FPSLREB Decisions

[1]    The grievor, Isac Schenkman, has applied for an extension of time to file a grievance pursuant to section 63 of the P.S.S.R.B. Regulations and Rules of Procedure. His grievance of the denial of overtime was provided to the employer on November 24, 1997, and claimed overtime for the preceding 15 years. The employer objected to the timeliness of the grievance at each level of the grievance process and in correspondence to the Board after the grievance had been referred to adjudication.

[2]    The overtime grievance was one of several grievances referred to adjudication after Mr. Schenkman was terminated from his position at Public Works and Government Services Canada in January of 1999. The grievance against termination was allowed and Mr. Schenkman was reinstated by a decision of the Board (2002 PSSRB 62) dated July 18, 2002. The overtime grievance was not addressed in that decision, as counsel for the grievor indicated that it would be left until after the outcome of the termination grievance.

[3]    By letter dated April 13, 2003, counsel for the grievor requested that the Board exercise its discretion under section 63 of the P.S.S.R.B. Regulations and Rules of Procedure to extend the time limits. Counsel stated in her letter that the Board would need to hear evidence on this issue to determine if there is a "clear and cogent" explanation and justification for the delay to grieve.

[4]    Both parties agreed that I should first make a ruling on the extension of time application, prior to proceeding to a hearing on the merits of the grievance.

[5]    There were five and one-half days of hearing. Mr. Schenkman testified on his own behalf, and there were two witnesses for the employer. An order excluding witnesses was requested and granted.

EVIDENCE

Grievance history

[6]    Mr. Schenkman is a marine engineer and senior project manager with Public Works and Government Services Canada (PWGSC) and commenced employment with the federal government in 1982. On November 24, 1997, Mr. Schenkman filed a grievance against the denial of compensation for overtime. In his grievance, he stated: "My managers have been denying me compensation for overtime worked in the past 15 years."

[7]    At each level of the grievance process, the employer representative denied the grievance on the basis that it was untimely, in accordance with clause 31.08 of the collective agreement for the Engineering and Land Survey Group. Clause 31.08 of the collective agreement (Exhibit G-1) states:

An employee may present a grievance to the first step of the procedure . not later than the twenty-fifth (25th) day after the date on which he is notified orally or in writing or on which he first becomes aware of the action or circumstances giving rise to the grievance.

[8]    In the grievance process, Mr. Schenkman explained the delay in filing his grievance by alleging that from the beginning of his employment his managers had told him that he was part of the management team and therefore not entitled to overtime. He also alleged that his manager at that time, Alec Chan, had denied him overtime and told him that since he was part of management he was not entitled to overtime. In the second level response from Paul Wong, Regional Director, those allegations were responded to as follows:

.First, with respect to your claim that you were misled by your previous managers as far as being told that you were not entitled to any overtime, there is no way to verify your claim as your previous managers retired from PWGSC over two years ago. In any event, the onus of proof would be on you to demonstrate the accuracy of your assertion that previous management misled you. Further, you are a senior project manager having worked for this Department for sixteen years, and I would conclude that you must have a reasonable understanding of your entitlements in this regard. Most importantly, I note that you had submitted overtime claims on at least nine occasions for which you were reimbursed by management. Therefore, on the basis of these facts I am not persuaded that you were either misled by management or denied overtime claims that were appropriately authorized and submitted.

.

Third, with respect to your present manager, Alec Chan's comment that you were part of management and therefore not entitled to any overtime, I have reviewed this statement with Mr. Chan. In view of the fact that Mr. Chan did approve overtime on the nine occasions mentioned above, I am satisfied that the comments which you attribute to him have not had the effect of depriving you of overtime for which you were compensated.

[9]    The responses at the third and fourth levels repeated these points. In addition, in the third level response the employer asserted that since overtime had been paid, Mr. Schenkman must have been aware of his rights to claim overtime.

[10]    In the third level reply, dated July 17, 1998, the Department representative, Suzanne Borup, noted that at the third level hearing Mr. Schenkman had provided an itemized list of overtime hours (32.5 hours) in the 25 days preceding the grievance date where overtime was claimed (Exhibit G-31). She indicated that she might have been prepared to recognize the timeliness of the request if it had been submitted at the time that the grievance was submitted. However, it was now untimely. She also noted that no formal request for overtime compensation had been made for this period. In the fourth level response, Michel Cardinal, the Assistant Deputy Minister, wrote that if Mr. Schenkman had been required to work overtime in the 25 days preceding the date of the grievance, he could submit his claim for compensation for management's consideration. Mr. Schenkman did not submit a claim for the 25 days preceding the grievance.

Background

[11]    Prior to immigrating to Canada in 1980, Mr. Schenkman had spent most of his life in Romania. From 1973 to 1980, he worked in Israel as Chief Engineer for the Port of Ashdod. In that position, he supervised over 100 people and testified that the workforce was unionized. When he arrived in Canada, he worked for a consulting engineering company and then PetroCanada as a senior project engineer, prior to joining PWGSC in June of 1982.

[12]    Mr. Schenkman received a letter of offer dated June 8, 1982, for a two-year term position as an ENG-4 Project Manager (Exhibit E-2). The letter stated that union dues were to be deducted from his pay. He was made indeterminate in 1984. The letter of offer for the indeterminate position (June 19, 1984, Exhibit E-4) stated that the terms and conditions governing his employment were the Public Service Terms and Conditions Regulations and "the appropriate collective agreement". In 1990, he was promoted to the ENG-5 level.

