FPSLREB Decisions

I. Individual grievance referred to adjudication

1  Harry Kullar (“the grievor”) was at the time of the hearing a parole officer employed by the Correctional Service of Canada (“the employer”). He was hired in October 2002 as a corrections officer and, following a training course, was assigned to Matsqui Institution in British Columbia. He filed a grievance on August 26, 2006, alleging that the employer had failed to calculate his initial increment appropriately.

2 The employer objected to the adjudication of the grievance on the grounds that the grievance had been filed outside the 25-day period specified in the collective agreement between the Treasury Board and the Union of Canadian Correctional Officers – Syndicat des agents correctionnels du Canada – CSN, Group: Correctional Services, expiring on May 31, 2010. The employer characterized the grievance as a continuing grievance, the nature of which was apparent for some time, and argued that the decision of the Federal Court of Appeal in Canada (National Film Board) v. Coallier, [1983] F.C.J. No. 813 (C.A.) (QL) applies in these circumstances, and operates to bar an adjudicator from determining the issues raised in the grievance.

3 At the first and second levels of the grievance process (Exhibits 3 and 4), the employer raised an objection to the timeliness of the filing of the grievance, citing clause 20.10 of the collective agreement, which gives an employee a 25-day period for filing a grievance “[a]fter 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.” After the grievance was referred to adjudication, counsel for the employer made a slightly different argument in bringing to the attention of the Public Service Labour Relations Board (“the Board”) the employer’s objection to my jurisdiction; in correspondence with the Board, he relied on Coallier for the proposition that any remedy available to the grievor would be limited to the 25-day period prior to the filing of the grievance. In that correspondence and in his argument before me, counsel for the employer did not argue that the grievance itself was untimely (the argument the employer appears to have made earlier in the grievance process), but that the remedy was restricted to the 25- day period.

II. Summary of the evidence

4 The bargaining agent , the Union of Canadian Correctional Officers – Syndicat des agents correctionnels du Canada – CSN, called as witnesses the grievor and Gord Robertson, its regional president. The employer called no witnesses.

5 The grievor was first hired on October 28, 2002, and testified that he entered the training program for corrections officers on the understanding that he would be working full-time on the completion of the program. In fact, when the program ended, he was offered work for two days per week and was classified as a part-time employee until he was given a full-time position in May 2003. He received his first pay increment in January 2004, and received an annual increment each year after that.

6 Mr. Robertson described the course of a disagreement between the employer and the bargaining agent over the employer’s policy concerning the payment of increments to part-time employees. Under article 49 of the collective agreement employees are entitled to a pay increment each year. The employer had formulated a pay policy that contemplated the payment of an increment to a part-time employee only when they had worked the same number of hours a full-time employee would work in a year. In 2001, a number of grievances were filed challenging this policy based on the argument that there was nothing in the collective agreement that permitted the employer to differentiate between part-time and full-time employees for the purposes of making annual increments. In Broekaert et al. v. Treasury Board (Correctional Service of Canada), 2005 PSLRB 90, the adjudicator upheld this argument, finding that the employer was obligated to pay part-time employees an increment based on the passage of a year, not on the number of hours worked.

7 Mr. Robertson testified that, following the Broekaert decision, which was issued on August 4, 2005, the bargaining agent made efforts to identify employees across the country potentially affected by the outcome. In his own case, he was involved in efforts at the regional level to identify employees who would be affected. He said that it was concerned to ensure that all categories of people were included who might be affected, including job-share employees and people on the training program attended by the grievor. In December 2005, Sherry Enns, an employee who had a bargaining agent position, emailed Rick Oakes, Compensation Manager in the Pacific Region, stating that she had heard of some settlements in the region and elsewhere and asking whether her own compensation could be considered. Mr. Oakes responded as follows: (Exhibit 9) “I have asked all of the advisors to review increments for any employees who are or were part-time, based on recent decisions. If your increment needs to be adjusted, it will be done shortly.” Ms. Enns eventually filed a grievance, which settled before adjudication. It is important to note that Ms. Enns was pursuing this matter on her own behalf, and not as a representative of other employees.

8 Mr. Robertson produced several flyers and handouts circulated by the bargaining agent and dated May 2006 (Exhibit 6), August 2006 (Exhibit 8) and January 2007 (Exhibit 7) that brought to the attention of employees its efforts to reach a settlement of all the claims related to the increments.

