HomeMy WebLinkAboutP-2012-1193.Drakos et al.13-12-18 Decision
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P-2012-1193, P-2012-1196,
P-2012-1517, P-2012-1518
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Mark Drakos, Jim Allen, Stephen Jurkus and James Taylor
Complainants
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services)
Employer
BEFORE Kathleen G. O’Neil Vice-Chair
FOR THE
COMPLAINANTS
Mark Drakos, Jim Allen, Stephen Jurkus and
James Taylor, Complainants
FOR THE EMPLOYER Jennifer Richards
Ministry of Government Services
Legal Services Branch
Counsel
HEARING June 17, 2013
Public Service
Grievance Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission des
griefs de la fonction
publique
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
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Decision
[1] This decision deals with the complaint of a group of Operational Managers (OM’s)
at the Elgin Middlesex Detention Centre (EMDC) contending that they have been
demoted or constructively dismissed, or degraded contrary to the Statement of
Ethical Principles, as a result of a unilateral employer initiative which changed their
rank titles from Lieutenant to Sergeant. The employer says that there has been no
breach of the complainants’ terms and conditions of employment, urging the Board
to dismiss the complaint.
[2] There was no objection to the Board’s jurisdiction to hear and determine this dispute.
How this dispute arose – factual context
[3] This dispute follows in the wake of the Ministry’s initiative in 2011 and 2012 to
introduce an official rank system within the Ministry’s institutional services. As part
of this initiative, the ranks Captain and Lieutenant were eliminated. The title
Lieutenant had often been used to refer to the complainants and other OM16’s at
EMDC, and they claim a return to that status. Their classification remains OM16,
but it is now required as a matter of policy that they wear a uniform with epaulettes
with three chevrons denoting the rank of Sergeant, rather than their former epaulettes
with two bars, indicative of the rank of Lieutenant or Captain.
[4] This initiative was introduced in a memorandum to Correctional Services employees
on June 17, 2011 by then Deputy Minister Jay Hope. He wrote that while attending
some awards ceremonies in the community, he had had occasion to think about how
Correctional Services were viewed compared to its justice sector partners in Ontario.
He found the references to correctional service employees at those ceremonies too
generic, and spoke of changing that so that Correctional Services would be viewed
as what it was - a professional, integral and unique part of the justice system, and
that a step in that direction would be to assign ranks to designated managerial
positions in Institutional Services (IS), specific to institutions, and not to be used
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elsewhere in Correctional Services. Mr. Hope wrote that the rank system was
intended to:
- Strengthen the professional image and identity of Correctional Services;
- Apply language that is easily recognized by members of the public and
well-respected by everyone;
- Add clarity to the definition of roles, responsibilities and expectations
associated with certain positions; and
- Ensure consistency in the use of ranks across provincial correctional
institutions.
Further, although the initial memo does not refer to the term Sergeant, it explains the
elimination of the terms Captain and Lieutenant as follows:
Moreover, our rank equivalency system aligns the identity of IS staff to
those in the justice sector - with whom we work most closely – the
police, and these ranks are ones with which the community are most
familiar. This system contrasts with other rank models, such as the
military, which we have used sporadically in the past; therefore, we shall
now eliminate the use of the ranks Captain and Lieutenant.
[5] Deputy Minister Hope’s 2011 memo also stated that the rank system would not
result in the change of anyone’s current position, classification, accountabilities,
remuneration and/or other terms and conditions of employment.
[6] On March 22, 2012, a memo from Deputy Minister Hope went out to Institutional
Services Staff, identifying Sergeant as the new rank for Operational Managers. It
also identified the rank of Staff Sergeant for a position to be known as Assistant to
the Deputy Superintendent, which has since been abandoned.
[7] The complainants, who took pride in their status as Lieutenants, took the change to
Sergeant as a demotion. They argue that it amounts as well to constructive dismissal
and a breach of the Ministry’s Statement of Ethical Principles, which requires all
levels of staff to respect their colleagues, treat them fairly and equitably and to
refrain from behaviour which degrades them. They see this unilateral employer
action as literal degradation, as it bumped them down from the rank of Lieutenant to
that of Sergeant. Although all the complainants work at EMDC, they made clear that
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other OM’s are concerned, and take the matter seriously, as evidenced by the fact
that a group of OM’s from Maplehurst Detention Centre attended the hearing.
[8] The Ministry’s position is that what was involved here was an implementation of a
new policy to revise rank insignia, effective May 8, 2012, not a demotion or a
constructive dismissal. It was part of a larger initiative, a thrust known as
“commitment to professionalism”, which was intended to accomplish the objectives
set out in Mr. Hope’s memo. The policy which later incorporated those objectives
articulates that the unique rank and insignia system applies only to institutions, and
in that context defines Sergeant as “Operational Manager (OM16)”. The policy
makes the wearing of sergeant’s epaulettes mandatory, but leaves to the discretion of
staff the “context in which it will be most appropriate or helpful to refer to the
position title and/or to rank.” As originally conceived, this was a multi-tiered
management rank structure, starting at the OM-16 level and continuing upward to
the level of superintendent. At the time of the hearing of this matter, the initiative
had only been applied to the OM-16 classification, and future plans for the rest of the
initiative were unclear.
