HomeMy WebLinkAboutP-2015-3211 Morrison et al.17-11-21 Decision
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PSGB#P-2015-3211
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE OF ONTARIO ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Morrison et al Complainant
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The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Marilyn Nairn Vice-Chair
FOR THE
COMPLAINANTS
D. Morrison & J. Downard
FOR THE EMPLOYER
Peter Dailleboust
Treasury Board Secretariat
Legal Services Branch
Senior Counsel
HEARINGS April 21 and November 6, 2017
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DECISION
[1] This application has been filed by a group of Sergeants who work at Central North
Correctional Centre (“CNCC”). These individuals are Schedule 5 employees under the
employer’s Compensation Directive. The complainants seek the payment of enhanced
overtime for time spent working at the facility during the labour disruption that occurred in early
January 2016.
[2] There is not much dispute as to the facts. In early January 2016 it was anticipated that
Correctional Officers (“COs”), members of the OPSEU bargaining unit, might go out on strike.
Contingency plans were put into place to ensure that this facility and others across the
province would be staffed by managers from across the OPS. Early on Thursday, January 7,
2016 the COs at CNCC did not attend at work in an exercise that became known as the “blue
flu”. As a consequence, the complainant Sergeants moved into the facility and, with some
variance in their arrival times and length of stay, remained in the facility until Sunday, January
17, 2016. In the result, most, if not all of these complainants remained at CNCC on a 24/7
basis for a period of up to ten days. There was no dispute that all of this time spent in the
facility was treated as work time. There was also no dispute that the Sergeants’ efforts
reflected a much-appreciated commitment to the employer to keep the institutions operating
safely and securely.
[3] The employer placed the Sergeants on an administrative schedule effective Monday,
January 4, 2016. This meant that the Sergeants were scheduled to work an 8-hour shift
Monday to Friday each week. The complainants acknowledged that the employer was entitled
to so change their schedules, although they disputed the effect of that change.
[4] Overtime worked by the complainants on Monday, January 4 through to Wednesday,
January 6, 2016 was paid at regular overtime rates based on the daily amount of overtime
worked. Overtime worked on Thursday, January 7 and Friday, January 8, 2016 was paid at the
enhanced overtime rate. Forty hours in the week was paid at the straight time rate. For the
remainder of that weekend, the complainants received the 2.5x enhanced overtime payment
provided they remained in the institution.
[5] Beginning on the Monday of week two of the labour disruption (January 11, 2016), the
complainants continued to effectively work 24 hours a day. For those who remained in the
institution, they were paid the 2.5x enhanced overtime rate for all hours until Friday, January
15, 2016 except for 40 hours paid at straight time. It appears that the enhanced overtime rate
was paid until 11:59p.m. Friday, January 15, 2016.
[6] On January 8, 2016 the Director, Total Compensation Strategy Branch of Treasury
Board Secretariat, issued a memo setting out the compensation items that had been approved
by the Public Service Commission (“PSC”) relating to the labour disruption, effective January 7,
2016. That memo provided:
The Public Service Commission (PSC) approved a number of compensation
items for work at institutions, youth centres and at the corporate or ministry strike
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response centres, relating to work resulting from a labour disruption, effective
January 7, 2016.
Further, and also effective January 7, 2016, the PSC approved work locations
where enhanced overtime, at two times (2x) or two and one-half times (2.5x) may
be available.
These approvals are summarized in the chart below.
Starting January 7, 2016 at 12:01a.m.
[The chart provides for “Enhanced Overtime in Facilities for labour disruption
related work at 2x or 2.5x” – “Available at the PSC-approved work locations listed
in Appendix 1…”]
Overtime thresholds currently in place in the MBC Compensation Directive
remain in place and must be met each week (Monday to Sunday) prior to the
assignment of overtime credits for that week. These thresholds include:
…
• Schedule 4 and 5 employees, a minimum of 40 hours.
An employee is not considered to be working overtime when they are working
their regular working period during a regular scheduled work day, when they are
on call, on stand-by or travelling.
[7] There was no dispute that CNCC was listed on Appendix 1 and was an approved work
location that attracted the enhanced 2.5x overtime rate.
[8] On January 28, 2016 a memo issued from the Deputy Minister of Correctional Services,
Stephen Rhodes, which stated in part:
I am writing to confirm more detailed information regarding the Public Service
Commission (PSC) approvals for compensation related to a labour disruption
(LD). These items are summarized in the chart below:
When
January 7, 2016 at 12:01am to January 17, 2016 at 11:59p.m.
