HomeMy WebLinkAboutP-2014-2665.Hasted-Berezowsky.16-01-18 DecisionPublic Service
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PSGB#P-2014-2665
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT OF ONTARIO
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Hasted/Berezowsky Complainants
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The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Marilyn A. Nairn Vice-Chair
FOR THE COMPLAINANTS
John Hasted & Evelyn Berezowsky
FOR THE EMPLOYER Peter Dailleboust
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING December 9, 2015
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Decision
[1] This complaint was brought on behalf of both John Hasted and Evelyn
Berezowsky. Both are currently Operational Managers with the Ministry of Community
Safety and Correctional Services (the “Ministry”). The matter was scheduled for
mediation on December 9, 2015. Prior to that date the employer advised that it had no
position to mediate and further notified the Board and the complainants of two
preliminary objections to the complaint proceeding. Those objections had been
identified in the employer’s response to the notice of proposal to file a complaint. The
complainants set out their position on the preliminary issues in an e-mail response, and,
on December 9, 2015, confirmed that they were prepared to proceed to have those
matters heard. In the result, I heard the two preliminary objections raised by the
employer. This decision addresses those issues.
[2] At the outset, the complainants indicated that they had understood that there had
been a settlement of the issues at the local level. The employer was not aware of any
agreement and no settlement document had been executed by the parties. The
complainants agreed that it must be assumed that no agreement had been reached.
[3] As the complainants were unrepresented, it was agreed that the employer would
set out the facts on which it was relying and its argument on each objection and then
allow the complainants an opportunity to address any factual concerns, following which I
heard the complainants’ argument and employer reply. Much of the factual information
was not in dispute or was not challenged for purposes of the preliminary issues.
[4] The application sought the payment of “agreed compensation for all hours of
standby while at the Toronto Intermittent Centre”. That application expressly relies on
the information and assertions contained in the complainants’ notice of proposal to file a
complaint (the “Notice”). That Notice is somewhat broader and asks that:
1. The current practice of the grievers [sic] “On Call” be redefined as a “Stand By” to
accurately reflect the expectations and responsibilities.
2. The Managers be compensated as per the Management Compensation
Directives as Schedule 3.4.5 Managers to ensure fair and equitable application
policy [sic].
3. Retroactive compensation to the grievers for “Stand By” duties dated back to
January 2011.
4. General damages for each griever, $25,000.
5. A commitment by the employer to establish a working group comprising of MCP
Schedule 6 Managers assigned to “Stand By” duties and the Employer in an
effort to address concerns from the group and alleviate inequities brought
forward by the group.
[5] At the hearing the complainants clarified that, fundamentally, the complaint
concerns the employer’s failure to compensate them for on call duties performed when
the complainants were assigned to Acting Deputy Superintendent duties at the Toronto
Intermittent Centre (“TIC”). The Notice asserts that the employer has treated its
Management Compensation Plan (“MCP”) employees in an “unfair, unequal and
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inequitable manner”. Further, that the employer “has not exercised its authority to
implement a directive for the fair and equitable compensation for work done by the MCP
Schedule 6 Group, as per Section 33. (3) of the PSOA”.
[6] The Notice refers to the Management Compensation Directive (the “Directive”) at
sections 21.(2) and 22.(2) as providing definitions of “on call” and “stand by” and notes
that the facility on call manager performs stand-by duty in addition to the 36.25 hours
per week schedule “in which our compensation is currently based”.
[7] The Notice also states that, “[t]here are not provisions in the PSOA or
Management Compensation Directive that allow or to [sic] speak to any premium
compensation for Schedule 6 Managers”. There appears to be no dispute that Deputy
Superintendents fall within Schedule 6 of the Directive. Having identified various
asserted factors, including heightened risk within correctional services, increasing job
demands, and an enhanced need for accountability, the Notice asserts that inconsistent
and arbitrary application of policy has created inequities among the manager group,
noting also that lower subordinate classifications may receive higher compensation.
This appears to be a reference to the unionized group of employees who are
compensated for on call and/or standby duties in accordance with the terms of their
collective agreement.
[8] Mr. Hasted began the Acting Deputy Superintendent assignment at TCI in March
2012. That assignment ended on January 5, 2014. On January 6, 2014 he returned to
his home position as an Operational Manager on a temporary assignment at Maplehurst
Correctional Centre and he has since moved to the Ontario Correctional Institute.