[9] The employer acknowledges that prior to the implementation of the new rank
system, the title of Lieutenant was used to refer to OM-16’s in documents, such as
occurrence reports and communications to staff, in some institutions throughout the
province, including EMDC. Nonetheless, the employer maintains that the term was
used erratically and unofficially as the term Lieutenant was not prescribed in any
Employer policy, and in some institutions OM16’s were referred to as Captains. The
employer emphasizes that the title Sergeant is now used officially and consistently
throughout the province, in accordance with the new rank system for management
staff within Institutional Services.
[10] The evidence referred to some of the history of the use of rank titles in correctional
facilities as context for the current dispute. From the 1800’s to the 1950’s, when
correctional facilities were not under centralized provincial control, ranks reflecting
a paramilitary structure, such as corporal, sergeant and captain were in use. In 1968,
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the Ministry of Correctional services was established, at which point the province
took over full control of county and some city jails. Since its inception, the Ministry
provided more centralized human resources and institutional direction, including the
public service classification system. When the positions in correctional institutions
were classified under the provincial system, a number of ranks of correctional
officers as well as the Operational Manager classification levels of OM-14 and OM-
16 were created. The evidence indicated that at that point of time, terminology which
came from the British military system was in use. This included the use of the term
corporal for the ranks of what are now correctional officers, as well as the terms
sergeant, captain (for districts), and lieutenant (for counties), for what are now
Operational Managers. In 1996, as a part of a “delayering” process, the rank of
sergeant and the classification of OM-14 were phased out, leaving OM-16 as the
starting classification for managers.
[11] As the complainants noted in their submissions, the upgrading of the OM-14 rank
with the title of Sergeant to that of OM-16 with the frequent use of Lieutenant, was
recognized in the decision of a Board of Inquiry under the Ontario Human Rights
Code chaired by H. A. Hubbard in the decision McKinnon v. Ontario (Ministry of
Correctional Services, dated April 28, 1998, indexed as [1998] OHRBID 10, at
paragraphs 318 and 325. The complainants also see this as recognition of the pre-
existing ranking system.
[12] The employer’s evidence emphasized that the change to provincial control of
correctional institutions in the 1960’s was accompanied by a move toward a more
civilian organization. Military rank names were partially discontinued; correctional
officers were called custodial officers and wore more civilian style uniforms. It is
the employer’s contention that, despite the change of institutional management in the
1960’s, staff continued to use references to their former ranks of supervision so that
the use of terms such as Lieutenant was an unofficial hangover from the previous
system. The evidence indicated that the title Captain was used in larger institutions,
while smaller institutions tended to use the term Lieutenant to refer to OM’s. The
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employer maintains that despite a lot of evolution within the ministry, since then, the
rank system itself was never formally reintroduced until the change which is the
subject of this dispute.
[13] Nonetheless, and central to the complainant’s view of the matter, the evidence is
clear that issuance of epaulettes with two bars, which was understood in the
institutions to refer to the ranks of Lieutenant or Captain, continued up until the
change to Sergeant. The complainants’ evidence indicated that Captain and
Lieutenant are considered equivalent ranks, as they are between the naval and army
branches of the armed forces. As noted above, after the change to Sergeant, the
Operational Managers were issued epaulettes with three chevrons, which indicate a
lesser rank in all the rank systems of which there was evidence.
[14] Ana Fernandes was the person charged with implementing the decision here in issue,
and the employer’s witness. Ms. Fernandes testified that former Deputy Minister Jay
Hope, who initiated the change here in issue, came from the provincial policing
services, and understood consistency and the need for a good visible identifier to
lend itself to the inception of a new rank system for Ontario correctional institutions.
She said that he had noticed that there was not a consistent rank and insignia system
in institutional services. Further, the title Lieutenant was not considered correct, as
the classification name was Operational Manager, and, in the employer’s view, there
was no formal rank system. She understood Mr. Hope’s intent was to professionalize
the service by creating a unique rank system with new epaulettes, blazers and change
of name to Ontario Correctional Services, intended as a unique identifier instead of
the term Ministry of Community and Correctional Services. Ms. Fernandes testified
that the new rank system was not meant to mirror or reflect a specific rank system in
any particular military or law enforcement service.
[15] As part of her work on the implementation of the decision to change the Operational
Managers’ rank to sergeant, in preparation for designing the insignia for new
uniforms, Ms. Fernandes did what she called a jurisdictional scan of all Canadian
correctional and some policing agencies, as well as looking at the British and
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Canadian military rank systems. She found no consistency; every service had its own
unique rank system. Ms. Fernandes’ research included conversations with a historian
knowledgeable about corrections. She formed the impression that the sergeant rank
historically meant someone in charge of a platoon or a shift, but she acknowledged
the title could mean different things in different organizations. After the above
research, some consultation was done as to the design of the epaulettes, and some
changes were made to the design.