Entitlement
…
Enhanced Overtime in Approved Work Locations for LD related work at 2x or
2.5x [Available at the PSC-approved work locations….]
For employees who have entitlements to standard overtime credits through the
MBC Compensation Directive, they may be entitled to standard overtime credits
prior to the PSC approved LD related compensation.
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For clarity, the above-noted overtime rates may only be applied for the period of
January 7 to January 17, 2016, inclusive. All regular hours worked on January 4,
5, and 6, 2016 will contribute to meeting the overtime threshold requirements.
Per the regular rules, an employee is not considered to be working overtime
when they are working their regular working period during a regular scheduled
work day…
(emphasis added)
[9] On January 29, 2016 the Director, Total Compensation Strategy Branch issued another
memo that repeats both the entitlement to standard overtime prior to the labour disruption and
that the overtime thresholds remain in place. It also re-states that the entitlement to the
enhanced overtime “may only be applied for the period January 7, 2016 at 12:01am to January
17, 2016 at 11:59p.m. inclusive”.
[10] The reference in the January 28 memo (repeated in the January 29 memo) to standard
overtime accounts for the payment of daily overtime at time and a half on Monday, January 4
to Wednesday, January 6, 2016. However, contrary to the Deputy Minister’s January 28, 2016
memo, the January 29, 2016 memo stated that:
All hours worked on January 4, 5, and 6, 2016, will contribute to meeting the
overtime threshold for the week.
[11] On February 1, 2016 a further memo issued from Assistant Deputy Minister of
Institutional Services, Pauline Jones. It confirms that Schedule 5 employees were placed on an
administrative schedule for the period January 4 - 17, 2016. It also confirms that the enhanced
overtime was available in approved work locations for labour disruption related work until
January 17, 2016 at 11:59p.m.
[12] Lastly, on February 4, 2016, a memo issued from the Deputy Superintendent of Finance
& Performance Management at CNCC. It essentially lists the compensation owing on a daily
basis over the period from January 4 to January 17, 2016. However, it states that hours
worked on Saturday, January 16 and Sunday, January 17, 2016 are to be paid at a rate of 1.5x
the regular rate on the basis that the institution was “back to normal operations” effective 1800
hours on Friday, January 15, 2016.
[13] It was the evidence of Sergeant Darren Morrison that CNCC was back to its regular
schedule on Monday, January 18, 2016. Mr. Morrison’s evidence was that some Sergeants
were kept at CNCC over the January 16-17, 2016 weekend in order to do cleanup and prepare
for the start of regular operations on the Monday. This included the tear-down and clean-up of
the “tent”, the area where the Sergeants were housed over this period. It had been established
in an inmate training area and had to be dismantled, and the area cleaned and readied and
available for inmate use on the Monday. This evidence as to the type of work performed by the
Sergeants in the institution over that weekend was not challenged.
*
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[14] It was the position of the complainants that they were entitled to the enhanced overtime
rate as follows:
1. Week one - payment of the enhanced overtime effective on their arrival in the institution
on January 7, 2016 as they had already worked their 40-hour minimum to trigger the
enhanced overtime (a claim for 16 hours);
2. Alternatively, payment for the enhanced overtime reflecting the time worked and paid on
Friday, January 8, 2016 at regular rates, as the 40-hour minimum had been worked
(a claim for 8 hours);
3. Week two - 40 hours that had been paid at straight time to be paid at the enhanced rate
as the 40-hour minimum was not required to ‘re-set’ in week 2; and
4. Payment at the enhanced rate for work performed from Friday, January 15 at 1800
hours to Sunday, January 17, at 11:59p.m.
[15] The complainants referred to the decision in D. O’Donnell et al and The Crown in Right
of Ontario (Ministry of the Solicitor General & Correctional Services), PSGB File P/0023/96 et
al, dated December 11, 1997 (Leighton) in support of its argument that there was no need to
satisfy the 40-hour minimum threshold in week two as the Sergeants had not left the building.
They noted that they had all experienced significant disruption in their lives in terms of vacation
plans and excessive standby over the prior year while bargaining was ongoing and threats of
labour disruption came and went, but, at the same time, they had worked closely with the
Ministry to plan for any labour disruption so as to ensure the safety and security of the
institutions. The complainants asserted that their Superintendent had told them that they would
receive the enhanced pay, and that they are now hesitant to step up as the Ministry may
require, out of concern that they are not going to be paid what they are told they will receive.