[9] Ms. Berezowsky began the Acting Deputy Superintendent assignment at TIC in
April 2012. That assignment ended on January 19, 2014. On January 20, 2014 she
began an Acting Deputy Regional Director assignment and, as of December 2014,
returned to the Ontario Correctional Institute as an Operational Manager.
[10] The Notice is dated July 21, 2014 although signed by the complainants on July
23, 2014. The employer received it shortly thereafter.
[11] At the hearing, Mr. Hasted stated that when they arrived at TCI it was explained
that there was a system in place whereby Deputy Superintendents received a day off for
being on call for a week. However, such was not the case at TCI, they were advised,
because the complainants were scheduled to work Saturdays and Sundays instead of
being on call those days. TCI houses offenders who serve their sentences on an
intermittent basis, typically on weekends. He stated that the complainants accepted
what they were told while working at TCI. Mr. Hasted further stated that, in July 2014
however, a senior manager told them that they should have received an additional day
for the hours they were on call for the institution outside of their working hours. The
Notice was filed within days of receiving that advice.
[12] According to Mr. Hasted’s understanding, this compensation is not provided
through the Management Compensation Directive, but is a practice in place within the
Ministry for Deputy Superintendents. According to Mr. Hasted’s assertion, rather than
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payment of the amount of $1.25 per hour provided for some managers in the Directive
for being on call, Deputy Superintendents’ on call days are tracked via a monthly
attendance form and a day off for each week of on call is provided. For purposes of
these preliminary issues, the employer did not challenge these assertions, and the
existence and/or scope of any such compensation remains a matter relevant to any
hearing on the merits.
[13] In terms of remedy, the complainants now seek ‘on call days’ for periods they
were on call. They estimated that they had each been on call for about 22 weeks in
2013, which would result in compensation for 22 days each for 2013. The complainants
estimated that they were each on call an average of two weeks per month during their
acting assignments at TCI.
Timeliness
[14] The employer took the position that the notice of proposal to file a complaint was
filed outside the time limits required and that the Board was thereby without jurisdiction
and was precluded from hearing the complaint. It referred to the decisions in St. Amant
and the Crown in Right of Ontario (Ministry of Community Safety and Correctional
Services), PSGB No. P2012-0601, January 31, 2013 (Carter); John Hauth and the
Crown in Right of Ontario (Ministry of Community Safety and Correctional Services),
PSGB No. P2013-1411, October 18, 2013 (Carter); and Mike Lee et al and Jim Allen
and the Crown in Right of Ontario (Ministry of Community Safety and Correctional
Services), PSGB No. P2010-0702, P2010-1055, July 21, 2011 (O’Neil).
[15] The employer argued that these cases make it clear that the time limits for filing
the Notice are mandatory and that the Board has no discretion to extend the time limits.
Those time limits require the filing of a notice of proposal to file a complaint within 14
days after the complainant becomes aware of the working condition or term of
employment giving rise to the complaint. The complainants concluded their work at TCI
in January 2014. The employer argued that, even were the alleged breach of a
continuing nature, the 14-day time limit would have run from January 2014. The Notice
was not filed until July 2014, some six months later.
[16] Further, argued the employer, the provision could not be read so as to allow a
notice of proposal to file a complaint to be filed within 14 days of learning that there
might be a legal argument in support of a complaint. Such an interpretation would
effectively eliminate the mandatory time limit, argued the employer. There was no
evidence that this entitlement was provided at TCI during their assignment there, noted
the employer, and even on the complainants’ own statement, did not exist during their
employment there.
[17] It was the complainants’ position that the Notice was timely, the Notice having
been filed immediately after they were advised of the working condition/term of
employment. It was only after they left TIC, they argued, that they were advised of their
alleged entitlement.
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Decision - Timeliness
[18] For the reasons that follow, I find that the notice of proposal to file a complaint in
this case was not given in a timely manner. The cases referred to establish clearly that
the time limits for filing a notice of proposal to file a complaint, set out in sub-section
8(4) of Regulation 387/07, are mandatory and that the Board has no discretion to relieve
against those time limits. The decision in John Hauth, supra, concludes:
[2] In three recent cases, the Public Service Grievance Board considered the
legal implications of the requirement imposed by section 8 of Regulation 387/07 to
give notice of a complaint to the Deputy Minister. In Jackson v. Ontario (Ministry of
Community Safety and Correctional Services) [2011] O.P.S.G.B.A. No. 8 the
Board made it clear that notice to the Deputy Minister was an essential
precondition for it to take jurisdiction over a complaint. At paragraph 38 of that
decision, the Board stated:
Furthermore, there was no suggestion that the Board can simply ignore the fact that
the preconditions in sections 8 and 9 were bypassed, or that there is power in the
Board to treat the matter as if those preconditions had been met…If the complainant
was not eligible to file the grievance, there is no grievance properly before the Board,
and it must be dismissed.