[16] On April 4, 2012 a memo went out to all Superintendents giving instructions about
ordering the new epaulettes by April 15, 2012, and requiring the names of all
Sergeants to go with it. The policy establishing the new rank and insignia system
including defining Sergeant as meaning OM-16’s is dated May 8, 2012.
[17] About a month later, on June 5, 2012, Ms. Fernandes made a presentation about the
rank structure and uniforms, including new blazers, to a committee known as the
Operational Manager Standing Committee. This committee is made up of members
from the ranks of Operational Managers and upper management. She received a
positive reaction from some in attendance, although she acknowledged there were
issues about insignia. Minutes dated November 28, 2012 of what appears to be the
next meeting of that committee indicate that the Assistant Deputy Minister had asked
the Co-Chair “to engage the field for comments and suggestions on the new rank of
sergeant.” The result is recorded as a trickle of mixed feedback which the minutes
state was not significant enough to support any change to the new sergeant rank. The
evidence is silent on how or from whom this trickle of feedback was obtained, and
thus I have no evidence as to what proportion of the Operational Managers were
asked about this or in what circumstances. In any event, the employer’s witness
made clear that the decision to change the title to Sergeant had already been made,
and was not up for discussion in the consultations or debriefings of which she was
part.
[18] Mr. Allen testified that the Operational Managers on the OM Standing Committee
were appointed rather than elected members. The complainants note that at the time
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of the meetings in 2012 there was no representation from their institution on that
committee, and they were not consulted themselves. For the November 28 meeting,
they sent a petition from all the OM’s at EMDC to the committee listing issues
including “Demotion to the rank of Sergeant”, and raising questions about many
issues regarding operations in the institutions and their terms and conditions of
employment. These included, among others, lack of pay for performance, bonuses,
wage compression, demotion and lack of concern for the needs of the Operational
Managers
[19] The complainants testified as to the impact of the change in rank on them personally,
and reactions by others in the community and workplace. Mark Drakos testified that
the change had resulted in shame and disgrace in the law enforcement community
and when he visits schools and other sites. He considered it a form of abuse with a
very large impact.
[20] Stephen Jurkus, another one of the complainants, testified that as a Correctional
Officer (CO), he was promoted from corporal to sergeant, with the pay increase that
went with it. He then became an acting lieutenant. Since that time, until the recent
change, inmates and staff called him Lieutenant. Since the recent change to
Sergeant, he has been subjected to ridicule and jest due to the change of rank. He
said that, even though his rate of pay has not changed, the behaviour of other staff
shows that it amounted to a downgrading. Staff members accentuate the term
sergeant when speaking, and highlight it through paperwork and in the company of
their peers. He said that the Operational Managers are without recourse in regards to
these attacks on their position, and slight on their reputation, which has lead to a
negative working environment. He views Mr. Hope’s rank initiative as a gesture of
disrespect to the Operational Managers by the departing Deputy Minister.
[21] James Taylor was shocked to be told he was not a Lieutenant although he had been
one for most of his career, and said that the change made him feel horrible beyond
words. He emphasized that the difference between Lieutenant and Sergeant means
the difference between being in the officers’ ranks or not. Officers in hierarchical
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institutions denote those licensed to take authority, in his view, so that officers’ titles
are appropriate to the Operational Managers because they have the authority to take
control of the operation of the institution when the Superintendent is not there. The
change in rank left him feeling very disappointed with his leaders, and he has felt
totally unsupported by his superiors in his struggle to prove his point. He wondered
if the downgrading was intended to justify the less generous compensation policy
towards the OM’s, in comparison with the CO’s, which he said had occurred since
the change in title. He has been subject to comments in the workplace which
demonstrate to him that nothing was added to professionalism by the change; the
contrary happened. These include remarks from a senior administrator, “You finally
got busted down to Sergeant”, and from a correctional officer in a meeting, “It
doesn’t matter; you’re only a CO now.” The latter remark is presumably a reference
to the view that the title Sergeant is more appropriate to a bargaining unit
correctional officer than a managerial rank. As well, photographic evidence was
presented of derogatory graffiti found on the door of the Operational Managers’
lounge referring to the “Sergeant’s Mess”.
[22] James Allen testified that during his career in the Ministry, he was promoted to
Sergeant and then, after moving twice at the request of the employer, became a
Lieutenant. He described it as unbelievable to be moved back to Sergeant, and said
he shared the sentiments of the other complainants.
[23] The positions of the parties will be elaborated further in discussing the issues below.
Excerpts from applicable policy
[24] The following excerpts from policy are relevant to the parties’ arguments:
From the Public Service Commission Directives Employment Policy:
Appendix B – Terms and Definitions …
Demotion: Assignment to a position in a classification with a lower maximum
salary as set out in the Pay on Assignment Operating Policy or the Senior
Management Group Compensation Program.
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From the Institutional Services Policy and Procedures Manual, dated May 8, 2012:
Rank and Insignia
1.0 Purpose
This policy establishes guidelines for a rank and insignia system that has been
designed to support the effective and efficient management of operational
requirements, specific to institutional Services.
