FPSLREB Decisions

[1]    On the whole, the facts which gave rise to this grievance are not in dispute. Francis Camilleri, the grievor, was at the time of this hearing working for the British Columbia provincial government on one year's leave of absence from his substantive position as an AU-1 with the Canada Customs and Revenue Agency (CCRA).

[2]    The grievor was hired in January 1998 as a PM-2 and was promoted to an AU-1 position in September 1999. At the time of this promotion, the PM collective agreement was still being negotiated. Mr. Camilleri's salary on promotion to the AU category was therefore based on the PM salary grid as it stood in September 1999.

[3]    In August 2000, the grievor became aware that the PM collective agreement had been signed and that the PM pay rates had been modified retroactively. Following discussions with management, Mr. Camilleri was told that his pay rate on promotion to the AU group in September 1999 would not be recalculated to take into account the new retroactive PM pay scales.

[4]    An exchange of e-mails (Exhibits G-1, G-2 and G-13) in which the grievor expressed his displeasure and frustration ensued. David Gray, a steward for the Professional Institute of the Public Service of Canada (PIPSC), advised the grievor that "while I empathise with your situation there is nothing that we as a union can do to assist you except try and not let the same circumstance happen again" (Exhibit G-2).

[5]    Mr. Camilleri talked to his immediate supervisor at the time, Marion Van der Putten, who told him that filing a grievance would be a waste of time since he didn't have a case.

[6]    The grievor further testified that he believed that he had been told in 2000 that he would be disciplined for the aggressive tone of his original e-mail (Exhibit G-2) if he didn't drop his claim for a recalculation of his salary upon promotion. On this issue, however, Mr. Gray was never told of the existence of such a threat during any of his conversations with the grievor.

[7]    The matter lay dormant until early 2002 when the Buchmann and CCRA (2002 PSSRB 14) decision came out. Given the similarities between the Buchmann case and his situation, Mr. Camilleri decided to file a grievance in February 2002.

[8]    In August 2002, the CCRA issued a memorandum to Assistant Commissioners (Exhibit G-11), a compensation bulletin to Regional Directors of Human Resources and Compensation Managers (Exhibit G-12) and a Compensation Communiqué intended for all employees (Exhibit E-3). All documents deal with the interpretation and application of the Buchmann decision.

[9]    Exhibit E-3 reads:

SUBJECT: Implementation of the Buchmann adjudication decision

The purpose of this Communiqué is to inform you of the Agency's decision on the application of the Buchmann adjudication decision. This decision will impact only specific situations where employees have acted, transferred or been promoted during retroactive periods of the last collective agreement. It is important to note that although this will not result in pay changes for all employees, your local Compensation office will be undertaking a complete review of all pay files to identify all affected employees.

The adjudication decision relates to the fact that actions during retroactive periods have not been subject to recalculation, i.e. only the Lajoie decision "straight down" rule has been applied. CCRA has now authorized the application of the better of the two decisions - either Lajoie or Buchmann, retroactive to the expiry date of the previous collective agreements (see chart below for dates). If the recalculation results in a backward movement in the new salary range, the employee is accorded the straight down treatment; that is, the employee will always receive the most beneficial pay treatment.

The rates of pay resulting from promotions, transfers, or acting situations will be recalculated during the retroactive period. Compensation expects to complete the review of all employee accounts, and process any identified upward movements in the salary range resulting from recalculations no later than the end of March 2003, with cheques issued, as required payments are determined.

Note: The Executive Personnel Programs Directorate will be undertaking the same review and, as necessary, recalculation of SM/EX salaries.

The work involved in reviewing the approximately 6,200 pay files in this region is sizable, particularly in view of other priority workloads. We have identified approximately 13,500 actions that may require recalculation as a result of this decision. For those of you where this decision may have impact, your pay file will be reviewed, and where there is a positive pay impact, you will be issued a retroactive cheque by March 2003.

If you have a question, or concern, regarding a change that has occurred to your pay as a result of this decision, please direct it in writing to your Compensation and Benefits Consultant.

[10]    The employer's response at the final level to Mr. Camilleri's grievance told the grievor that his request was untimely and that in any event the employer's policy in the application of Buchmann was to deal only with the immediate past retroactive period which the grievor had missed. The reply which is on file reads:

I am replying to your grievance in which you request the recalculation of your rate of pay upon your promotion from PM-02 to AU-01 position on September 20, 1999. I have reviewed all the information available and considered the points raised by your Professional Institute of the Public Service of Canada (PIPSC) representative.

My review of the matter indicates that you accepted the offer to the AU-01 position on September 20, 1999 but you did not file a grievance until February 20, 2002. You have by far exceeded the time limits established in your collective agreement to submit a grievance. Your grievance is, therefore, considered untimely and on that basis, it must be denied.

Notwithstanding the above, I wish to inform you that the Agency decided to revise the manner in which promotions, transfers and acting appointments are handled during the retroactive period of collective agreements. This decision was taken to reflect the principles of the Buchmann adjudication decision and took effect - for all employees of the Agency - on January 31, 2002, the date the Buchmann decision was rendered by the Public Service Staff Relations Board (PSSRB).