[3] A similar approach was taken by the PSGB in a second case, Muldoon v.
Ontario (Ministry of Community Safety and Correctional Services) [2011]
O.P.S.G.B.A. No. 13, where the complainant had failed to give the required notice
in respect of several complaints. The Board stated in that case:
Given that the required notice was not given by the complainant in respect of any of
these complaints, the legal consequences are that the complainant was not eligible
to file these complaints with the Board so that these complaints are not properly
before the Board.
[4] In both of the above cases, there had been a complete failure to give any
notice to the Deputy Minister, and the Board held that the combined effect of
sections 4 and sections 8 of Regulation 378/07 was to make giving notice of a
complaint an essential condition of its jurisdiction. In the third and most recent
case, St. Amant v. Ontario (Ministry of Community Safety and Correctional
Services) [2013] O.P.S.G.B.A. No. 2, the Board dealt with the situation where
notice had been given but that notice fell outside the required time limits. The
Board stated in that case:
The Board does not consider that this difference changes the outcome for this
complaint. Given the mandatory language of the 14 day time limit set out in section
8, the Board must conclude that notice given within that time limit is also just as
much a precondition for it to assume jurisdiction over a matter as the requirement to
give the notice.
[5] The complainant did not dispute the employer’s contention that in this case
he had received a ten-day suspension on September 27, 2012, and that his notice
of a proposal to file a complaint was filed on November 21, 2012, with his Deputy
Minister. The filing of this notice was clearly well outside the 14 days stipulated by
section 8(4) 2 of Regulation 378/07. As the Board held in the St. Amant case,
notice within that time limit is a precondition for the Board to assume jurisdiction
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over a complaint. The late filing of this notice means that the complainant was not
authorized by that Regulation to file a complaint with the result that the Board has
no jurisdiction to deal with it.
[6] The language used to prescribe time limits in the new Regulation 378/07
leaves no doubt as to its mandatory nature. Given the mandatory nature of these
time limits and the lack of any express statutory authority to relieve against these
mandatory time limits, the Board has no power to alter the jurisdictional
consequences of a failure to comply with the time limits set out in section 8 of that
Regulation. It is for this reason that this complaint must be dismissed. This
conclusion is in no way a reflection on the merits of the complaint itself but merely
a determination that the Public Service Grievance Board, as a tribunal created by
statutory enactments, can only stay within the limits of these enactments.
(emphasis added)
[19] These decisions make it clear that, unless the notice of proposal to file a
complaint is filed within the regulatory time limit, the Board has no jurisdiction to
consider the complaint. They also make clear that the Regulation intended to impose
strict time lines for the filing of a notice of proposal to file a complaint, putting the
employer on timely notice of an issue and removing any ability of the Board to extend
that time limit.
[20] Was this Notice, dated July 2014, given in accordance with the time limits? Sub-
section 8(4) of Regulation 378/07 states:
Notice of proposal to file a complaint
8. …
(4) The notice must be given within the following period:
…
3. For a complaint about a working condition or a term of employment,
within 14 days after the complainant becomes aware of the working
condition or term of employment giving rise to the complaint.
[21] The words, “after the complainant becomes aware of the working condition or
term of employment giving rise to the complaint” are ambiguous. If the phrase were
interpreted as simply meaning 14 days from the point at which one becomes aware of
the working condition or term of employment, it would lead to an absurdity. Provided
there was no breach within the following 14 days, no complaint about a later breach of
the term of employment could ever proceed. For example, an employee is told (and
thereby becomes aware) on their first day of employment that they are to be paid $30
per hour, and initially, they are in fact paid that amount. Subsequently however, the
employer pays the employee $25 per hour. A notice of proposal to file a complaint is
filed immediately on receipt of the pay stub showing the deficit. Yet that notice would be
untimely and such a complaint could not proceed if all that is required is knowledge of
the working condition or term of employment.