…
4.0 Definitions
Sergeant: Operational Manager (OM16)
…
6.2 Rank
6.2.1 Institutional Services’ position and rank structure is as follows:
a. Sergeant (Sgt): title/classification of operational manager 0M16
b. Staff Sergeant (S/Sgt): title/classification of assistant to the deputy
superintendent CCL17
6.2.2 Rank is associated with a position and not an individual.
6.2.3 Rank is not to be transferred with a person once classification changes.
6.2.4 If a classification has a specific rank, staff are to adopt the rank of
that position, regardless of status (permanent vs. temporary
assignment).
6.2.5 Rank is to be linked with a position - no matter the size of the
institution (i.e. sergeant from one institution is transferred to another,
then he/she will maintain this same rank no matter the size of the
institution).
6.2.6 Staff whose positions are assigned a rank are to use their discretion
for the context in which it will be most appropriate or helpful to refer
to the position title and/or to rank.
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From the Statement of Ethical Principles:
Preamble
The broad principles set out in the Statement are intended to guide staff at
all levels of the organization in their actions and decisions…These
principles will help ensure the fair and equitable treatment of all
employees.
As employees we will: …
- Fulfil our duties in a diligent, capable and courteous manner.
- fulfil our responsibility to colleagues by fostering and maintaining
working relationships based on mutual respect, dignity and cooperation.
- contribute to sustaining an environment which is fair, equitable and free
from all forms of discrimination and harassment…
- respect the importance of all professions within the criminal justice
system and work to improve cooperation with each component.
The list of nine ethical principles is accompanied by additional interpretation and
direction such as that under no circumstances shall any person be subject to
degrading treatment, employees are to act with honest and courtesy in the conduct
of professional duties, that each member of staff will contribute to a cooperative
and productive working environment and respect the dignity of fellow employees
in dealing with one another with the aim of creating a climate of understanding
and mutual respect.
Considerations and Conclusions
[25] The above facts and arguments raise the following issues, which will be addressed in
turn:
a) Were the complainants demoted?
b) Were the complainants constructively dismissed?
c) Was the change done in a manner that breached the Statement of
Ethical Principles?
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a) Were the complainants demoted?
[26] The employer argues that the complainants were not demoted in fact, as there has
been no change in assignment, classification, pay, responsibilities or duties. Further,
the applicable personnel policy, one of the policies that form part of the
complainants’ terms and conditions of employment, contains the definition of
demotion, set out above, which ties the term to an assignment to a classification with
a lower maximum salary. There has been no change in the assignment of the
complainants in terms of classification, which remains OM16, with the same
maximum salary, which was unaffected by the change in rank title. Accordingly, it
is very clear that if one uses the definition in the applicable policy, the fact that the
maximum salary of the current classification is not lower than before is a complete
answer to the suggestion that there has been a demotion.
[27] The complainants rely instead on the common law, and on a dictionary definition of
the word demotion, i.e “to reduce in grade, rank or status”, or “to relegate to a less
important position”, as well as the synonyms found in a thesaurus: “break, bust,
degrade, downgrade, reduce”, illustrated there by examples such as “demoted from
captain to lieutenant, a non-commissioned officer broken to the ranks”.
[28] The complainants each testified persuasively of their personal experience of the
change. Their uncontradicted testimony is to the effect that they feel that they have
been relegated to less important positions, as they were downgraded to sergeant from
lieutenant, very visibly to co-workers and the public because of the change in
epaulettes.
[29] There is no doubt that the complainants sincerely feel they were demoted, and that in
the rank systems that the complainants are familiar with or have worked under, both
in Corrections and/or in the armed forces, a reduction from the rank of Lieutenant to
Sergeant would be a very serious thing indeed. For instance, Mr. Taylor has served
in the Navy, where achieving the rank of Lieutenant meant entry into the ranks of
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officers, with the many privileges and responsibilities that came with that. In
military life, being reduced from Lieutenant to Sergeant meant having one’s status as
an officer removed. Such an event would often be a punishment, and there would be
no debate about whether it was a demotion or degradation. The evidence makes clear
that Ontario correctional institutions have been paramilitary organizations for much
of their history, and that despite some intermittent efforts to change that, the
concepts of rank and chain of command remain very much part of the workplace
culture.
[30] In argument, counsel for the employer referred to Hedges v. CAW- Canada, (1996)
145 Nfld. & P.E.I.R. 189, a decision of the Prince Edward Island Supreme Court, in
which the Court found that where there was a change to the paper title of a person’s
job, but no major change in job duties, a demotion had not occurred in law. In a
different context, arbitrators have also found that a change in title without a change
in duties cannot bring about a change in status sufficient to exclude a position from a
bargaining unit. See, for example, Health Labour Relations Assn (Cancer Control
Agency of B.C.) and British Columbia Nurses' Union, (1988) 3 L.A.C. (4th) 35
(British Columbia – Hope).
