there is a.competing policy which comes into play in this case. That is the policy in favour of settling disputes short of invoking the grievance procedure and having recourse to the Grievance Settlement Board. A rigid application of the "20 day rule" would discourage employees from attempting through less formal means to settle their dispute.' (emphasis added in the Burrows case) In the light of the' above, the Board in Burrows concluded: Those comments, it appears to us, point. convincingly to the position adopted by the Union in the present case. Unlike, one assumes, the bulk of Schedule 6 employees potentially affected by the Fawcett decision, the grievor made the connection with his own case at once and immediately took action to register his'claim with Mr. Peperkorn, an appropriately-placed individual intended by the Ministry to handle such matters,.and with whom the grievor had dealt in the past. But Mr. Peperkorn quite reasonably suggested, in effect, that the grievor ought to wait and see what happened with the appeal, and the grievor just as reasonably agreed. The grievor did then let the matter sit for a considerable period of time; he had,. however, placed the matter in the hands of Staff Relations management, expecting them to monitor the situation and, if and when the time came, "do the right thing". And it is not difficult to accept the grievor's evidence that, based on past experience, the matter of appeals to the Courts can involve a matter of years. There is in fact no evidence before us as to when that "appeal" was~in fact withdrawn - for all we know, it could have been some time closer to 1988 than 1984 - but in any event, what prejudice can the Ministry be said to have. suffered as a result of the grievor's patience and trust? The Ministry ~does not, before us, raise any defence to the Fawcett award, ultimately accepted by it, and the logical extension of that is, that if the grievor had re-opened the discussion earlier, the Ministry would simply have been told by the Civil Service Commission, assuming the appeal had by then been abandoned, to apply the decision in Fawcett to all employees in the grievor's position that much sooner. As it is, the grievor is the only individual before us who explicitly registered his claim at the time Fawcett first appeared, and he is the only one thus in a position to ask to have his claim back-dated to that point, now that the status of the Fawcett case itself has been confirmed. We can, in accordance with the jurisprudence of the Board above, think of no reason in policy or equity to now deprive the grievor of the full benefit of the claim he so clearly drew to management's attention in July of 1984. Rather, we find, in accordance with the language of the collective agreement, that the grievor reasonably chose to wait, as Mr. Peperkorn suggested, until the appeal on Fawcett had been disposed of, and that he in fa6t could be said to have had no "complaint" or "difference" which required processing.until Mr. Peperkorn advised the grievor that the appeal had been withdrawn, but that the grievor still might not be granted any money. (Emphasis in Burrows) The Board in Ababio saw a connection between its conclusion in respect of the subject of' retroactivity and that reached by the board in Burrows. The matter that it specifically referred to in Burrows was the fact that the grievor in that case had been "advised that the Fawcett award was 'being appealed' and therefore elected to wait a period of time before determining how to best proceed." An examination of the Burrows case makes it abundantly clear that that is how the Board did view the matter. That is "the grievor reasonably chose to wait, as Mr. Peperkorn suggested, until the appeal on Fawcett had been disposed of, and that he in fact could be said to have had no 'complaint' or 'difference' which required processing until Mr. Peperkorn advised the grievor that the appeal had been withdrawn, but that the grievor still might~ not be granted any money." (Emphasis in the Burrows case) 24 Because the Board in Ababio"was so insistent in restricting its finding on the subject of retroactivity: "the board Wished to make clear, however, that such extension is premised entirely on the factual situation before us," it is necessary to review the agreed to facts.of the case before us with the facts as found in Ababio. The reason for not adhering to the 20 day rule in Ababio was based on certain features that the Board considered material: 1. "... these grievors £iled their grievances as soon as Hayford came to their attention." We do not believe that counsel for the Employer took issue with the statement by counsel for the Union that the'Grievors f~led their grievances as soon as ~ayford came to their attention. 2. "This step was taken shortly after the release of the [Hayford] award and without any delay on their part." · The grievors in Ababio filed their grievances "im early October 1988" (p~3). Unlike the grievances in Ababio,__ which were filed within three months of the release of the Hayford award, the grievances in the case before us. were filed some six to eight months after the release of that award. 3. "The content of the decision clearly demonstrated that 25 their reliance on the opinion of management had been misplaced." There appears to be a link between this item and the reliance of the grievor in the Fawcett case. At least our reading of the reference to the Burrows case in Ababio appears to support this conclusion. In the case before us, there is no evidednce of any reliance on the part of the Grievors on the opinion of managemeDt which reliance "had been misplaced." This is a very significant difference, and cannot be overlooked as it was fundamental to the decision in AbabbLo. As the Board in Ababio was very explicit in limiting its conclusion to the "factual situation before [them]," we would be giving that decision more weight than it is entitled to, given the difference in certain fundamental facts in the cases before US. Counsel for the Union argued that there was a responsibility on the Employer to make the Hayford award known to all Ministries immediately upon its being released, and that the Employer would suffer no detriment in having to pay the amounts required under the latter award from the date of its release.. The situation might have been different if there was evidence that the delay was a result of a desire to obtain an unwarranted financial advantage by delaying the time fr'om which the payments were to be 26 made as required by Hayfo~d. .'There was no evidence in the Ababio case, nor in the case before.us, of duplicitous conduct on the part of the Employer that would alter the situation. In the absence of some representation or warranty as was found in the Burrows case, or in the absence of what appears to have been treated as a species of representation or warranty in the Ababio' case, there is no basis in the case before'us to extend the jurisprudence of the Board Pronounced in the cases above referred to. This is a case where there was a recurring breach of the collective agreement where the Grievors could have, at any time, filed their grievances. There was no evidence that their failure to do so at an early time was as a result of some action on the part of the Employer that would make it inequitable for the Employer to insist that'the usual rule with respect to retroactivity be followed. The argument that the Employer would suffer no detriment if the relief was made retroactive to the date ~ayfo.rd was released could be made in any case where a continuing violation of the collective agreement was established which was not grieved at the time of the first violation. In such a case,'as has been shown above, the awarding of retractivity would depend on the existance of factors which are not present in the cases before us. In the result, the relief to the Grievors can only be made retroactive from the normal 20 days prior to the filing of the respective grievances. The Board will remain seized in the event' 27 r that there are difficulties in implementing the award. Dated at Toronto, Ontario this 26~h day of September, 1991. H. Roberts - Member