[13]    In the personal information form that was filled in at the time of his hiring, he indicated that he could speak and read English fluently (Exhibit E-1). Mr. Schenkman testified that in the beginning of his career at PWGSC his ability in English was "not too fluent". In the appraisal prepared by his supervisor, R. Seawright, in 1984, it was noted that Mr. Schenkman's oral communication required improvement, and that English courses were recommended (Exhibit G-4). Mr. Schenkman testified that he did take courses in English. In his 1990 appraisal, it was noted that he should "continue excellent efforts at developing and maintaining proficiency in English and French" (Exhibit G-8).

[14]    As a project manager, he was responsible for the northeastern Ontario region and supervised approximately 10 people. As a project engineer, his responsibilities included harbours, dams, bridges, ferry docks and dredging (Exhibit G-4). His responsibility for both the operation and the maintenance of the French River Dams was a significant part of his workload. The French River Dams were about 500 kilometres from his Toronto office and took about five-and-a-half hours to get to by car. When construction was ongoing, he would travel to the Dams two or three times a week; other times, he would go there once a week or once a month. He testified that his responsibilities for this region required a lot of travel to remote locations and a lot of time spent on site.

[15]    Alec Chan, as Regional Manager of Civil and Marine Engineering from 1996 to 1997, was Mr. Schenkman's supervisor during this period. He testified that he spoke to Mr. Schenkman about his hours of work on a number of occasions. It was Mr. Chan's view that as a senior project engineer, Mr. Schenkman was spending too much time on site and not enough time in the office. Mr. Chan said he was concerned that Mr. Schenkman was running things as a "one-man show" and was not delegating work to his subordinates. It was his view that Mr. Schenkman could have hired a consultant to do the on-site supervision. Mr. Schenkman felt that his presence was required on site. In response to an investigation of his travel claims in January 1997, he explained why he was on the road so often:

.

It should be noted that the marine projects have unique characteristics and requirements. For example, in the past the native people have suddenly blocked the roads or declared the contractor persona non grata, as well as sensitive environmental issues (eg. oil spills occurring, contaminated materials etc.) accidents, etc., where the project manager was required to be present again, at the same site, on the next day.

.

Overall my best reply to the memorandum is that not only were all my projects done on time and within budget, but with considerable success where the awards and clients letters speaks for themselves. It is my opinion that this performance could only be done by using frequent and regular site visits and not managing projects strictly from the office. Moreover, it is the clients request that the project manager be present in all the site meetings with frequent presence during the duration of the construction projects.

.

[16]    Mr. Schenkman's projects were always on time, and on budget, and he received many testimonials from clients about his work (Exhibit G-7). He testified that there was pressure from clients to deliver projects on time and on budget. He also testified that in 1996 he was responsible for the Martindale Pond, preparing a course for the World Rowing Championship. There was a great deal of outside pressure to complete the project on time within a limited budget.

[17]    All employees prepared weekly timesheets. Mr. Schenkman requested copies of his timesheets under access to information, but was advised that they had been destroyed. He had kept only a few timesheets (Exhibits G-16 and G-19). At the hearing, he produced travel logs (Exhibit G-12) that showed his departure and return times for trips outside the office. He testified that these logs would show the hours worked off-site. Mr. Schenkman testified that his supervisors approved his travel claims, knew where he was going and what he was doing with his time.

[18]    Mr. Schenkman also produced a document that recorded the amount of time worked per project for the period 1993-97 (Exhibit G-13). He testified that he obtained this document in June of 1997. The document has a column for regular hours of work, as well as overtime hours. In Mr. Schenkman's case, all of his hours of work appear under the "regular hours of work" column. This document also indicates the total number of hours worked by each employee during the year. Mr. Schenkman testified that based on a 37.5-hour workweek, the amount of annual hours of work without overtime was 1,950 hours. Mr. Schenkman calculated that in 1993-94, he worked an additional 555 hours, an additional 583 hours in 1994-95, and an additional 719 hours in 1995-96.

[19]    Paul Wong was the Regional Director of Architectural and Engineering Services in 1997. He testified that the "Weekly Time Sheet" (Exhibit E-14) was filled out by each employee to keep track of the time spent on each project and was the basis for sending out invoices to clients. It was not a financial document but was a project management document. He testified that the Human Resources Compensation Unit, which records overtime hours, would not see this document; therefore, hours marked as "overtime" would not be recorded as overtime hours for an employee. Mr. Wong stated that the "Attendance and Extra-Duty Report" (Exhibit E-15) is used to record all activities other than regular hours of work. It is this form that goes to the Human Resources Compensation Unit. The employee is responsible for filling out the form, and the immediate supervisor is responsible for approving it.

[20]    Mr. Wong testified that there was a "professional agreement" in the workplace that employees would not claim all hours worked in exchange for flexibility to accommodate family and other responsibilities. However, employees did record all their time worked so they would be able to ask for some leeway the next time they needed some flexibility. The reason to keep track of all hours worked was for project cost management purposes, and to justify the cost to the client, Mr. Wong testified. He also testified that supervisors do not check arrival or departure times as long as the work is getting accomplished. According to Messrs. Wong and Chan, the majority of employees in the ENG category did not claim overtime.

[21]    Sometime in May or June of 1997, Mr. Schenkman obtained a project printout document (Exhibit E-18), which records the activity for each individual by project. Mr. Wong testified that the purpose of this document was for each division to get a handle on the amount of time being spent on each project, as well as tracking unbillable time.

[22]    PWGSC bills the client either on a time basis or a fixed price basis. The rate is determined by the number of hours required to complete the job, at the applicable salary rate, multiplied by a billing rate. The "Specific Service Agreement" (SSA) is the agreement between PWGSC and the client that sets out the work to be done, the hours required to do the work, and the cost to the client. The SSAs set out the number of estimated overtime hours, as well. Mr. Schenkman testified that his request for copies of the SSAs covering the period of his claim for overtime was denied, but he did have one for a project in 2002 (Exhibit G-14). Mr. Wong testified that the extra hours set out in an SSA would be used if there were an unforeseen problem that arose during the project. Mr. Wong testified that the project manager has full control of the project and initiates the billing to the client. The client has no authority over the approval of overtime hours.