[31] The complainants did not refer the Board to any decisions where a demotion was
found to exist in law when the actual duties, pay, and scope of responsibility had not
changed at all. However, they referred to an article from the law firm Gardiner
Roberts, entitled Promoting, Demoting and Lateral Employee Changes: Successfully
Avoiding Legal Pitfalls and Morale Erosion. This article mentions assignment to a
position that is clearly an inferior one as an exception to the general rule that, so long
as there is no reduction in total remuneration, it is unlikely that a job change will be
considered a demotion. The article states that even if a change is not objectively a
demotion, it can be considered one. In the complainants’ view, being a sergeant is
clearly an inferior position to that of a lieutenant, actually accompanied by a loss of
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status and prestige in the public eye and workplace, both mentioned as indicators of
a demotion in the article.
[32] The question becomes whether there is a sufficient legal basis for the Board to find
that the complainants have been demoted. A large part of the problem, of course, is
that the changes in the titles in the reported case law such as between Supervisor and
Inspector in the Hedges case or Head Nurse and Unit Manager in the Cancer Control
case, both cited above, did not carry the sting of the historical meaning of
degradation in rank both inside the Ministry, in the military and in other law
enforcement agencies. Nonetheless, the accepted law on demotion, referred to
above, requires an approach which concentrates on the objective established terms
and conditions of employment related to compensation and scope of responsibility,
rather than changes in title or uniform or individual reactions to the change. In this
regard, the fact that there have been no changes to compensation, responsibilities or
job description persuades me that there is not a sufficient basis to find that the
complainants have been demoted in the sense meant by employment law.
b) Were the complainants constructively dismissed?
[33] Counsel for the employer argued that the test for constructive dismissal is a high
one, which has not been met in this case. It takes a unilateral, fundamental change to
a job, the type of modification objectively viewed as an alteration of an essential
term of the employment contract. A change in title alone is not sufficient, in the
employer’s view, despite the complainants’ individual reactions to the change, which
is not what determines the issue legally. Counsel acknowledged that she could not
dispute what the complainants felt, but that from an objective point of view, no
essential term or condition of employment had been changed. Where the salaries
and responsibilities remain the same and the employer has made clear in the initial
memo introducing the change, and throughout this hearing, that it had no intention of
altering the terms and conditions of any Operational Manager’s employment, the
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complainants have not established sufficient grounds for a finding of constructive
dismissal, in the employer’s view.
[34] Employer counsel argues that the case law makes it clear that compensation, status,
profile, prestige and role itself must objectively change to properly establish
constructive dismissal. Counsel referred to the decision in Farber v. Royal Trust Co.,
[1997] 1 S.C.R. 846 by way of contrast with the complainants’ situation. In that
case, the plaintiff had lost status and prestige, when more than half of his
responsibilities were removed, and he was assigned to a job he had held eight years
earlier with greatly reduced responsibilities. At the time of his constructive
dismissal, it also appeared reasonable that the plaintiff’s remuneration would be
substantially less. To similar effect, is the decision in Ally v. Institute of Chartered
Accountants of Ontario, (1992) 42 C. C.E.L. 118, also relied upon by employer
counsel. As noted above, although there is not a cut in pay in the facts of this case,
the complainants argue that there was a significant loss of prestige and status.
[35] The case law recognizes that the employer retains the right to make changes to the
terms and conditions of employment without bringing the contract to an end, unless
they are so fundamental as to demonstrate an intention to treat the contract as at an
end. In cases such as the Hedges decision cited above, and cases referred to therein,
Canadian courts have recognized that as long as changes are not so fundamental that
the terms and conditions of employment can no longer be said to be the ones under
which the employee agreed to work, they will not be considered constructive
dismissal. The Court there found that constructive dismissal had not occurred in
circumstances where the position was substantially the same as the one the employee
had been hired to do.
[36] If one asks whether the Operational Managers are working in substantially the same
positions as before the change to their titles, the answer must be yes. What has
changed is their uniform epaulettes and their rank title, without any change in the
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responsibilities, duties or pay that would go with a fundamental change. The
complainants see the change as having brought a negative change in status in the
eyes of the community and other members of the corrections community, as
evidenced by experiences they have had in the community, and the derogatory
graffiti found on the door of the Operational Managers’ lounge. While the unknown
author of the graffiti certainly insulted the complainants, these actions are not
sufficient in law to amount to constructive dismissal. It is important to emphasize
that constructive dismissal can end the employment relationship because it is
considered that objectively one side has repudiated the basic elements of the
contract. In my view of the established law on the subject, it would take a much
more egregious set of circumstances for the misbehaviour of third parties such as the
authors of the graffiti to invalidate an employment contract so that the Operational
Managers could be considered to have been dismissed from their jobs.
[37] There is also case law that suggests that where the environment has become so
generally hostile that an employee’s continued employment is not viable, an
employment contract can be seen to have been repudiated. See, for instance, Shah v.
Xerox, [1989] O.J. No. 4349, 49 C.C.E. L. (2d) 30 (Ontario Court of Justice),
approved on appeal - 49 C.C.E. L. (2d) 166, 2000 CanLII 2317 (ON CA) (Ontario
Court of Appeal). The Court ordered damages for constructive dismissal in that case
on the basis that the employer had treated an employee in such a manner that his
continued employment was intolerable, and in doing so, demonstrated that it no
longer intended to be bound by the employment contract. Although the
uncontradicted evidence is that the complainants have been subjected to disrespect
as a result of the change in rank, there is no evidence of the kind of extensive hostile
environment generated by the employer that would justify a finding that the
complainants had been constructively dismissed in a manner similar to the decision
in Shah v. Xerox.