[16] It was the position of the employer that no further entitlement to overtime arose in the
circumstances. It argued that the 40-hour minimum at straight time was required in each week.
It relied on the February 4, 2016 memo as setting the appropriate rate for work performed on
the weekend of January 16 and 17, 2016 at regular overtime rates, that is, time and a half not
2.5x.
[17] The employer argued that the Board has no jurisdiction to amend terms and conditions
of employment set by the employer, even if those terms are set retroactively. It is the role of
the Board, argued the employer, solely to interpret and apply those terms and conditions. No
entitlement to enhanced overtime exists, argued the employer, until the employer says it exists,
pursuant to a determination made by the PSC. The directives regarding overtime applied
across the OPS, noted the employer, as managers were being redeployed from across the
OPS to assist with the labour disruption.
[18] With respect to the weekend work on January 16 and 17, 2016, the employer argued
that the February 4, 2016 memo stated that the labour disruption had ended. There was no
entitlement to enhanced overtime as of that point, argued the employer. It was no longer a
term or condition of employment.
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[19] The employer distinguished the case relied on by the complainants as arising under
different legislation and regulations, referring the Board to the Directive as setting out the terms
and conditions of employment. The employer also referred to the decisions in Lisa Smith et al
and The Crown in Right of Ontario (CSCS), PSGB File #2012-4155, dated July 9, 2014
(O’Neil), and Candace Kaine and The Crown in Right of Ontario (MCY), PSGB File #2013-
1036 dated July 11, 2014 (O’Neil) in support of its position that the authority of the Board is
limited to interpreting and applying the terms and conditions of employment.
*
[20] It is the case, as set out in the decisions in Smith and Kaine, both supra, that the Board
has no jurisdiction to set terms and conditions of employment for excluded employees,
including these Schedule 5 Sergeants. The Board’s authority and role is to interpret the
applicable terms and conditions of employment and apply them to the circumstances at issue,
in order to determine whether or not there has been a breach of those terms or conditions.
[21] It is also the case that the terms and conditions of employment being considered in the
O’Donnell decision, supra, were different from those in issue here. In that case, overtime was
payable, inter alia, after the employee worked his regularly scheduled shift. There was no other
or express overtime threshold that was required to be met before the entitlement to overtime
arose. Since that decision issued some twenty years ago, both the structure of overtime
compensation (now flowing from the Compensation Directive) and the specific terms of that
compensation have changed. On that basis the decision is distinguishable from the
circumstances at hand and provides no guidance.
[22] So what were the terms and conditions of employment applicable in the circumstances?
[23] The memo of January 8, 2016 set out the terms and conditions established by the PSC.
It stipulated that enhanced overtime may be available and then set out the parameters. The
chart at page 2 of that memo sets out the “when”, “what” and “who”. Starting January 7, 2016
at 12:01am, enhanced overtime was to be available in facilities for labour disruption related
work at those locations listed in Appendix 1. Subject to the period January 15 to January 17,
2016, there is no dispute that these Sergeants worked at an approved facility performing
labour disruption related work and were therefore entitled to the enhanced 2.5x overtime rate,
subject to any other applicable conditions.
[24] The memo of January 8, 2016 also stipulated the further conditions on that overtime
entitlement. It clearly stated that existing overtime thresholds remained in place and must be
met each week. The week is expressly defined as Monday to Sunday. For a Schedule 5
employee, that threshold is a minimum of 40 hours.
[25] Of significance is that the memo made clear that an employee was not considered to be
working overtime when they were working their regular working period during their “regular
scheduled work day”. Over this period the employer had placed the Sergeants on an
administrative schedule. That is, they were all scheduled to work Monday to Friday for 8 hours
each day. There was no dispute that the employer was entitled to change the Sergeants’
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schedule in this manner. The memo confirms that these hours worked are not considered as
overtime work.
[26] I am not prepared to place any weight on the omission of the word “regular” from the
January 29, 2016 memo. The January 28, 2016 memo from the Deputy Minister includes that
refinement and its inclusion is consistent with the other language regarding the application of
the overtime threshold that refers to a “regularly scheduled work day” and “regular working
period”. Thus, to the extent that it creates an ambiguity, I am satisfied that the ambiguity is
properly resolved in favour of an interpretation that requires the overtime threshold to include
only those regularly scheduled hours worked on those days, not all hours worked on those
days. I also note that the applicable terms and conditions of employment are those set by the
PSC, regardless of how those terms may have been communicated locally.