[23]    Mr. Schenkman testified that he asked his manager, Mr. Seawright, about overtime in 1982, at a business lunch, and he was told that he did not get overtime because he was part of management. Mr. Schenkman testified that Woody Wurtz, his supervisor, was at the lunch. Mr. Schenkman believed Mr. Seawright and never thought to question his conclusion. Mr. Schenkman testified that as a landed immigrant he believed that, since this was the federal government, they would not lie to their employees. He asked Mr. Wurtz sometime later about overtime and received the same response.

[24]    In 1990-91, Mr. Schenkman took a management orientation program for middle managers (Exhibit G-9), which, in his mind, only confirmed that he was in a manager's position.

[25]    Mr. Wurtz left the Department in 1995, and Mr. Chan took over as supervisor in 1996. Mr. Schenkman approached Mr. Chan in April requesting time off because of personal matters. Mr. Chan told him that he would help him and asked him to fill out the "Weekly Time Sheet" and the "Attendance and Extra-Duty Report" (Exhibits G-15 and G-16). Mr. Schenkman claimed 22.5 hours of overtime at the applicable overtime rate (time and a half) on the "Attendance and Extra-Duty Report". Mr. Chan amended the Report, indicating that the time was to be compensated at straight time. The "Leave Transaction Report" (Exhibit G-17) shows that 22.5 hours in compensatory leave was taken on May 21, 1996.

[26]    In April and May of 1997, Mr. Schenkman was given compensatory leave for overtime work done at the Welland Canal, the Martindale Pond and the Kingston Bridge Project. A handwritten note taken from Mr. Chan's desk calendar from some time in 1997 (undated) stated: "Your overtime will only be allowed for the D. Minister's visit to Martindale Pond and the Kingston fatigue testing on one weekend" (Exhibit G-18). Mr. Chan deducted four hours from the total claim of 26.5 hours because of a dental appointment taken by Mr. Schenkman. Mr. Chan authorized the claim at a straight time rate, for a total of 22.5 hours (Exhibit G-20). Mr. Schenkman testified that he took the leave right away and nothing was entered into the leave records. The "Leave Transaction Report" (Exhibit G-17) shows 22.5 hours of compensatory leave taken on January 6, 1997. It also shows 2.5 hours of compensatory leave allotted on April 1, 1997, and 2.5 hours of leave paid out on October 8, 1997. Mr. Schenkman did not recall this last transaction.

[27]    Mr. Chan testified that he approved time off in lieu of overtime for Mr. Schenkman on a "goodwill basis", even though the overtime was not pre-authorized and he felt it was not necessary and was unjustified.

[28]    Mr. Schenkman testified that after Mr. Chan approved his leave, sometime in June or July of 1997, Mr. Chan advised him that he would not approve any more compensatory leave because the Regional Director (Mr. Wong) was "upset". Mr. Schenkman testified that Mr. Chan told him that since he was part of management he could not get overtime. Mr. Schenkman testified that Mr. Chan told him: "I made a mistake and can't repeat it", and asked him not to raise this issue again. Mr. Chan could not recall the specifics of any conversations with Mr. Schenkman. Mr. Wong had no specific recollection of talking to Mr. Chan about Mr. Schenkman's overtime prior to the grievance process.

[29]    Mr. Wong testified that he did not believe that Mr. Chan would have said that project managers were not entitled to overtime; however, he did not recall if Mr. Chan admitted to him that he said this. In the second level grievance response, Mr. Wong stated that he was satisfied that "the comments which you attribute to him have not had the effect of depriving you of overtime for which you were compensated". Mr. Wong testified that this was not an admission that Mr. Chan had made the alleged statement and it had not been his intention to suggest this. He further testified that it was his opinion that whether or not Mr. Chan said this or not was not relevant in light of the fact that overtime had been approved on a number of occasions.

[30]    In his weekly timesheet (Exhibit G-16), Mr. Chan adjusted Mr. Schenkman's recorded hours of work, in the words of Mr. Schenkman, " in order for there to be no overtime". Mr. Chan testified that the weekly timesheet was for monitoring and controlling the budget of the project and had nothing to do with claims for overtime. He testified that he was able to direct hours from one project to another, in order to maximize the billable hours. He would look at the project budget against the percentage of the project completed and balance the hours accordingly. When the budget for a project was getting "tight", Mr. Chan testified that he could only allow "so much" to be billed to the project.

[31]    Mr. Schenkman spoke to Eva Tigno, an administrative assistant, sometime in May 1997. She asked him why he was the only one who did not receive overtime. Mr. Schenkman testified Ms. Tigno showed him documentation that indicated every other project manager was receiving overtime. Mr. Schenkman testified that this was the first time he learned that other project managers received overtime. He also testified that when he raised this with Mr. Chan, he started to "yell like a possessed man", telling him he was part of management and that he should not raise the issue anymore.