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[38] In the end, the conclusion as to constructive dismissal must be the same as that for
demotion made just above. Although there is no doubt that the Operational
Managers lost status and prestige in their own eyes and that of some of their co-
workers, I do not find that the change was so fundamental that it can be found to
amount to constructive dismissal in the eyes of the law.
[39] Nonetheless, an employer is not permitted to make changes that are prohibited by the
contract of employment. For these complainants, because of this statutory grievance
procedure, a breach of that kind can be addressed as a distinct claim of a breach of
the terms of the contract of employment, rather than a breach so fundamental that the
contract is considered legally to be at an end. That is the remaining question:
whether there was a breach of any specific term or condition of employment of a
nature less fundamental than the kind which would justify a finding of constructive
dismissal, to which we now turn.
c) Was the change done in a manner that breached the Statement of Ethical Principles?
[40] The complainants have not suggested any term or condition of employment that
speaks directly to changes in rank or uniform. For its part, the employer attempted
to describe the change as not involving a change to any term or condition of
employment, in that it was the employer’s position that there was no rank system
before the change. In this context, as noted above, the employer sees the use of the
terms Lieutenant and Captain as informal holdovers from an outdated system. That
submission would have considerably more force if lieutenants’ stripes had not been a
part of the Operational Managers’ mandatory uniform up until the introduction of the
new sergeants’ epaulettes. The former uniform may not have been supported by a
written policy of the type produced to introduce the sergeants’ epaulettes.
Nonetheless, it appears obvious that some central policy decision would be
necessary to require that the uniform with two-barred epaulettes be worn for many
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years by all its institutional Operational Managers. As well, as the complainants
note, Mr. Hope’s original memo introducing the change recognizes the previous rank
very clearly, when he wrote that the ranks of Lieutenant and Captain would be
eliminated in order to align with police ranks.
[41] Thus, I find that it was a term and condition of the complainants’ employment that
they wear lieutenants’ stripes, and that there was a change to that with the
introduction of the new rank of sergeant with the uniform changes that went with it.
However, I was referred to no specific term or condition of the complainants’
employment prohibiting such a change.
[42] The complainants look instead to the overarching Statement of Ethical Principles,
which binds all levels in the Ministry, including senior management, as a term and
condition of employment which was breached by the employer’s actions in reducing
their rank from Lieutenant to Sergeant. The employer did not suggest that the
Statement of Ethical Principles was anything other than a term or condition of the
complainants’ employment. In essence the complainants are arguing that the action
was both literally and figuratively degrading. Their grade or rank was reduced, and
they were embarrassed and subject to degrading comments and graffiti as a result.
As well, the complainants see the change as an invitation to the disrespect that they
experienced as a result, and thus a violation of the provisions of the statement of
ethical principles which focus on a requirement to contribute to a cooperative and
productive working environment. They have been given no reason for the change
except a perceived problem in consistency of title for Operational Managers in
correctional institutions. There remains no explanation about how and why the
choice was made to achieve consistency by reducing their rank rather than ensuring
consistency at the previous level, which would have had the advantage of not
requiring the expense of a uniform change. In these circumstances, they see the
change as without a reasonable foundation or valid purpose. This amounts in law to
an argument that the change was arbitrary.
20
[43] The Board’s jurisprudence has long recognized its jurisdiction to deal with
allegations that treatment by the employer is arbitrary, discriminatory or in bad faith,
or a breach of policy such as the Statement of Ethical Principles. See for instance
Chyczij v. Ontario (Ministry of Labour), 2006 CanLII 26472 (ON PSGB), and the
older cases cited therein, such as Kanga and Ministry of Health, P0003/85 and
Bertholo and Tighe and the Crown in Right of Ontraio (Ministry of the Solicitor
General & Correctional Services), P/0008/95 and P/0009/95, as well, as the text
Ontario Public Service Employment and Labour Law, by Hadwen, et. al. (Irwin
Law, 2005) at pg. 675. An employer may be found to have acted arbitrarily where
the action taken is unreasonable or unsupported by a valid business purpose.
[44] As noted above, the employer argues that there has been no breach of the
complainants’ terms and conditions of employment – that all that has happened is a
permissible change of paper title and uniform. In respect of the complainants’
argument in terms of the Statement of Ethical Principles and arbitrariness, the
employer argues that there was no intention to degrade the complainants, and that
the purposes set out in the policy are not in any way a breach of the Statement of
Ethical principles. Rather, they were part of a broader initiative to enhance
professionalism in the institutions, essentially an argument that there was a valid
business purpose to the change.
