FPSLREB Decisions

Individual grievance referred to adjudication

1 This is a decision about whether I have jurisdiction to consider the grievance of Shauna K. Baker (“the grievor”). I am not deciding the merits of the grievance.

2 The events giving rise to this grievance, according to the grievor, arose in October 2003 and continued at various times since that date as a result of the employer’s alleged failure to make pay increments as required under the collective agreement. The grievance was filed in October 2006, and her evidence is that in May 2006 she learned the facts on which this grievance is based.

3 The collective agreement in this case (“the collective agreement”) was signed by the Treasury Board (“the employer”) and the Union of Canadian Correctional Officers – Syndicat des agents correctionnels du Canada – CSN (“the bargaining agent”) for the Correctional Services Group bargaining unit (“the bargaining unit”).

Summary of the arguments

4 The employer raises a preliminary objection to my jurisdiction to decide this grievance. They accept that there has been a “technical” breach of the collective agreement for a period before the October 2006 grievance. They also accept that the pay-increment period is every 12 months. However, the employer submits that the grievance is a continuing one and, therefore, the grievor is not entitled to a remedy preceding the twenty-five days prior to the presentation of her grievance at the first level of the individual grievance process. Since there was no breach of the collective agreement during that period, the grievance should be dismissed. Further, since it is a continuing grievance, there cannot be any waiver by the employer as the bargaining agent has alleged. The employer requests that the grievance be dismissed on a preliminary basis.

5 The bargaining agent, representing the grievor, opposes the employer’s preliminary objection. They submit that this is not a continuing grievance and, further, a waiver applies against the employer because it was not timely in its objection to the grievance. The result, according to the bargaining agent, is that the remedy available (if the grievance is successful on the merits) extends back to October 2002. The bargaining agent does not agree that the remedy is restricted to twenty-five days prior to the presentation of her grievance at the first level of the individual grievance process. The bargaining agent urges me to dismiss the employer’s preliminary objection so that the grievance can be decided on its merits.

Summary of the evidence

6 The employer operates correctional services across Canada, including the Pacific Region. The grievor has been employed at the Correctional Service of Canada as a correctional officer in the Pacific Region since October 21, 2002, in Abbotsford, British Columbia.

7 When the grievor was hired she was told that she would be employed on a full-time basis. However, after graduation from the training college she and other graduates were told that no full-time employment was available because of a lack of funding. The employer subsequently offered part-time employment of sixteen hours per week, which the grievor accepted.

8 In August 2005, an adjudicator with the Public Service Labour Relations Board issued a decision that the payment of pay increments for part-time employees in the Correctional Service of Canada was to occur after 12 months: Broekaert et al. v. Treasury Board (Correctional Service of Canada), 2005 PSLRB 90. According to an “Information Bulletin” of the bargaining agent, about 1447 part-time employees were affected by that decision, with the “vast majority” affected in a positive way by a monetary payment to them.

9 The version of that bulletin that was entered in evidence is undated. In her evidence, the grievor testified that at first she thought the bulletin came out in May 2006. However, when it was pointed out to her in cross-examination that the decision in Broekaert et al. came out in August 2005, she stated that she was “not sure.” Later in her evidence the grievor stated that she knew about the “Broekaert”grievances when the bulletin came out and she again testified that she thought it came out in May 2006. She also agreed that she waited to file her grievance until after seeing the bulletin.

10 The bargaining agent issued a second bulletin, announcing a memorandum of understanding with regard to the grievances affected by Broekaert et al. This second document is dated August 20, 2006, and it describes lump sum payments of $7500 to more than 1000 casual employees. It also advised employees in the bargaining unit who met the conditions of the memorandum of understanding, and who had not been advised that they were on the list of eligible employees, that they should contact the employer.

11 On August 29, 2006, the grievor sent an email to the employer’s Labour Relations Directorate, using an address provided by the bargaining agent. The grievor provided information from her pay cards and asked: “Could you please add me to the list of people who will be getting a settlement on their increments as I was a casual?” In a reply dated August 30, 2006, a Labour Relations Directorate representative stated that the settlement applied to casual employees and that the grievor was not eligible because she was a part-time term employee. During the hearing of this grievance, the employer advised that they accept that the memorandum of understanding arising from the Broekaert et al. decision applies to casual as well as part-time employees. That is, it is agreed that Broekaert et al. applies to the grievor.

12 There is no dispute that the grievor filed her grievance on October 24, 2006, following the August 2006 email exchange with the employer in the previous paragraph and an email she sent to the bargaining agent on September 1, 2006.

13 In her evidence, the grievor provided information about her pay increments since her date of hire in October 2002. According to her calculations, she should receive an additional $2500.38 in total as a result of the memorandum of understanding from the Broekaert et al. decision. She relied on increments for five time periods: October 21, 2003, to January 6, 2004; October 21, 2004, to January 6, 2005; October 21, 2005, to January 6, 2006; October 21, 2006, to January 6, 2007; and October 21, 2007, to January 6, 2008. Again, I am deciding a timeliness issue and not whether the grievor is entitled to payment of those increments.

Reasons

14 A useful starting point is to consider whether the grievance in this case is a continuing one and if so, what the significance of that would be. The employer submits that the grievance before me is a continuing one and the bargaining agent disagrees.

15 It is generally recognized in the arbitral jurisprudence that continuing grievances are ones that allege repetitive breaches of a collective agreement rather than simply a single or isolated breach. The test applied by arbitrators is whether there has been a recurring breach of duty and not merely recurring damages. The significance of characterizing a grievance as continuing relates to the remedy available. Failure to file a continuing grievance within a required period of time (such as one set out in a collective agreement) will not render it inarbitrable. However, the relief available under a continuing grievance may be limited to the time limit specified under the collective agreement (see Brown and Beatty, Canadian Labour Arbitration, 4th ed. (February 2008), para 2:3128).