[32]    Commencing in January of 1997, Mr. Schenkman was under investigation for his travel claims for the period of April 1994 to December 1996. In a memorandum written to Mr. Chan on May 22, 1997, with regard to this investigation, he stated that he had never received overtime compensation, which he considered a "serious irregularity" (Exhibit G-21). Mr. Schenkman testified that he raised the overtime issue because he was starting to question the story presented by Mr. Chan. He was also concerned that overtime was being "authorized by the client" through the SSAs but that overtime was never paid to him. He also testified that after his conversation with Ms. Tigno, he had talked to other project managers, who told him they received overtime "all the time". In a subsequent memorandum on June 24, 1997 (Exhibit G-22), he noted that his overtime hours were charged to and paid by the clients but that he never received any overtime "money". In the memorandum, he stated that he performed a total of 761.9 overtime hours in 1995-96, at a total value of $63,063. On September 10, 1997 (Exhibit G-23), Mr. Schenkman repeated his concerns about overtime hours and stated:

.

In spite of my many requests, no official answer or action has been taken. I would like to be informed at your earliest convenience about your steps, to recuperate the substantial amount of compensation owed to me.

.

[33]    Mr. Schenkman testified that he did not follow up on this memorandum right away because his projects were under investigation during this period. In further memorandums to Mr. Chan dated October 1 and November 3, 1997 (Exhibits G-24 and 25), Mr. Schenkman again asked for a response. Mr. Chan testified that he had been instructed not to reply to these memorandums because there was an ongoing investigation.

[34]    In November of 1997, Mr. Chan advised Mr. Schenkman that an auditor wanted to talk to him. Mr. Schenkman became concerned about this and discussed the investigation with a colleague, who suggested that he talk to someone about union representation. Mr. Schenkman met with a union representative near the end of November. After Mr. Schenkman filled out a membership form for the Professional Institute of the Public Service of Canada (PIPSC), his union representative provided him with a copy of his collective agreement. This was the first time that he had seen the collective agreement.

[35]    Mr. Schenkman testified that at the first level grievance hearing, in response to representations about the failure to pay overtime, Mr. Chan said that he (Mr. Chan) was a manager and could do whatever he liked.

ARGUMENTS

For the Grievor

[36]    Counsel for the grievor, Ms. Sams, noted that the Board has jurisdiction under subsection 63(b) of the P.S.S.R.B. Regulations and Rules of Procedure to extend the time limits contained in collective agreements, on such terms and conditions as it establishes. Most of the case law relating to this discretion of the Board relates to terminations where the employee knew of his or her right to grieve but waited for some reason. The purpose of extending the time limits in this case is to "regularize" what happened (nunc pro tunc), as the grievance did go through the process and was dealt with by the employer (Valadares (Board files 166-2-19596 and 19597)).

[37]    Ms. Sams submitted it was clear that the purpose of the provision for the extension of time was intended to allow the hearing of the grievance on its merits. In this case, the grievor's rights are affected, and it is also serious - the denial of the right to claim overtime. The practice before most courts is to allow the matter to be heard on the merits and not have the merits frustrated by time limits.

[38]    She also submitted that the collective agreement provision at issue (clause 31.08) says that an employee "may present a grievance." The parties' use of "may" means that the time limit is not imperative. The conditional "pouvoir" is used in the French, as well. The Interpretation Act, s. 28, provides that "may" is to be used permissively.

[39]    Ms. Sams stated that the question to be determined is whether there is a justifiable reason for extending the time limits. The case law requires that there be a "clear and cogent explanation and justification" for the delay (Rattew (Board file 149-2-107)). In Coleman (Board file 149-2-26), the adjudicator concluded that a cogent explanation could include ignorance of the grievance process and the time limits associated with the process. The test set out in the case law also requires a balancing of the prejudices to the parties (Dunham (Board file 149-2-39)). The Federal Court in Frève v. Canada (Attorney General), 2001 F.C.A. 98, also included a requirement that the grievance have a serious chance of success on the merits.

[40]    Ms. Sams noted that Mr. Schenkman had absolutely no claims for overtime between 1982 and 1996 and was never compensated for his overtime, either in pay or in compensatory time. It was uncontradicted evidence that he was never provided with a collective agreement; the first time he saw the collective agreement was in 1997, when his union representative provided him with a copy. He remained unaware of his rights and entitlements until the fall of 1997. Early on in his career, his managers told him that as part of the management team, he had no right to claim overtime. This evidence of Mr. Schenkman was not brought into dispute. No managers of Mr Schenkman prior to 1996 were called to testify. His right to overtime was "put to sleep" by the actions of management. When he asked for time off in lieu of overtime compensation, he was told that he had no right to overtime. This was systemic treatment by all of his subsequent managers. How could this go on? The grievor became more and more confirmed by the language used to describe his work: "management". Mr. Schenkman supervised staff, sometimes up to 15 people, and at one point in his career he was the first step in the grievance process. In 1989, he took middle management courses.

[41]    Ms. Sams also submitted that all of this was compounded by his lack of familiarity with the English language, and his ethnic background. He had trust and confidence in the Government of Canada and never thought that he would not be told the truth. He never thought to ask about his rights because he had no reason to think that what he was told was wrong. His background placed him in a vulnerable situation and let him be taken advantage of.

[42]    She noted that Mr. Schenkman had to travel extensively in order to manage his numerous projects. The extensive travel was necessary to meet client needs and to meet the project deadlines. He was never told to do his work differently or not to travel. There was no evidence for the period from 1982 to 1996 that contradicted his understanding of the expectations for his job. The testimonial letters (Exhibit G-7) and his appraisal (Exhibit G-8) support this; he was described as a "very effective" project manager. Mr. Chan's testimony was "pre-textual". If he thought the travel was a problem, he did nothing to raise it. Mr. Schenkman's travel claims were approved and paid, and his travel logs were approved. Furthermore, his travel plans were approved in advance (Exhibit G-12). If Mr. Schenkman was not supposed to have been out of the office, managers could have documented their concerns or denied his claims. Mr. Schenkman did all these hours of travel without knowing that he could claim overtime. There was no benefit to him for all this extensive travel, other than a job well done. With regard to mileage claims, the employer representative insinuated that Mr. Schenkman had somehow increased his mileage claims. The travel directive determined the rates, and the claims were authorized and paid over the years. Mr. Schenkman was audited and the issue was resolved. The issue of travel claims was simply a red herring; the issue here is overtime, not travel claims.