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[22] The additional words “giving rise to the complaint” arguably refer to some breach
of the working condition or term of employment, as it is typically the alleged breach of a
provision that gives rise to a complaint. It is more reasonable to interpret the time limit
as running from the date that a complainant becomes aware of circumstances giving
rise to the complaint, rather than the mere existence of the working condition or term of
employment.
[23] The complainants argue that this is what happened; they filed their complaint
within 14 days of learning of the alleged breach of the working condition or term of
employment. I disagree. The complainants were scheduled for on call duties throughout
their acting assignment without complaint. To suggest that one can accept identified
terms of employment without challenge, only to have an opportunity to challenge them
long after those terms are no longer applicable as a result of a change in assignment, is
to put the employer in an untenable position and alleviates the employee of any
responsibility to ensure that they are being compensated appropriately. It also renders
meaningless the short and mandatory time limits set by the Regulation in clear
contradiction to its intended purpose of bringing issues to the attention of the employer
at the earliest, failing which the Board is rendered powerless to deal with the issue.
[24] The complainants acknowledge that they accepted the employer’s recitation of
their terms of employment at the outset of their assignment. The complainants had
expressly been informed that, allegedly for reasons having to do with scheduling at TCI,
they were not entitled to the compensation they now claim. In other words, they were
aware of the working condition or term of employment – that is, that they would be
required to perform on call duties and further, that they would not be specifically
compensated for that work. In addition to understanding the employer’s position, they
were then in a position to investigate and challenge that position. Any complaint about
the fact that they were not going to be specifically compensated for such duties
crystallized at that time, at the outset of their assignment. Similarly, in St. Amant, supra,
the Board found that the time limit ran from the date that the complainant understood
that the employer’s delay in responding to her request for a leave of absence rendered
her unable to utilize the leave. The Board found that the employer’s failure to respond
by a given date “brought the matter to a head” at that time (para. 9).
[25] The appropriateness of that interpretation is highlighted by the fact that a breach
of this asserted working condition or term of employment might well have been
characterized as continuing, occurring each time the complainants were required to be
on call, thereby allowing the complainants an opportunity to challenge any alleged
violation throughout their assignment, although likely limiting the remedy available to
them. There was no continuing breach of the alleged entitlement after January 2014, as
the working condition was no longer engaged. Neither complainant continued to perform
on call duties at TCI after January 2014. Yet they seek compensation for the entire
period of their assignment, a remedy that may well not have been available to them had
they raised the issue during their assignment.
[26] I am persuaded that, in the circumstances here, a timely notice of proposal to file
a complaint was required to have been filed no later than 14 days following the end of
the Acting Deputy Superintendent assignment at TCI, or, no later than 14 days from the
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date of payment reflecting the completion of that assignment. In either case, the July
2014 Notice was well beyond a timely date.
[27] I find therefore that the complaint is untimely and, as a result, must be dismissed.
[28] If I am wrong in this conclusion regarding the interpretation and application of
sub-section 8(4) of Regulation 378/07, I find that the complainants have effectively
waived any right to advance the claim they are now asserting. As noted above, they
were aware from the outset of the employer’s position that they were not entitled to
specific compensation for on call and/or standby duties while in the Acting Deputy
Superintendent assignment. They performed those duties and accepted the employer’s
position without challenge for the full duration of the assignment. From a contractual
standpoint, the complainants admit that they accepted that term during the period of the
assignment. For this reason, the complaint is dismissed.
The classification issue
Although not necessary for the disposition of this application, the employer indicated
that a number of other similar complaints are outstanding which may not give rise to a
timeliness issue. For that purpose it asked that a decision be rendered on its second
preliminary objection. The findings below remain specific to the circumstances of this
case and may or may not assist other parties in the conduct of other litigation.
[29] Sub-section 4(2) of Regulation 378/07 provides, inter alia:
4. (2) The following matters cannot be the subject of a complaint about a working
condition or about a term of employment:
…
2. The assignment of the public servant to a particular class of position.
[30] It was the employer’s position that the claim for compensation in this case is, in
effect, a claim to be treated as falling within a classification other than the assigned
Schedule 6 classification, a claim it asserts is precluded by the sub-section cited above.