9 Mr. Robertson also produced a copy of a memorandum of understanding (MOU) dated August 9, 2006 (Exhibit 6) that constituted a settlement of a number of grievances on this issue. The MOU was concluded and signed at the national level; in one of the bargaining unit’s publications in May 2006 (Exhibit 7), the settlement was described as the culmination of a lengthy campaign by the bargaining agent, beginning in 2001, to rectify the issue adjudicated in Broekaert. The MOU, which states that it “will apply to all affected CX employees of CSC who were on strength on August 4, 2005,” provided that the employer would forward to the bargaining agent a list of all employees who “were hired as casual correctional officers with an assigned work week of part-time hours since May 1, 1994.” The MOU stated that employees not included on the list had until November 1, 2006, to object to the omission of their names and that omission would be “corrected or explained” within 30 days of the objection. The MOU further provided that lump sum payments would be made to employees covered under the settlement. No examples were cited to me of circumstances where an omission was “explained.” Mr. Robertson’s testimony was that the bargaining agent understood that the MOU was intended to ensure that all employees in circumstances like those in Broekaert would be compensated as outlined in the agreement.

10 The substance of the MOU was outlined in one of the communications sent to employees (Exhibit 8) dated August 20, 2006. The grievor said he remembered seeing that document. Mr. Robertson also sent an email to employees thought to be affected outlining the terms of the settlement (Exhibit 5). In keeping with the terms of the MOU, the grievor emailed his objection to the omission of his name from the list on August 21, 2006 (Exhibit 15); he resent it on September 23, 2006 (Exhibit 14). In the meantime, he had filed his grievance on August 26, 2006.

11 In their discussions with the employer, representatives of the bargaining agent attempted to build on indications that the employer was willing to take a fairly proactive approach to identifying employees who might be entitled to additional increments, although they also circulated information encouraging individual employees to come forward. As late as the end of 2009, discussions took place at the regional level, between representatives of the employer and the bargaining agent, about how the national settlement laid out in the MOU should be implemented. The bargaining agent proposed that the employer identify all employees whose circumstances seemed to fall within the principles in Broekaert, and that the benefits of the MOU be conferred on all of these employees. Mr. Robertson referred to an undated memo (Exhibit 11) that an employer representative shared with the bargaining agent during the discussions. In the memo, managers at the regional level indicated that they had put aside an amount of money to adjust the pay of the employees in the Pacific Region who had been identified and had asked National Headquarters for authorization to proceed with the adjustments. Mr. Robertson recalled that Judy Croft, Assistant Deputy Commissioner Operations, Pacific Region, had written the memo and that he had seen it in November or December 2009. He remembered the amount of money set aside by the employer as $40 000. He pointed to the following sentence in the memo: “Given that some were paid and others weren’t, we believe it is only fair to ensure that our staff are treated equally in this matter.”

12 Mr. Robertson stated that the discussions focused on ensuring that all of the affected employees would be reached. There was no reference to time limits on grievances or other barriers. He said that the response that Ms. Croft received from National Headquarters was that the employer was not willing to follow the approach she had suggested and that it would respond to individual grievances or objections as they surfaced. In the context of these discussions, Ms. Croft provided Mr. Robertson with a table (Exhibit 10) showing the names of employees with proposed resolutions of their files. Mr. Kullar’s name was on that list and the table indicated that his grievance had by that time been referred to adjudication. The proposed resolution was that his case be dealt with according to the decision in Baker v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 34.

13 In the Baker decision, which concerned the case of another employee claiming the benefit of the Broekaert decision, the adjudicator found that the grievance was a continuing one, and upheld in part the employer’s objection to any remedy reaching back longer than 25 days before the presentation of the grievance to the first level of the grievance procedure.

III. Summary of the arguments

A. For the employer

14 The employer’s objection was based on clause 20.10 of the collective agreement, which reads as follows:

20.10 An employee may present a grievance to the First (1st) Level of the procedure in the manner prescribed in clause 20.05 not later than the twenty-fifth (25th) 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.

15 Counsel for the employer argued that the authoritative interpretation of that provision is found as follows in Coallier:

…

In our opinion, this twenty-day [now twenty-five] 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.

…

16 Counsel for the employer pointed out that the adjudicator in Baker had applied the principle in Coallier to a grievance arising in circumstances very similar to those in this case. The adjudicator in Baker found that the grievance was a continuing one, and counsel for the employer argued that a similar finding should be made in this case. Counsel for the employer did not argue that the grievor knew of the grounds for the grievance in 2003, when he did not receive an increment on the first anniversary of his employment. He did argue, however, that the grievor should be taken to have known of the circumstances giving rise to the grievance when the Broekaert decision was issued in August 2005. Even if some time were allowed to account for the publication of the decision, the grievance was filed well after the decision had become common knowledge.

17 If the grievance is not characterized as a continuing grievance, the time question becomes even more acute, according to counsel for the employer. The grievance filed in August 2006 would have come several years after the alleged breach of the agreement by the employer in 2003, and long after the time limits set in the collective agreement for the filing of a grievance.