[45] The valid business purpose goals identified in the policy which made the change
official in May 2012 were: strengthening the professional image and identity of
Correctional Services, applying language that is easily recognized by members of the
public, adding clarity to the definition of roles, responsibilities and expectations
associated with certain positions and ensuring consistency in the use of ranks across
provincial correctional institutions. Of these, the evidence before me only
demonstrated the achievement of consistency. The uncontradicted evidence of the
complainants was that their professional image and identity had not only not been
21
strengthened, but the change was personally demoralizing in the extreme and lead to
incidents of disrespect from others. The complainants were unaware of any problem
with the recognition of the ranks of Lieutenant or Captain prior to the change, the
visible identifier of which was the two-barred epaulette which was consistent
throughout the province. Their evidence indicated that the change that was noted by
others was the wearing of a uniform that would indicate to anyone familiar with rank
systems that the Operational Managers had been assigned a lower rank than before.
There is no evidence of any attempt to communicate to the public or partners in the
law enforcement community that their rank remained at a level equivalent to the one
before the change. Indeed, there was no evidence of any attempt to explain this to
the Operational Managers beyond the statement that there would be no change to
their classification or responsibilities. There was no evidence to support a finding
that the title Sergeant was more understandable to the community or justice partners
than Lieutenant or Captain or that these terms had become less appropriate for some
other reason in the time since the title Sergeant was eliminated as a title for
management positions in the late 1990’s. Nor was there evidence to indicate that
there was any problem as to clarity in terms of the definition of the roles,
responsibilities and expectations of the Operational Managers’ positions before the
change, or that the change enhanced clarity in any way in this regard. Rather, all the
evidence is that the employer neither intended nor made any change in these areas.
[46] As noted above, Mr. Hope’s original memo spoke of the circumstances in which the
idea to change the rank system arose and the goal of aligning the corrections rank
system with police services. Other evidence made clear that Sergeant is not a
management rank in the provincial policing system, which made it a problematic and
confusing choice in the view of the complainants. In any event, the rationale of
alignment with police force rank systems apparently did not last. Rather, by the time
the initiative was at the implementation stage, according to the employer’s witness,
there was no intention to align with the rank system of any other organization, as the
system was intended to be unique to correctional institutions. Beyond this, other than
22
the policy objectives referred to above, there is no evidence before me of the
rationale for the decision to change the rank to Sergeant. In this regard, the only
rationale offered which is consistent with the choice of Sergeant as the paper title,
the alignment with police ranks, was no longer part of the picture by the time the
matter was enshrined in policy, according to the evidence before me. The rationale
for eliminating Captain and Lieutenant was, at the time of the memo in 2011, the
elimination of military terms, but the other evidence makes clear that Sergeant is a
military title as well, so that to the extent the goal was eliminating military terms, it
was not achieved. More generally, there is no evidence of whether there were
decision makers other than Mr. Hope, or of what was actually taken into account
before the final decision was made.
[47] The complainants do not allege bad faith, in the sense of pretending to do one thing
while intending to do another. They do allege discrimination in the sense of being
singled out for a reduction in rank in a manner that is a violation of the ethical
principles required to be respected by all members of the public service, and
arbitrariness in the sense of having an unreasonable change thrust upon them. The
case law on arbitrary decisions is very fact-specific, and I was not referred to any
case with facts close to these. However, the themes are clear in the case law, as
noted above, and can be applied to these facts.
[48] Even without the provisions of the ethical principles relating to fair and equitable,
non-degrading treatment, the employer’s discretion to change the complainants’
uniform would be subject to review for arbitrariness, which the jurisprudence
establishes requires the consideration of relevant considerations and the exclusion of
irrelevant ones. See for example, Simcoe County District School Board and
O.P.S.E.U., Loc. 330 (Griffith) (Re), (2002) 103 L.A.C. (4th) 309 (Davie).
[49] Having considered all of the submissions and evidence, I find that the complainants
have made out their case in regards to elements of the Statement of Ethical
23
Principles. Their uncontradicted evidence is that good working relationships and
courtesy in conduct of professional duties was not promoted by the change and that
quite apart from the literal degrading in rank, the result of the change in ranks was
that they were subjected to degrading treatment in the workplace and problematic
reactions outside of it. If this was to be found to be nonetheless a permissible
exercise of management’s right to control the workplace, an explanation from the
employer to explain how it was a reasonable, non-arbitrary approach, despite its
actual impact on the Operational Managers, was called for. The employer’s only
witness had not been involved with, or consulted on, the decision to use the title
Sergeant rather than other options, and thus, despite her very straightforward
testimony on her role in implementing the decision, was not in a position to explain
the rationale for the disputed decision.
[50] Taking account of important relevant considerations is an important aspect of a
defence to allegations of arbitrary treatment. The likely impact on the Operational
Managers, the only group thus far affected by the change in policy, and the only one
slated for a change in rank downward, was surely high on the list of relevant
considerations for such a decision. Unfortunately, there is no evidence that such
impact was considered before the decision was made. There was reference in the
evidence to consultation with the committee of Operational Managers. However, the
only evidence of this was in regards to two meetings, in June and November, 2012.