The complainants acknowledged, noted the employer, that Schedule 6 employees are
not eligible for standby or on call compensation under the Directive. The complaint, it
argued, seeks to have the Board treat the complainants as falling within a different
classification thereby making them eligible for on call and/or standby pay in accordance
with the Directive. As the complainants are asking to be treated in the same manner as
those within a different classification, this is a classification grievance, argued the
employer, and accordingly, the complaint cannot proceed given sub-section 4 (2) 2. of
the Regulation.
[31] The employer referred to the following decisions: Stephen Johnston & Hank
Vipari and the Crown in Right of Ontario (Ministry of Community and Social Services),
PSGB No. P/0003/99, November 8, 1999 (Leighton); G. Bertolo, E. Tighe and the
Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services),
PSGB Nos. P/0008/95; P/0005/95, February 22, 1996 (Leighton); and J. Gleason and
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the Crown in Right of Ontario (Ministry of Transportation), PSGB No. P/0040/92,
February 20, 1998 (Leighton).
[32] It was the complainants’ position that this was a claim for compensation for hours
worked while on call, not a classification grievance. While the complainants understood
that the compensation requested was not “written down anywhere”, they argued that,
whether or not the compensation was provided for in the Directive, there was a past
practice of providing such compensation, a matter referred to in the Bertolo case, supra.
Reliance on a long standing past practice to compensate administrators for on call time
was also raised by the complainants in their e-mail response to the employer’s
statement of its preliminary objections.
[33] In reply, the employer argued that terms and conditions of employment are
identified depending on the classification of the position at issue. The Board only has
jurisdiction to consider the terms and conditions of that position in assessing any claim,
argued the employer. In terms of past practice, if the complainants are seeking to refer
to what may have occurred in the past, it was unhelpful, argued the employer, in
determining the terms and conditions of employment currently. There was no
suggestion that there was a practice at TCI, argued the employer. The remedy sought,
argued the employer, necessarily required the Board to make Schedule 6 employees
eligible for on call within the Directive, effectively rendering this a classification
grievance.
*
[34] Much of the employer’s argument goes to whether or not there can be or were
applicable working conditions or terms of employment outside those expressed in the
Directive. The decisions in Stephen Johnston & Hank Vipari and in Gleason, both supra,
make it clear that the Board has jurisdiction to consider what working conditions and/or
terms of employment were in place at the time of the complaint and that the term
“working conditions or terms of employment” should be viewed liberally. See for
example, pages 6-7 of the decision in Stephen Johnston & Hank Vipari. In taking
jurisdiction in Gleason, the Board stated at pages 13-14 of that decision:
…That is, the Employer is right that this Board has no jurisdiction simply to review
the salary range for a classification, to assess whether given the responsibility
and requirements of the job it is being paid adequately. This is a true
classification grievance for which the Board has no jurisdiction…
However, where there has been an allegation that there has been a breach of a
working condition or term of employment - in this case, that a policy which formed
a working condition or term of employment has been breached, the Board must
adjudicate…
Although at first blush it might appear that Mr. Gleason’s complaint is a
“classification” grievance, it is not. The Grievor is not simply asking for the Board
to review the Employer’s decision to set appropriate pay levels according to
qualifications and job responsibility. Counsel argued that evidence would be
presented that showed a policy in place in 1990, which is part of the Grievor’s
working conditions, and that the Employer had breached it. Whether or not the
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Grievor here is able to prove that there was such a policy in effect in 1990 and
that it was breached is a question of the merits of the case, which can only be
decided after hearing the evidence. Thus, I have concluded that the Board must
take jurisdiction to hear this case.
Further, I am of the view that it is premature for me to consider the Employer’s
argument that such a policy would amount to a fetter of the discretion of the Civil
Service Commission…
[35] A determination of the working conditions and/or terms of employment applicable
at the time of a complaint is a matter going to the merits of a claim and, had this
complaint not been untimely, I would have concluded that the Board had jurisdiction to
entertain the complaint, given the complainants’ assertion (not particularized) of a past
practice constituting a term of employment applicable to Deputy Superintendents.
Whether the matter asserted is able to be proven may only be determined following the
hearing of the relevant evidence, but it is a matter within the Board’s jurisdiction to
consider.
[36] Having regard to the findings made in paragraphs 27 and 28 above, this
complaint is hereby dismissed.
Dated at Toronto, Ontario this 18th day of January 2016.
Marilyn A. Nairn, Vice Chair