[27] In the result, the Sergeants were required to work their scheduled work time to a
minimum of 40 hours at the straight time rate each week. That is, the employer was entitled to
carve out 16 hours of scheduled work on January 7 and January 8, 2016 to be paid at the
straight time rate. Daily overtime was paid at the enhanced rate. Further, in week two, the
employer was entitled to ‘re-set the clock’ as of Monday, January 11 2016. Subject to the
second weekend, the employer treated any overtime in week two as attracting the enhanced
rate, regardless of whether the 40 hours had yet been worked at straight time. That is, it
appears to have paid the enhanced rate on the daily overtime. However, the deduction of 40
hours paid at the straight time rate from the total hours worked from Monday, January 11 to
Friday, January 15, 2016 inclusive is consistent with the stipulation that an employee is not
considered to be working overtime when they are working their regular working period during
their “regular scheduled work day”.
[28] Therefore the enhanced overtime claims made by the Sergeants under points 1 through
3 in paragraph 14 above are not supported and must be dismissed.
[29] The remaining claim is with respect to the second weekend - January 16-17, 2016. The
employer argued that the February 4, 2016 memo says that the labour disruption was over at
1800 hours on January 15, 2016. It appears that the enhanced rate was paid for overtime work
performed on Friday, January 15, 2016 beyond 1800 hours, notwithstanding that the February
4 memo stated that the institution was back to normal operations at that time. The weekend
work was paid at regular overtime rates rather than the enhanced overtime rate.
[30] The memo of February 4, 2016 refers to when the institution was “back to normal
operations”. That is arguably different language from the earlier memos that set out the PSC
approved condition for enhanced overtime as being payable in respect of “labour disruption
related work”.
[31] Although the January 8, 2016 memo did not (and could not) refer to an end date, all of
the other memos issued (with the exception of the February 4 memo) refer to January 17, 2016
at 11:59p.m. as the PSC approved end date for the enhanced overtime entitlement, subject to
the condition that it be in relation to labour disruption related work. And the January 8, 2016
memo, issued prior to this work being performed, uses that same language, stating that the
enhanced overtime is payable from January 7, 2016 for labour disruption related work.
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[32] The Sergeants were entitled to rely on the PSC approved terms and conditions of
employment as conveyed to them on January 8, 2016 in advance of this work being
performed. The information as to the PSC approved end date of the entitlement was conveyed
by the Director, Total Compensation Strategy Branch of Treasury Board Secretariat, by the
Deputy Minister of Correctional Services, and by the Assistant Deputy Minister of Institutional
Services in the subsequent memos of January 28, January 29, and February 1, 2016.
[33] I am satisfied therefore that the term and condition of employment in effect provided an
entitlement to enhanced overtime that continued until January 17, 2016 at 11:59 p.m. subject
to the condition that the Schedule 5 employees in approved facilities were engaged in labour
disruption related work. Whether such an employee was engaged in labour disruption related
work is a question of fact.
[34] The evidence before me establishes that those Sergeants who remained and worked in
CNCC until Sunday, January 17, 2016 did so in order to prepare the facility for normal
operations and were engaged in work that involved removing the ‘tent’ that had housed the
Sergeants during the labour disruption and cleaning that inmate area in preparation for its
normal use by inmates. There was no evidence as to how or why the reference to normal
operations was included in the February 4, 2016 memo. And, just because a labour disruption
may have ended, it does not necessarily follow that labour disruption related work has ended.
On the evidence, CNCC did not return to normal operations until Monday, January 18, 2016.
Based on the evidence, I am satisfied that the Sergeants who remained at CNCC through to
Sunday, January 17, 2016 continued to perform labour disruption related work.
[35] I find therefore that the Sergeants at CNCC who remained in the facility over the period
were entitled to the enhanced overtime rate for overtime work performed beyond January 15,
2016 at 1800 hours. That entitlement ended only as of Sunday, January 17, 2016 at 11:59 p.m.
[36] This application is hereby allowed to the following extent. I hereby order the employer to
pay to each complainant who remained in the facility throughout the period any overtime
balance owing in respect of time worked from Friday, January 15, 2016 at 1800 hours to
Sunday, January 17, 2016 at 11:59 p.m. I remit the matter of calculating the amounts owing
back to the parties. I understand this to be the difference between the regular overtime rate of
1.5x and the enhanced overtime rate of 2.5x.
[37] I will remain seized with respect to any issue arising out of the implementation of this
award.
Dated at Toronto, Ontario this 21stday of November, 2017.
_________________________
Marilyn A. Nairn, Vice-Chair