16 Clause 20.10 of the collective agreement in this case sets out the initial time limit for filing a grievance as follows:

20.10   An employee may present a grievance to the First (1^st) Level of the procedure in the manner prescribed in clause 20.05 not later than the twenty-fifth (25^th) day after the date on which he or she is notified orally or in writing or on which he or she first becomes aware of the action or circumstances giving rise to the grievance.

17 The jurisprudence on clause 20.10 has generally developed along the lines described by Brown and Beatty. In Canada (National Film Board) v. Coallier, [1983] F.C.J. No. 813 (C.A.) (QL), the Federal Court of Appeal set aside the decision of an adjudicator on the following basis (at the time of Coallier, the time limit in the collective agreement was 20 days):

…

In our opinion this twenty-day period began to run as soon as respondent learned of the facts on which his grievance was based: contrary to what the adjudicator held and counsel for the respondent argued, it did not begin to run on the day on which respondent was told that the employer’s actions were illegal.

…

On this reasoning, the Court held that the employee in Coallier was entitled to a remedy only during the twenty days preceding the grievance (now twenty-five days).

18 Although the judgement in Coallier does not specifically describe the grievance in that case as a continuing one, I note that subsequent decisions have applied it to continuing grievances (for example, Black v. Treasury Board (Department of National Defence), 2007 PSLRB 72). I also note that the decision in Macri v. Treasury Board (Indian and Northern Affairs Canada), PSSRB File No. 166-02-15319 (19871016) (upheld by Canada (Treasury Board) v. Macri,[1988] F.C.J. No. 581 (C.A.) (QL)), declined to follow Coallier. This was on the basis that a strict limitation of twenty days for a remedy would be an incentive for an employer to delay the grievance procedure. I acknowledge that policy concern, but there is no evidence of that situation in this case.

19 In summary, where there is a continuing grievance under the collective agreement there may not be a timeliness issue as a result of the late filing of the grievance. However, any remedy under that grievance is limited to the twenty-five-day period prior to the presentation of the grievance at the first level of the individual grievance process. I agree with the bargaining agent that this admittedly technical approach should not be applied in extreme ways. For example, situations involving waiver, estoppel and other equitable considerations may require deviation from this approach (see Public Service Alliance of Canada v. Treasury Board, PSSRB File No. 161-02-703 (19931220), and St. Raphael’s Nursing Home Ltd. v. London and District Service Workers’ Union, Local 220 (1985), 18 L.A.C. (3d) 430).

20 Returning to the facts of this case, the grievance alleges breaches of the collective agreement on five occasions between 2003 and 2008. The situation is not one of recurring damages and, therefore, the grievance in this case is a continuing one. The bargaining agent alleges waiver as an issue as a result, in their view, of delay by the employer in objecting to the grievance. However, I do not agree that the evidence supports that conclusion, and I cannot find other reasons to deviate from the general approach to continuing grievances described above. I note that the bargaining agent did not characterize their objection in terms of section 95 of the Public Service Labour Relations Board Regulations (SOR/2005-79) and the decision in McWilliams et al. v. Treasury Board (Correctional Service of Canada), 2007 PSLRB 58.

21 The grievance was filed on October 24, 2006. The grievor’s evidence was that she did not become aware of the employer’s failure to increase her increments in pay until she saw the first “Information Bulletin” of the bargaining agent in May 2006. Knowledge of the action or circumstances giving rise to the grievance is part of the test in clause 20.10 of the collective agreement for when the twenty-five-day period commences. It is also identified in Coallier.

22 The grievor did not provide a specific date in May 2006. Giving her the benefit of the doubt, and assuming it was early in May 2006, the time period in which the grievor was entitled to a remedy began in the middle of April 2006 or perhaps earlier in that month. As demonstrated by the grievor’s pay records, during that time there is no evidence that the employer failed to make a pay increment, and therefore, there is no evidence of a breach of the collective agreement during the April to May 2006 period.

23 In view of the jurisprudence on continuing grievances, I am not sure that the employer’s application is accurately characterized as one based on jurisdiction. As stated above, a continuing grievance is adjudicable even when it is filed late, but the remedy is limited to the time period in the collective agreement for filing grievances (twenty-five days in this case). In any event, the result amounts to the same: the grievor does not have a remedy available to her during the applicable twenty-five-day period. I make that declaration and dismiss the grievance for the pay increments for the periods October 21, 2003, to January 6, 2004; October 21, 2004, to January 6, 2005; and October 21, 2005, to January 6, 2006.

24 There are also subsequent pay increments for the periods October 21, 2006, to January 6, 2007, and October 21, 2007, to January 6, 2008.  The evidence is not clear if they have been paid or if they are also issues in this grievance. But assuming they are issues and they have not been paid, and assuming payment of these increments would have been made during or after the twenty-five-day period discussed above, any issue arising from these increments will be considered at a new hearing about their merits.

25 For all of the above reasons, I make the following order:

Order

26 The employer’s preliminary objection is allowed, in part.

27 I declare that the grievor does not have a remedy available to her during the twenty-five-day period preceding the filing of her grievance at the first level of the individual grievance process and I dismiss the grievance for the pay increments for the periods October 21, 2003, to January 6, 2004; October 21, 2004, to January 6, 2005; and October 21, 2005, to January 6, 2006.

28 Any issue arising from the subsequent pay increments for the periods October 21, 2006, to January 6, 2007, and October 21, 2007, to January 6, 2008, as the case may be, are properly before me. The Public Service Labour Relations Board’s Registry will contact the parties to arrange for a continuation of the hearing.

May 16, 2008.

John Steeves,
adjudicator