I must inform you that the corrective measures that you requested cannot be granted.

[11]    The grievor acknowledged during his testimony that he had not been disciplined as a result of sending Exhibit G-2 and that he had filed pay-related grievances in May 1999 and December 2000 (Exhibits E-1 and E-2).

Arguments

For the grievor

[12]    The evidence clearly demonstrates that Mr. Camilleri was promoted during the retroactive period of a collective agreement. The question then is whether he is entitled to a recalculation of his salary on promotion pursuant to the principles stated in Buchmann (supra).

[13]    The fact situation in this case mirrors the facts in Buchmann except for the timing of their respective grievances.

[14]    Mr. Camilleri's delay in filing his grievance was due to a number of factors including his belief, whether founded or not, that he might be disciplined should he pursue his case.

[15]    The fact remains that the grievor raised his concerns with the employer in August 2000. Nothing in the Buchmann decision creates a barrier for the employer to go back in time and recalculate Mr. Camilleri's salary.

[16]    Although the Coallier case (Canada (National Film Board) v. Coallier, [1983] F.C.J. 813) limits remedy to 25 days prior to the filing of a grievance in pay-related matters, adjudicators of the Board have on many occasions since found ways to get around the limit. Issues of equity and estoppel may justify going beyond the 25-day limit.

[17]    In this case, the employer was well aware of the grievor's claim in August 2000. Mr. Camilleri acted quickly to file his grievance when the Buchmann decision came out and the grievor believed he should not file for fear of retaliation.

[18]    In support of his position, the grievor referred to Coallier and National Film Board (Board file 166-8-13465), Canada (National Film Board) v. Coallier, [1983] F.C.J. 813, Macri and Treasury Board (Board file 166-2-15319); Phillips and Treasury Board (Board file 166-2-20996), Butra and Treasury Board (Board file 166-2-22221), Public Service Alliance of Canada and Treasury Board (Board file 161-2-703) and Buchmann and Canada Customs and Revenue Agency (2002 PSSRB 14).

For the employer

[19]    The grievor is seeking a decision which would require the employer to recalculate the salary of all employees who were ever promoted during the retroactive period of a collective agreement.

[20]    This should not be allowed to happen. There must be a cut-off in cases such as this. By analogy, payments in pay equity cases only go back to the date of the complaint.

[21]    The grievor conveyed his concerns in August 2000. If he was unsatisfied with the employer's answer to his request for recalculation, the time to grieve was then. Mr. Camilleri is obviously familiar with the grievance process since he filed pay-related grievances in May 1999 and December 2000 (Exhibits E-1 and E-2).

[22]    The fact remains that the grievor sought advice from his union in August 2000 and did nothing else to protect his rights. His situation is identical to that of Mr. Buchmann except that he did not grieve. The employer does not believe that there were any impediments which could justify Mr. Camilleri's inaction.

[23]    With respect to the issue of "continuing grievance", the employer relies on a decision of arbitrator Getz in Re Province of British Columbia and British Columbia Nurses' Union, 5 L.A.C. (3d) 404, in which at page 414 he says:

Professor J.M. MacIntyre, who was at the time a vice-chairman of the Labour Relations Board, said in Re Government Employees Relations Bureau and Registered Psychiatric Nurses' Assoc. of B.C. and Registered Nurses' Assoc. of B.C., November 19, 1980 (L 193/80) [unreported] that "the distinction between the single event with recurrent effects, and the recurrent event is by no means simple". Having reviewed the authorities, I feel bound to say that to describe the distinction as understood by them as "by no means simple" is an understatement. While it is true that the authorities draw the distinction, one searches in vain for any exposition of the basis or principle upon which it rests, or any consistent test to determine on which side of the line any particular case falls, or even any consistent application of the various tests that have been suggested or adopted. The jurisprudence in this area is, to put it at its lowest, brangled, and it is difficult to resist the impression that it is a somewhat elaborate façade to conceal what is little more than an attempt to avoid some of the harsher consequences of non-compliance with time-limits. As Gorsky, Evidence and Procedure in Canadian Labour Arbitration (1981), at p. 34, puts it, the study of the jurisprudence is a fruitless search through a thicket of precedents. Happily, arbitration precedents are not binding. They are no more than sources of wisdom and, one hopes, reason and hence, at best, merely persuasive. While stare decisis is a wise rule of conduct, it is only wise to the extent that what has been decided is itself wise and sensible. In my view there is no discernible principle in the arbitral authorities on this subject, and I propose, accordingly, largely to ignore them. [page 415]