[43]    Ms. Sams asked why would the grievor work long hours, travel long distances and not get overtime, unless he thought it was simply part of his job? Job satisfaction for Mr. Schenkman meant client satisfaction, and success was measured by being on schedule and within budget. Mr. Schenkman worked a total of 2,209 extra hours over the period 1992 to 1996, as shown in the document showing recorded time per project (Exhibit G-13). This translates to 441.9 extra hours a year. It became very advantageous to the Engineering Section of PWGSC for Mr. Schenkman to work all these extra hours and make all this profit. Someone must have noticed this as an advantage. Managers were only too happy to have Mr. Schenkman believe he had no right to overtime. Overtime hours were budgeted for in the SSAs, according to the testimony of Mr. Chan. It was absolutely essential that all the hours required to do the work be included in the SSA. Mr. Wong testified that overtime was a normal occurrence. In cases of unforeseen circumstances that required additional hours, the SSA would be renegotiated with the client through the issuing of a change order. The evidence shows that Mr. Schenkman was billed to the client at double the cost of his hours, and included the cost of his extra hours.

[44]    Ms. Sams argued that pre-authorization of overtime is not an issue in this case, because you cannot ask for authorization if you do not know that you have a right to it in the first place. There was no evidence of any claims for overtime between 1982 and 1996. Was Mr. Schenkman a masochist? A more plausible explanation is that he was under the false impression that he had no right to claim overtime. If he had been aware of his rights, surely at least once over the 15 years he would have made at least one claim. If the employer could have made the case that the grievor knew of his rights, it could have called Mr. Wurtz or Mr. Seawright as witnesses. Ms. Sams said that I could draw a negative inference from their absence.

[45]    Ms. Sams submitted that Mr. Chan's testimony is important for what it did not say. He did not deny that he told Mr. Schenkman that he was part of management and not eligible for overtime. The question was not put to him in examination in chief. Mr. Chan afforded Mr. Schenkman some time off in the period of April to June 1996. He allowed the leave reluctantly. He allowed the compensatory leave, even though it was not pre-authorized and was given at straight time, not at time-and-a-half. This leave does not constitute overtime, as overtime would have been paid at one-and-one-half times. Mr. Chan was "doing a favour" for Mr. Schenkman, and the leave provided was not as a result of overtime. Mr. Chan also changed all Mr. Schenkman's hours on his time sheets to 37.5 hours.

[46]    Ms. Sams noted that timesheets (Exhibit G-15) were dated after Mr. Schenkman took the compensatory leave (the 22.5 hours taken in May). This is the only evidence of any compensatory time. Mr. Schenkman got time off in May without having signed an attendance report. If Mr. Schenkman had filled out a leave form without having filled out an attendance sheet, he would have been "in the red" in terms of leave entitlements. Mr. Schenkman did not know he had to fill out the form. As for Mr. Schenkman getting overtime, it was not in the best interests of the Section. It was even more difficult to give him overtime because he was under investigation by Mr. Wong at the time. How could Mr. Wong allow him to get overtime under these circumstances? How could Mr. Wong admit that Mr. Schenkman had the right to overtime without acknowledging the past failure to pay overtime? If the grievor knew he had the right to claim overtime, why did he not make any further requests for overtime in 1996 and 1997? It is unlikely that he did not work overtime hours during this period. Why would he continue to put his hours of work in the regular hours of work column if he knew he could claim overtime?

[47]    Ms. Sams also noted that for the Martindale Pond project, Mr. Chan asked Mr. Schenkman to attend on a weekend with the Deputy Minister as a favour, and did not do so officially. The request was in the form of a handwritten note. No forms were ever filled out and it was never confirmed as legitimate time off. Ms. Sams submitted that Mr. Chan was simply not believable in his testimony about time off given to Mr. Schenkman. On the dates for which overtime was approved, Mr. Chan subtracted time taken for dentist appointments. This would not have been done on any official leave form. Furthermore, the overtime was not at the legal rate of 1.5 times, but was simply listed as straight time. Why would Mr. Chan not have had Mr. Schenkman fill out forms for overtime compensation? Why would he not have the leave appear in the books? If Mr. Schenkman knew he had a right to leave at time and a half, why would he settle for less? Ms. Sams concluded that Mr. Chan did not want Mr. Schenkman's time appearing as overtime.

[48]    Ms. Sams submitted that in May of 1997, Mr. Schenkman spoke to Ms. Tigno and she asked him why he was the only project manager not claiming overtime. Meanwhile, the clients were being billed for the overtime he worked. When Mr. Schenkman raised it, Mr. Chan screamed at him that he did not want to hear anything about this issue. The grievor wrote a memorandum about the overtime issue on May 22, 1997. There was a deliberate decision by management not to respond to his inquiries contained in the memorandums that he wrote.

[49]    Ms. Sams noted that in the summer and fall of 1997, Mr. Schenkman was under review by the Royal Canadian Mounted Police (RCMP); all of his projects were being reviewed, he was given no new projects and he was in the process of being removed from his job and harassed by Mr. Chan. Around early November, Mr. Schenkman went to speak to his union representative for the first time and found out that he had a right under his collective agreement to claim overtime. The grievance soon followed.