18 Counsel for the employer also responded to the suggestion that the employer had waived any objection to the timeliness of the grievance by not complying with section 95 of the Public Service Labour Relations Board Regulations, SOR/2005-79:

95. (1) A party may, no later than 30 days after being provided with a copy of the notice of reference to adjudication,

(a) raise an objection on the grounds that the time limit prescribed in this Part or provided for in a collective agreement for the presentation of a grievance at a level of the grievance process has not been met: or

(b) raise an objection on the grounds that the time limit prescribed in this Part or provided for in a collective agreement for the reference to adjudication has not been met.

(2) The objection referred to in paragraph 1(a) may be raised only if the grievance was rejected at the level at which the time limit was not met and at all subsequent levels of the grievance process for that reason.

…

19 Counsel for the employer pointed out that the employer raised the issue of timeliness several times at successive levels of the grievance process, most recently in his own correspondence to the Board after the referral to adjudication. Any verbal discussions with the bargaining agent on any other basis rested on a desire to explore the possibility of settling the grievance, and may not be taken as a waiver of the right to raise the substantive issue of the adjudicator’s jurisdiction. In this part of his argument, counsel for the employer seemed to be using the term “timeliness” to refer interchangeably both to the question of whether the grievance had been filed soon enough after the grievor became aware of the relevant circumstances and to the question of whether the remedy should be limited to a 25-day period before the filing of the grievance. I have pointed out earlier that the employer raised an issue of timeliness in the former sense at the first and second levels of the grievance process, while counsel couched his objection to adjudication of the issue in terms of the remedy; this form of the objection was advanced more than two years after the stage one and two responses of the employer, and after the referral of the grievance to adjudication. It seems to me clear that the employer’s argument at this stage must be taken as limited to an argument that the remedy is limited.

B. For the grievor

20 The bargaining agent representative argued that the grievor’s circumstances were clearly caught by the outcome of the Broekaert decision and that his pay should be adjusted to reflect the fact that the employer’s failure to grant him an increment a year after he commenced work was inconsistent with the collective agreement.

21 The bargaining agent representative further argued that the employer had waived the right to object to the timeliness of the grievance by not raising consistent arguments about it over the course of the grievance process. In her view, the employer had raised the issue of timeliness at some times as though the grievance were a continuing grievance and at other times not. The vacillations of the employer did not comply with section 95 of the Regulations, and the employer may not therefore raise an objection to my jurisdiction at adjudication. She referred me to Lafrance v. Treasury Board (Statistics Canada), 2006 PSLRB 56, and McWilliams et al. v. Treasury Board (Correctional Service of Canada), 2007 PSLRB 58, as examples of adjudicators applying section 95.

IV. Reasons

22 Although the grievor’s claim is a relatively simple one – he wishes to have his pay adjusted to reflect the fact that the initial increment made to his wages was a number of months late because of the employer’s misapplication of the provision of the collective agreement – it is complicated by the fact that his claim is part of a considerably larger picture involving many employees and protracted efforts by the employer and the bargaining agent to reach a resolution. The informational bulletin from the bargaining agent dated May 2006 (Exhibit 7) indicated that the parties had agreed in April of that year to review the files of 1447 affected employees. That agreement stemmed from the decision in Broekaert concerning the original 15 grievances. That review was presumably one of the ingredients for the MOU signed by the parties in August 2006. However, the information bulletin of January 2007 (Exhibit 8) indicated that the parties had still not agreed on a full list of the employees who were affected by Broekaert.

23 The grievance filed by the grievor in August 2006 must be considered in the context of that sequence of events.

24 Much of the attention of the parties in their arguments before me was directed to the question of whether the grievance was a continuing grievance (in which case the grievor would be limited to a remedy for a period not exceeding 25 days before the presentation of the grievance) or a grievance alleging a single breach (in which case the grievance would exceed the time limit of 25 days by several years). The issue of whether the grievance should be characterized as a continuing grievance was integral to the argument made by counsel for the employer that the situation presented by this grievance is on all fours with the circumstances in Baker and therefore caught by the principle in Coallier.

25 The issue of how the grievance should be characterized was also central to the argument made by the bargaining agent representative that the employer had changed its argument as to how the grievance should be characterized, and that the employer was barred by section 95 of the Regulations from raising an objection to my jurisdiction on the grounds that they had not made a consistent argument over the course of the grievance procedure.

