FPSLREB Decisions

Individual grievance referred to adjudication

1 This case is about a claim for standby pay. Cynthia Marks (“the grievor”) worked as a veterinarian in Red Deer, Alberta. She claimed standby pay from February 2, 2000 to November 10, 2006 under article B5 of the collective agreement between the Canadian Food Inspection Agency (“the employer”) and The Professional Institute of the Public Service of Canada for the Veterinary Medicine Group; expiry date September 30, 2007 (“the collective agreement”). The article reads as follows:

B5.01 (a) An employee designated for standby duty shall be available during their period of standby at a known telephone number and be able to return for duty as quickly as possible if called. The Employer will normally supply an electronic communications device or cellular telephone to an employee designated for standby duty.

(b) Where an employee who is supplied by the Employer with an electronic communications device or cellular telephone is not required to be available to respond to contacts, the employee is not deemed to be on standby duty.

B5.02 When the Employer requires an employee to be available on standby during off-duty hours an employee shall be compensated at the rate of decimal five (0.5) hour for each four (4) hour period or portion thereof for which such employee has been designated as being on standby duty.

B5.03 An employee on standby who is called in to work by the Employer and who reports for work shall be compensated in accordance with Article B4 - Call-Back.

B5.04 No standby duty payment shall be granted if any employee is unable to report for duty when required.

2 The grievor argued she was named on a list and required to be available to return to work when called after hours. She claimed she was on standby for many after-hours shifts and that she was called back to work as a result of that standby status. She argued the grievance was timely because she did not claim standby pay until January 2007, and when the employer denied her claim, she grieved within the required time.

3 The employer disputed the grievance on three grounds. First, it did not require the grievor to be on standby; therefore, she was not eligible for standby pay. Second, the grievor knew in 2004 that she would not receive standby pay, yet she did not grieve until February 2007, well outside the 35 days specified in the grievance procedure, in clause D6.09 of the collective agreement. This meant her grievance was untimely. In November 2006, the employer began to pay the grievor standby pay. This meant that she had been paid, by the time that she filed her grievance in February 2007, for a period longer than 35 days preceding the filing of her grievance, which period was the maximum for which she could claim compensation in any event. Again, it meant her grievance was untimely.

4 The issues in dispute in this grievance are the following:

1. Is the grievance timely?
2. Did the employer require the grievor to be on standby?
3. Was the grievor on standby for any of the periods claimed?

5 The grievor carried the burden to prove that, on a balance of probabilities, she was entitled to the standby pay under the collective agreement. The employer raised the timeliness objection and carried the burden to prove its objection on a balance of probabilities.

6 I will first deal with the issue of timeliness. If I find that the grievance was untimely, I will decline to deal with the merits of the standby claim.

7 Clause D6.09 of the collective agreement requires an employee to file a grievance “… not later than the thirty-fifth (35th) calendar 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.” The Federal Court of Appeal in Canada (National Film Board) v. Coallier,[1983] F.C.J. No. 813 (C.A.) (QL), upheld the restrictive nature of grievance time limits and espoused an adjudicator’s obligation to limit the remedy to the time in which a grievance could be filed.

8 There are two periods for which the grievor claimed retroactive standby, February 2, 2000 to mid-2004, and mid-2004 to November 10, 2006. I will deal with each period separately.

February 2, 2000 to mid-2004

9 As early as 2000, the grievor inquired about standby pay, was told it did not apply to veterinarians in Red Deer and did not pursue it. The uncontroverted evidence showed that, in late spring 2004, the grievor approached Dr. Goetzinger, the veterinarian in charge (VIC) at that time, and stated that she should receive standby pay for time spent waiting for callbacks. Dr. Goetzinger told the grievor that she was not entitled to standby pay.

10 Dr. Goetzinger, but not the grievor, also recalled saying the reason for the denial of standby pay was that the employer was not prepared to require veterinarians to be available for callbacks. The difference in their recall about the stated reason for the denial is not significant, given my conclusion.

11 The clear denial of standby pay is significant because it started the clock for the grievor’s entitlement to grieve if she disagreed with the denial. She did not file a grievance at that time or at any time after this discussion until she filed this grievance. I find she was aware of the employer’s decision about her entitlement to standby pay, and she acted to her own detriment when she did not file a timely grievance. The grievance procedure does not dictate that the time limits begin only after a grievor receives an official response to an official claim. According to the collective agreement, time limits began once the employee becomes aware of “the action or circumstances giving rise to the grievance” and the grievor was aware of those in at least 2004. Relying on the grievor’s own testimony, reinforced by her conduct in November 2006, I find that she sought standby pay in 2004 and that she would have taken action to claim it had Dr. Goetzinger suggested she was entitled to receive it. However, the fact that he advised her as he did does not change the fact that her grievance is untimely. The grievor was not bound to accept his evaluation of her request. It was up to her, at that point, to consider her employer’s response and to decide if she wanted to file a grievance. Therefore, clause D6.09 of the collective agreement makes her grievance claim for standby pay between February 2, 2000 and mid-2004 untimely.