[50]    Ms. Sams argued that the evidence shows that Mr. Chan assigned Mr. Schenkman's hours to others in the Section who were not performing as well as he was. Mr. Schenkman came under budget in his projects, and Mr. Chan used the profit margin to beef up productivity for the Section, including assigning hours to himself. Not allowing Mr. Schenkman's overtime claim left more profit for the Section. Mr. Schenkman was working very hard and so many hours, bringing in revenue and carrying the Section; it is not right that he be denied a basic right under the collective agreement. At the grievance hearing, the grievor confronted Mr. Chan on this and Mr. Chan did not deny it but said that he was a manager and could do anything he wanted.

[51]    Ms. Sams submitted that the second level grievance response speaks for itself. Mr. Chan actually told the grievor that he was not entitled to overtime. Clearly, the employer misrepresented Mr. Schenkman's rights. Ms. Sams referred me to the definition of "fraud" in Black's Law Dictionary. She submitted that Mr. Schenkman did not understand his right to overtime under the collective agreement; the employer had an obligation to provide a copy of the collective agreement and explain his rights under that agreement, including explaining the overtime clause when he asked about his entitlement. Instead, the employer misrepresented his rights, and Mr. Schenkman was taken advantage of; "he worked like a dog and was put to sleep on his rights." His managers reaped a benefit and it was Ms. Sams' submission that this constituted fraud.

[52]    Ms. Sams referred me to Phelan and Easton (Board files 166-2-12643 and 12644), where the adjudicator held that there must be an unequivocal denial of overtime for the time limit on the filing of a grievance to commence. She also referred me to Dunham (supra), on the purpose of applications under section 63, highlighting the balancing of the reason for the delay against the prejudice to the employer. She referred me to Demercado v. Canada, [1984] F.C.J. No. 1119 (QL). She submitted that, according to the Federal Court's decision in Frève (supra), the power to extend the time limits is discretionary and must be exercised judicially.

[53]    Ms. Sams submitted that the decision of the Federal Court of Appeal in Canada v. Coallier, [1983] F.C.J. No. 813 (QL), does not apply to situations in cases where there was a misrepresentation. She also referred me to two decisions of this Board that did not apply Coallier: Macri (Board file 166-2-15319) and Valadares (supra).

[54]    Ms. Sams submitted that there was an implied authorization of overtime in this case and referred me to Suchma (Board file 166-2-19518).

[55]    Ms. Sams argued that in United Electrical, Radio and Machine Workers of America (1952), 3 L.A.C. 980, the arbitrator stated that ignorance of the grievance procedure was no excuse for a delay in filing a grievance, unless the grievors had been misled in some way. Clearly, Mr. Schenkman had been misled, Ms. Sams submitted.

[56]    Ms. Sams also referred me to a decision of the Federal Court (Canada (Attorney General) v. St-Laurent (1998), 151, F.T.R. 112) that held that one of the letters written by a grievor was the equivalent of a grievance, and on this basis the grievance was held to be timely.

[57]    In conclusion, Ms. Sams submitted that I should grant the extension of time and allow the grievor to provide evidence on his hours of work for the period 1989 to 1998 inclusively.

For the Employer

[58]    Counsel for the employer, Mr. Jaworski, submitted that much of the evidence was irrelevant to the issue of timeliness. The grievor would like to colour this issue with evidence on the investigations that he was under but when the dust settles, the one issue that remains is timeliness.

[59]    Mr. Jaworski noted that Mr. Schenkman is claiming overtime for the 15 years prior to November 24, 1997, some 22 years down the road as of the date of this hearing. At all grievance levels, the employer said the grievance was untimely. In 1999, the employer sent a letter to the Board and objected to the jurisdiction of the Board based on timeliness.

[60]    Mr. Jaworski submitted that Mr. Schenkman is a sophisticated, educated and bright man, and his suggestion that he was a poor immigrant and was misled does not ring true. Mr. Schenkman's job history, listed in Exhibit E-1, shows that prior to coming to Canada, he had a senior chief engineer position and was responsible for over 300 people in 1975. In his jobs after he came to Canada, he was required to read and interpret documents in English. His application form (Exhibit E-1) also clearly shows that he had facility in English. When he was asked to explain this in re-examination, he said that someone else had filled out the form, and that he was really not that good in English.

[61]    Mr. Jaworski noted that in the letter of offer (Exhibit E-2), the language requirement of the position was clearly stated. In both letters of offer (Exhibits E-2 and E-4), he was advised that he would be paying union dues and that the terms and conditions of his employment were governed by the appropriate collective agreement. In 1990, the grievor was reclassified as an ENG-5 and was a senior project manager, overseeing whole projects and coordinating staff. There is no dispute that Mr. Schenkman obtained excellent results. Mr. Schenkman's job required him to know all Treasury Board and PWGSC policies, including those relating to human resources and contracting. Mr. Schenkman supervised people who would come to speak to him about overtime, and he would approve it. Mr. Schenkman testified that, although he never read the overtime policy (Exhibit E-13), he was aware of the principles.

[62]    Mr. Jaworski submitted that the "Attendance and Extra-Duty Report" filled out by Mr. Schenkman in June 1996 (Exhibit G-15) confirms that he knew that overtime could be claimed. Mr. Schenkman knew that he had to fill out the form, because he did it. More importantly, he received overtime - not what he wanted, or what he should have received, but he was paid for overtime. Mr. Jaworski submitted that if I accept the evidence on his being misled, this is when the clock starts, because as of June 1996, he knew that he had not received overtime since 1982, although he was entitled to claim it.