These were well after the initiative was announced in 2011, and months after the
memo in March 2012 designating the Operational Managers as sergeants, the
ordering of the sergeants’ epaulettes in April 2012, and the supporting policy made
effective May 2012, and thus are not evidence of what went into the decision here in
issue. It is certainly insufficient to indicate any agreement to the change in rank by
the complainants or any other Operational Manager.
[51] I accept the complainants’ argument that there has been no satisfactory answer as to
why the Ministry chose to achieve consistency by using the title Sergeant, which
24
would suggest demotion to most employees, familiar as they are with a hierarchical
system, when they could have adopted Lieutenant (or Captain or Operational
Manager, or other terms which did not indicate reduction in rank) throughout the
province instead. Evidence to support a finding that this should be seen as fulfilling
the responsibilities to colleagues of fostering and maintaining working relationships
based on mutual respect, dignity and cooperation, and contributing to sustaining an
environment which is fair and equitable to the Operational Managers as required by
the Statement of Ethical principles is not before me. The stated goals of the policy
initiative, as counsel argued, were positive ones, and the complainants’ evidence
does not positively establish that the change in rank was intended to be unfair or
arbitrary. However, the intention of the decision-makers is not in the knowledge of
the complainants. When considered as a whole, the evidence leaves me unpersuaded
that the decision was made in a manner which adequately considered the prohibition
on degradation in the Statement of Ethical Principles, and the likely impact on the
Operational Managers, the only group affected by it to date. As well, the evidence
persuades me that, quite apart from the complainants’ subjective response, the
employer’s action was objectively degrading to the Operational Managers, as
demonstrated by the evidence of the context of the meaning of rank in the workplace
and the reactions of others in the workplace and community.
[52] In the circumstances, I find the employer’s actions in reducing the complainants’
rank to Sergeant to be arbitrary, in the sense of not taking account of the relevant
considerations of the impact on the Operational Managers, and in the sense of being
basically unexplained. I find this to be a breach of the complainants’ terms and
conditions of employment, including the Statement of Ethical Principles and its
prohibition of degrading treatment.
[53] The question becomes how to remedy this situation. In their written complaints, the
complainants asked for pay at the rate of Sergeants in the Ontario Provincial Police
service and re-assignment to the rank of Lieutenant. In final argument, Mr. Allen
25
said that the damage had been done, and they were not “arguing money”. The goal
of any remedy is to put the parties, as nearly as possible, back in the position they
would have been if things had gone in accordance with the pertinent terms and
conditions of employment. Here, the evidence before me warrants the inference that
what went wrong is that the employer did not adequately consider the likely impact
of the designation of a lower rank on the Operational Managers, their morale and
working environment, or the provisions of the Statement of Ethical Principles,
before making the decision to achieve consistency by moving the rank of the
Operational Managers downwards. I am persuaded, in the absence of evidence of
bad faith, that if that had been done, the decision would likely have been different.
[54] In these circumstances, the result which best puts the parties back in the position
they would have been in if the impact on the Operational Managers in light of the
Statement of Ethical Principles had been adequately considered is to return the
situation to where it was before the decision to change the Operational Managers’
rank title to Sergeant, with the associated uniform and policy change. The method to
achieve this in law is to declare that decision of no force and effect.
[55] However, the Board acknowledges that the current situation is that the Operational
Managers are referred to throughout the province as Sergeants, and are required to
wear sergeants’ epaulettes, and that operationally, it will take time for the employer
to implement the Board’s decision to rescind the decision to change the title to
Sergeant. As well, the employer retains its rights to manage the workplace to the
extent that the exercise of those rights is not in conflict with the complainants’ terms
and conditions of employment or this decision. Therefore, the Board has decided to
declare the decision to reduce the complainants’ rank to Sergeant of no force and
effect, but to delay the effective date of that declaration for sixty days from the date
of this decision. The practical effect of that is that the complainants’ rank title and
that of their colleagues is returned to Lieutenant or Captain with the corresponding
uniform as of that date. Leaving them with their former rank would be, on the
26
evidence before me, the most straightforward way to maintain things as they were
before the breach occurred. Nonetheless, if the employer is still interested in
consistency of title as well as uniform, I do not foreclose the possibility that the
employer may be able to formulate an alternative that would be consistent with the
complainants’ terms and conditions of employment and the findings of this decision.
***
[56] To summarize, I do not find that the complainants were demoted or constructively
dismissed in the legal sense of those terms because their compensation, position
classification, duties and responsibilities remain the same. However, I find, on the
evidence before me, that the decision to reduce the Operational Managers’ rank title
to Sergeant, along with the policy and uniform changes effecting the change to
Sergeant, were arbitrary and in breach of the Statement of Ethical Principles. As the
remedy which returns the parties, as much as possible, to the situation before the
breach, the Board declares the decision to reduce the Operational Managers’ rank to
Sergeant, and the changes to uniform and policy that implemented that decision, to
be of no force or effect as of sixty days from the date of this decision.
[57] The grievance is allowed in part, to the extent noted above. I will remain seized to
the extent necessary to resolve any dispute over the implementation of this decision.
Dated at Toronto, this 18th day of December 2013
_______________________________
Kathleen G. O’Neil, Vice-Chair