26 Section 95 of the Regulations is intended to prevent one party taking the other by surprise at adjudication by raising an objection to timeliness that has not been raised before. As mentioned earlier, the employer did reject the grievance at stage one and two on the basis that the grievance had not been filed in time according to clause 20.10 of the collective agreement. The objection raised by counsel for the employer in October 2009 was a different one – that no remedy could be given which would extend more than 25 days before the filing of the grievance. Although both of these objections rest on reference to clause 20.10, they are in fact different objections. The objection made before me therefore falls afoul of the provison in subsection 95(2) of the Regulations that an objection to timeliness has to be raised consistently throughout the process.

27 I have an additional basis for rejecting the objection of the employer. I do not accept the argument made by counsel for the employer that this case is identical to the Baker case, and that I should therefore adopt the analysis of the adjudicator in Baker and the application of the principle in Coallier.

28 What makes this case distinct from Baker is the somewhat surprising absence in Baker of any reference to the MOU, which was put in evidence before me by Mr. Robertson. Taken with the exchange between Ms. Enns and Mr. Oakes in December 2005 (Exhibit 9), the flyers produced by the bargaining agent (which the adjudicator in Baker did refer to in the context of when Ms. Baker could be taken to have known of the “circumstances giving rise to the grievance”) and the subsequent exchanges between representatives of the employer and bargaining agent up to late 2009 (including the setting aside by management in the Pacific Region of a sum of money to settle the cases of all employees to whom Broekaert might apply), the MOU must be seen as a significant component of ongoing discussions between the employer and the bargaining agent about a comprehensive approach to the settlement of all issues arising from Broekaert.

29 The counsel for the employer’s suggestion, in his argument, was that, although knowledge of the “circumstances giving rise to the grievance” could not be imputed to the grievor at the time of the employer’s failure to pay the first increment in 2003, such knowledge could be imputed to him from the time the Broekaert decision was issued in 2005, and the time limits for the grievance should be calculated from that point.

30 In my view, this is at odds with the ongoing discussions between the employer and the bargaining agent which took place in the aftermath of Broekaert until late 2009; these discussions were focused on the possibility of reaching a comprehensive solution to the implementation of Broekaert. In the flyer issued by the bargaining agent in May 2006 (Exhibit 7), prior to the conclusion of the MOU, the bargaining agent indicated that agreement had been reached with the employer to review 1447 files from across the country.

31 The MOU stated that it was to apply to “all affected CX employees of CSC who were on strength on August 4, 2005 [the date of the Broekaert decision].” In the document, the employer undertook to provide the bargaining agent with a “list of all the persons who were hired as casual correctional officers with an assigned work week of part-time hours since May 1, 1994.” The MOU indicated that employees could object to their exclusion from the list until November 1, 2006. That date was brought to the attention of employees in at least one bargaining agent publication (Exhibit 8) and by an email to employees from Mr. Robertson (Exhibit 5). The grievor testified that it was at that time he became aware of the issue, and he responded by asking to have his name put on the list and by filing a grievance.

32 All of these exchanges, and the agreement articulated in the MOU, indicate that the parties were proceeding on the basis that a global approach should be taken, and the circumstances of all affected former casual employees should be addressed through a common strategy. According to the evidence put before me, the management representatives of the employer in the Pacific Region thought the task was to identify all employees who fell into the category defined in the MOU and to rectify the breach found in Broekaert, and they asked to be permitted to proceed with this in late 2009. At that point, the employer’s response at the national level was that cases should be dealt with on an individual level. In the grievor’s case, the employer proposed that the situation should be seen as identical to Baker.

33 However, despite Baker, which did not reflect on the implications of the MOU and in which the MOU does not seem to have been in evidence, I have come to the conclusion that the employer did waive the right to object to my jurisdiction on the grounds of remedy (whether in the context of a continuing grievance or not). By their participation in the discussions which, at least until the decision in Baker, held out the prospect of a comprehensive resolution to the claims of all employees covered by the Broekaert principle, the employer conveyed to the bargaining agent and to the employees they represented that the individual claims would be folded into a general settlement package, and that the responsibility of individual employees was to ensure that they were included on the list – a step they could take any time prior to November 1, 2006. The grievor met that deadline for putting his case forward.

34 Given that I have decided that the objection of the employer to my jurisdiction should be rejected, there is little doubt that the grievance must be upheld. The employer did not deny that the grievor was among those employees whose increments were delayed because of the employer’s interpretation of the collective agreement, an interpretation that was held to be erroneous in Broekaert. I therefore find that the grievor is entitled to the redress agreed to by the parties in the MOU.

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

V. Order

36 The grievance is allowed.

37 I will remain seized of the grievance for a period of 60 days from the date of this decision in the event there are any issues arising between the parties in relation to the implementation of the decision.

January 20, 2011

Beth Bilson,
adjudicator