[63]    Mr. Jaworski also submitted that the note from Mr. Chan in 1997 (Exhibit G-18) and the weekly timesheet (Exhibit G-20) are evidence on the approved overtime by Mr. Chan. If Mr. Schenkman did not know of his entitlement in 1996, he certainly knew in early 1997, when Mr. Chan approved the overtime. Furthermore, Mr. Schenkman testified in cross-examination that he went to see his union representative in June or July of 1997, and the date of the grievance is November 1997. On re-examination, he said that it was November when he saw his union representative. Mr. Jaworski argued that the grievor's memory may not be as good as he would have us believe. This brings into question the entire theory that he was misled.

[64]    It was Mr. Jaworski's position that Mr. Chan was the grievor's supervisor for only a short time and has no vested interest in these proceedings, as he has now retired. Mr. Chan was responsible for over 100 employees and the events involving Mr. Schenkman happened a long time ago.

[65]    Mr. Jaworski submitted that Mr. Schenkman testified that he was busy during 1997, yet he was not too overburdened to insert a sentence regarding a "serious irregularity" in overtime in his memorandum of May 22, 1997 (Exhibit G-21). Any question on whether he was misled was put to rest by the May 22nd memorandum. At the very latest, he should have filed his grievance at that time.

[66]    Mr. Jaworski submitted that the application for an extension of time should have been filed in 1998, when the grievor knew that it was untimely: Lusted (Board file 166-2-21370) and Sallenback (Board file 166-2-28734). It is evident that relief in labour relations should be quick and efficient. This requires that grievances be dealt with in a timely manner. This grievance was filed in 1997, and the bargaining agent should not have waited until 2003 to make this application.

[67]    Mr. Jaworski stated that clear, cogent and compelling reasons are required for the granting of an extension (Rouleau v. Canada (Canadian Forces, Staff of the Non-Public Funds) 2002 PSSRB 51). Mr. Schenkman has not demonstrated that he had such reasons for the delay. The employer is entitled to closure on disputes with employees. In Wyborn v. Parks Canada Agency, 2001 PSSRB 113, the adjudicator found that a six-month delay was "significant" and in Wilson (Board files 166-2-27330 and 149-2-165), a nine-month delay was also considered to be excessive. Mr. Jaworski also referred me to Sittig (Board file 166-2-24117).

[68]    Mr. Jaworski submitted that the Board has indeed followed Coallier (supra). Mr. Schenkman knew of his rights long before November 1997. But if he did not, he is limited to a claim of 25 days prior to November 1997. We know that Mr. Schenkman in fact asked for overtime for the period from October 25 to November 24 (Exhibit G-31). By this point, it is without a doubt that he had union representation and knew his rights under the collective agreement, yet he still had not filled out the "Extra-Duty Report" (Exhibit G-15). Mr. Jaworski also referred me to Horvath (Board files 166-2-21133 and 34) and Guaiani (Board files 166-2-21358 and 149-2-109 and 10).

[69]    In conclusion, Mr. Jaworski submitted that I should deny the request for an extension of time. In the alternative, if I do allow an extension of time, I should limit the period covered by the grievance to 25 days prior to the filing of the grievance.

Reasons for Decision

[70]    This is an application by the grievor under the P.S.S.R.B. Regulations and Rules of Procedure for an extension of time for the filing of his grievance. The grievance claims a breach of the overtime provisions of the collective agreement for the period of 1982 to 1998, inclusively. At the hearing, counsel for the grievor requested that the extension of time limits go back to 1989. The Board has the authority to extend the times contained in a collective agreement "on such terms and conditions as the Board considers advisable" (section 63). The Federal Court of Appeal has noted that this discretionary power of the Board must be exercised judicially (Frève (supra)).

[71]    Counsel for the employer raised the timeliness of the application as an issue in his oral argument. In Lusted (supra) and Sallenback (supra), the Board noted that the application for an extension of time limits should be made in a timely fashion. In both cases, the application for an extension of time was made at the commencement of the hearing. This is not the circumstance here, as the application was made by letter to the Board in advance of the scheduled hearing. Furthermore, the parties agreed that I should make a preliminary ruling on this matter. Accordingly, I find that the application is timely.

[72]    Counsel for the grievor argued that the extension of time limits would simply "regularize" what had transpired during the grievance process. The fact that the employer in its responses also referred to the merits of the grievance does not vitiate the employer's primary response that the grievance was untimely. The employer was clear in all its responses that it regarded the grievance as untimely. Referring to the merits of the grievance in the response, as well, is a good labour relations practice that should not be discouraged. The employer cannot be said to have accepted the grievance as timely just because employer representatives in the grievance responses also addressed some of the merits of that grievance.

[73]    Ms. Sams also argued that Mr. Schenkman's memorandum to Mr. Chan constituted a grievance and relied on the decision of the Federal Court in St. Laurent (supra). The grievor in that case had set out the particulars of his dispute with the employer in great detail. Mr. Schenkman's memorandum merely identifies an issue for further discussion and does not reflect any intention to grieve.

[74]    In the hearing, the grievor testified about the substance of grievance discussions. Counsel for the employer did not object to this evidence. Normally, discussions during the grievance process are considered privileged and not admissible (see Brown and Beatty, Canadian Labour Arbitration, 3^rd ed. at: 3:4342). It is important that discussions during the grievance process be protected from disclosure at a hearing in order to ensure that the parties feel free to explore all avenues for settlement. Both parties have waived this privilege through the introduction of the evidence and by not objecting to its introduction. I find that the evidence from the grievance discussions was inconclusive and not relevant to the issue of timeliness.

[75]    The jurisprudence cited by the parties establishes the following basic criteria for determining whether to exercise the Board's discretion under section 63:

• clear, cogent and compelling reasons for the delay;
• the length of the delay;
• the due diligence of the grievor;
• balancing the injustice to the employee against the prejudice to the employer in granting an extension; and
• the chance of success of the grievance.