Mid-2004 to November 10, 2006

12 Between mid-2004 and November 8, 2004, the grievor continued to report to Dr. Goetzinger and continued to make herself available after hours. Dr. Goetzinger reported to Bob Unrau, the inspection manager, who was the superior responsible for approving leave and other requests. On July 13, 2004, Mr. Unrau sent an email to Dr. Goetzinger, directing him to have either the grievor or himself (Dr. Goetzinger) handle after-hours calls, if any. If they were not available, Dr. Goetzinger was to approach one of the other veterinarians. Other veterinarians were no longer on rotation because of a concern about the cost of travel for them to return to the worksite. The grievor handled most of the callbacks but did not claim or grieve about standby pay.

13 Dr. Goetzinger left the site on November 8, 2004, and the grievor became the acting VIC. In spring 2005, the position became permanent. The VIC prepared the schedule and assignments. The grievor did not change her assignment or add other veterinarians to the after-hours rotation. As acting VIC or the VIC, she took no action to pursue standby pay.

14 In spring 2005, the grievor also began speaking with other VICs in other provinces about the after-hours availability of veterinarians. As a result of those discussions, the grievor took action from May 10, 2005 to limit the availability of veterinarians from Monday to Friday and to have no availability on weekends.

15 October 31, 2005, the processing plant in which the grievor and her colleagues work started a double shift, which lasted until summer 2006. A veterinarian was scheduled to be on-site for the additional shift, Monday to Friday. The plant still needed a veterinarian to complete inspections and to sign paperwork after hours from Friday night to Saturday night. The grievor, as the VIC, agreed to do this work because it was not fair to the rest of the staff, none of whom wanted callbacks. She did not seek or grieve about standby pay.

16 In July 2006, the plant returned to a single-shift operation. Again, the grievor took action to limit the availability of the veterinarian after hours. Many times, the grievor felt she was the only person available. As the VIC, she felt it was her obligation to either assign another veterinarian to provide the inspections and sign the related paperwork  or do it herself. The other two veterinarians lived too far away, so she felt that left only her. She did not seek or grieve about standby pay.

17 In spring 2006, the grievor spoke to Dave Travers, Acting Chief Inspector, and later to Mr. Unrau, about standby pay for other staff who were also on a call list used by the plant after hours. Unlike the veterinarian schedule, there was no specific assignment or listing on the schedule for other employees; the plant would simply begin calling people on the list until someone agreed to come in. For the veterinarians, both they and the plant knew who would be called and be expected to return to work from the schedule prepared by the VIC. By November 2006, Mr. Unrau decided the other staff would receive standby pay.

18 That decision prompted the grievor to raise the issue of standby pay for the veterinarians. Mr. Unrau agreed the veterinarians should also receive standby pay. From November 10, 2006, the employer paid the grievor standby pay.

19 In January 2007, the grievor submitted her claim for retroactive standby pay for between February 2, 2000 and November 10, 2006. On January 15, 2007, the employer denied her claim. On February 12, 2007, the grievor filed her grievance.

20 I find the portion of the grievor’s claim from mid-2004 to November 10, 2006 untimely. From mid-2004, the grievor was aware of the employer’s position on the standby pay issue. She took other actions to limit the potential hours of availability for veterinarians and made choices as the VIC about who would be available. However, until November 2006, she did not again raise the issue of standby for veterinarians or attempt to grieve it. She took no action to enforce her rights under the collective agreement.

21 February 12, 2007, is more than 35 days after the last event for which she did not receive standby pay. In the 35 calendar days before the grievance, the grievor knew she was entitled to standby pay and was receiving it. There was no evidence of a request to extend the time limits for filing a grievance and even if there had been one and it had been granted, Coallier would apply to limit the payment to 35 days prior to her grievance and she was already paid for it.

22 Her grievance for standby pay before November 10, 2006 is untimely under the collective agreement because it was filed outside the time limits specified in clause D6.09 and because of the application of Coallier,which limits a remedy to the 35-day period before the grievance was filed.

23 I find the grievance is untimely and that I am therefore without jurisdiction over it.

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

Order

25 I order the file closed.

July 31, 2012.

Deborah M. Howes,
adjudicator