By far the best analysis of the problem is that of Professor Gorsky. He argues, and I agree with him, that it is important to bear in mind that what we are concerned with is an alleged breach of contract by the employer. In breach of contract actions at common law, time periods for limitation purposes begin to run from the date of breach of the promise made. The fact that the damage suffered by reason of that breach of promise continues to occur does not mean that a new breach occurs with each new loss. There is ordinarily only one breach. Contract law does recognize a form of breach that might be characterized, inaptly, as "continuing" -- that is the breach of several separate (albeit perhaps identical) promises over a period of time -- such as occurs in an installment sales contract where the buyer promises to make periodic payments. But that is a special case. As Gorsky put it (p. 35):

The appropriate rule for deciding the isolated or continuing nature of the grievance is the rule developed in contract law. The recurrence of damage will not make a grievance a continuing grievance. It is necessary that the party in breach violate a recurring duty. When a duty arises at intervals, and is breached each time, a "continuing" violation occurs, and the agreement's limitation period does not run until the final breach. When no regular duty exists and the harm merely continues or increases without any further breach, the grievance is isolated, and the period runs form the breach, irrespective of damage.

[24]    In Smith and Treasury Board (Board file 166-2-25960), which dealt with vacation leave entitlement and the grievor's failure to make a timely election, then Vice-Chairperson Tenace said at page 6 of his decision:

In my view, the employer's position is technically sound. The grievor knew he had a right to grieve, by his own admission, at the time he made his election on July 22, 1991. He simply forgot about it until he came across the Alliance Bulletin in the spring of 1993. The fault, if there was any, cannot be attributable to anything done by the employer. The grievor was also given incorrect advice by his union representative. Again, the employer is blameless.

The grievor's representative submitted that this was a continuing grievance, from the time the grievor first made his election. I do not agree. Pursuant to his collective agreement, the grievor had twenty-five days from the date on which he was notified orally or in writing or on which he first became aware of the action or circumstances giving rise to his grievance, in which to present a grievance. He did not do so.

[25]    Mr. Camilleri was aware of the grievance process and had access to union representation.

[26]    The employer has interpreted and applied the Buchmann decision in a fair way and should not therefore be penalized for the grievor's inaction. There has to be a cut-off date in these cases.

[27]    Should the employer's argument on the issue of "continuing grievance" not be accepted, then the grievor is only entitled to a retroactive period of 25 days prior to the filing of his grievance.

[28]    In support of its position, the employer also referred to Coallier (supra), Ouellette and Treasury Board (Board file 166-2-21255) and Sittig and Treasury Board (Board file 166-2-24117).

Reply of the grievor

[29]    Issues of equity must override the employer's arbitrary decision to impose unilaterally a cut-off date for the implementation of retroactive recalculations.

[30]    One should note that the B.C. case referred to by the employer precedes in time the decision of the Federal Court of Appeal in Coallier.

Reasons for decision

[31]    The Coallier decision, which deals with a pay-related issue, clearly sets out the principles which must govern my appreciation of the facts in this case.

[32]    Unless issues of estoppel, waiver or some other equitable considerations exist to justify deviation from the general rule set out in Coallier, a grievor will be entitled in cases such as this one, involving a pay-related question, to redress going back no more than 25 days prior to the filing of the grievance as stated in the relevant collective agreement.

[33]    No special considerations exist in this case that would convince me to go beyond the 25-day rule. Mr. Camilleri was well aware of his rights and certainly knew how to exercise them. I do not accept the grievor's story that he believed he would be disciplined if he pursued his grievance. Had that really been the case, he would certainly have discussed the issue with Mr. Gray. The fact is that Mr. Gray was asked during his testimony to relate his conversations with the grievor. The issue of a threat or perceived threat was not mentioned.

[34]    I disagree with the employer that I should use an old B.C. case and the words of Vice-Chairperson Tenace in Smith (supra) to conclude that I should not consider this matter a continuing one.

[35]    The Federal Court of Appeal in Coallier is clear, is more recent than the B.C. case referred to by the employer and has never been overturned. I should also point out that the Smith case is consistent with the principles enunciated in Coallier. Prior to the quote referred to earlier in paragraph 24 herein which was mentioned by the employer at the hearing, the Vice-Chairperson had written:

The issue to be determined is whether the grievor is entitled to have his vacation recalculated from July 22, 1991, the date on which he made his election, rather than November 24, 1992, the date of the Federal Court of Appeal decision in Boucher (supra). The difference is approximately sixteen months. It is also worth noting that the grievor did not file his grievance until November 30, 1993.

The employer has taken the position that it was under no obligation to go back further than twenty-five days before the grievor filed his grievance, based on the decision of the Federal Court of Appeal in the Queen (National Film Board) v. Coallier (supra).

[36]    Mr. Camilleri was well aware of his situation in August 2000. He could have, like Mr. Buchmann and others, grieved at that time. He did not. His inaction will cost him approximately two years of retroactive payments. Mr. Camilleri is not, however, completely without remedy. Based on Coallier (supra), the grievor is entitled to the redress sought going back 25 days prior to the filing of his grievance.

[37]    The grievance is therefore allowed in part. I will remain seized of this matter for a period of 60 days, should the parties have difficulty in the implementation of this decision.

Yvon Tarte,
Chairperson

OTTAWA, October 7, 2003.