(Rattew (supra); Rouleau (supra); Wilson (supra); Dunham (supra), Demercado (supra), Valadares (supra) and Frève (supra).)

[76]    Mr. Schenkman relies on two reasons for the delay in the filing of a grievance. The first is that he was deliberately misled by his supervisors. The second reason can best be described as due to language and cultural barriers; the grievor was a new immigrant, unfamiliar with the English language, and overly trusting of the employer. I will deal with each of these in turn.

[77]    Mr. Schenkman's supervisors provided misleading information on his rights to overtime. However, he could have easily checked their assertions that he was not entitled to overtime with either his colleagues (who were allegedly receiving overtime) or his bargaining agent. The letters of offer (Exhibits E-2 and E-4) were clear that his terms and conditions of employment were governed by a collective agreement. Mr. Schenkman also did not make any enquiries about this reference in his letters of offer. In an ideal world, employees could safely rely on the statements made by management representatives about employee rights. Bargaining agents would be much less busy if this were the case. However, in a unionized environment, the expectation is that employees are responsible for being aware of their rights. This includes an expectation that employees will check whether the assertions by management are correct, either by consulting their bargaining agent or the collective agreement. If employees could rely on statements by managers, then by definition almost no grievances would proceed to adjudication.

[78]    I am prepared to accept that Mr. Schenkman's English language skills and familiarity with the federal government were not fully developed at the beginning of his career in the public service. However, this disadvantage was likely gone within the first few years of employment. It was certainly not a relevant consideration when he had his first discussions with Mr. Chan in 1996.

[79]    Mr. Schenkman received compensatory leave in May of 1996. Admittedly, it was not at the prescribed rate. However, Mr. Schenkman was being compensated for some of his overtime hours. Mr. Schenkman could have enquired about Mr. Chan's statements about entitlement for overtime at that point. Mr. Schenkman eventually learned from Ms. Tigno that he might be entitled to claim overtime, sometime in May of 1997. However, he did not file a grievance at that time. If I had accepted Mr. Schenkman's argument that being misled justified a failure to file a timely grievance, then this is the point at which the time limit should have started to run. Mr. Schenkman could have sought clarification of his rights at this point. However, he did not file a grievance until some five or six months later.

[80]    Since I have concluded that there are no clear, compelling or cogent reasons for the delay in filing of his grievance, I do not need to proceed to the balancing of the prejudice to the employer with the injustice to the grievor. However, it is worth noting that the prejudice to the employer is significant for a claim of overtime that goes back approximately 10 years. There was evidence that some of the relevant documents no longer exist. In addition, it is extremely difficult to reconstruct the events of over 10 years ago.

[81]    The length of the delay in filing a grievance has been referred to in some jurisprudence as being a separate factor for consideration. The length of the delay also relates to the prejudice to the employer. In this case, the delay in grieving was 15 years. This is an excessively long delay and far out of the ordinary for applications under section 63 of the P.S.S.R.B. Regulations and Rules of Procedure. Both bargaining agents and employers are entitled to some closure on disputes. There is a time to grieve and a time to move on.

[82]    Another factor relied on in the jurisprudence is the due diligence of the grievor in all the circumstances of the case (see Wilson (supra)). Mr. Schenkman did not check his collective agreement nor consult with a union representative to ascertain what his rights were. In addition, when Ms. Tigno alerted him to the fact that others were receiving overtime, he did not take the necessary steps to confirm his entitlement to overtime. In short, he did not exercise due diligence in a timely manner. A quick telephone call or a brief examination of his collective agreement would have given Mr. Schenkman the necessary information to file a grievance.

[83]    In Frève (supra), the Federal Court of Appeal stated that an applicable factor used by the adjudicator in assessing whether or not to grant an extension was whether or not the grievance had a serious chance of succeeding. There is some risk in accepting this statement as a broad principle. It is difficult to assess whether a grievance has a "serious" chance of succeeding without hearing all the evidence. A better characterization of this factor would be that the grievance has "no chance" of succeeding. If, on its face, the grievance is totally without merit, then this may be a factor to consider. In this case, I cannot say that the grievance would have no chance of success. However, for the reasons noted above, it is not appropriate to extend the time limits.

[84]    The Coallier decision (supra) was canvassed extensively by the parties. It is important to note that in Coallier, the grievor had not made an application to extend time limits under the Board's Regulations. The Regulations stipulate that the Board can extend time limits on such terms and conditions that it sees as advisable. To limit the scope to 25 days prior to the filing of the grievance would make the discretion of the Board under section 63 essentially meaningless. In my view, Coallier (supra) is not relevant to a determination of an application under section 63.

[85]    Counsel for the grievor made serious allegations of fraud in her argument. I can find no support for such allegations in the evidence before me. Providing incorrect information does not constitute fraud. Allegations of fraud should be used sparingly and with great caution in labour relations.

[86]    The remaining issue is the status of the 25-day period prior to the filing of the grievance. The evidence showed that no overtime was claimed for this period, although during the grievance process Department representatives offered to consider such a claim. Although he submitted a sheet of paper with hours worked, Mr. Schenkman did not submit a claim for overtime and the employer did not make a determination of whether the overtime was authorized. Since there was no denial of overtime for this period, Mr. Schenkman cannot grieve for this period.

[87]    In conclusion, I can find no clear, compelling or cogent reasons for exercising my discretion to extend the time limits, and the grievor's application under section 63 of the P.S.S.R.B. Regulations and Rules of Procedure is dismissed.

[88]    Accordingly, the grievance is dismissed for lack of jurisdiction.

Ian R. Mackenzie,
Board Member

OTTAWA, January 21, 2004.