HomeMy WebLinkAboutP-2016-0624.Nesbitt et al.19-06-05 Decision
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Commission des
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PSGB# P-2016-0624
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE OF ONTARIO ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Nesbitt 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
COMPLAINANT
Craig Hillen
FOR THE EMPLOYER Peter Dailleboust
Treasury Board Secretariat
Legal Services Branch
Senior Counsel
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DECISION
[1] This group complaint was filed with the Board on June 21, 2016 by a number of
Deputy Superintendents at Central East Correctional Centre. It notes that they are
classified as Schedule 6 managers under the applicable Management Compensation
Plan (“MCP”). It alleges that the Employer had treated them in an unfair, unequal, and
inequitable manner in that the Employer had not exercised its authority to implement a
directive providing for the complainants’ fair and equitable compensation in respect of
periods of standby and on call. The complaint asserts that a historic provision of 5 days
of compensating time off was not fair or consistent compensation, as other Schedule 6
managers received this compensation without having to perform the standby/on call
duties. By way of remedy, the complainants primarily sought to be compensated in the
same manner that managers are compensated under Schedules 3, 4, and 5 of the
MCP, including retroactive compensation and damages.
[2] It was the position of the Employer that the complainants were effectively seeking
to be moved from Schedule 6 under the MCP to another Schedule in the directive and
that this Board had no jurisdiction to consider such a request or make such an order
based on the limitations set out in sub-section 4(2) 2 of O. Reg 378/07 made pursuant
to the Public Service of Ontario Act, 2006, S.O. 2006, c. 35, which provides:
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.
[3] The matter was scheduled before the Board on January 5, 2017. At that time,
discussions were held between the parties with two of the named complainants
representing the group. At the conclusion of those discussions the parties agreed to
adjourn this complaint sine die, asking the Board to follow-up in one year if the
complaint had not otherwise been re-scheduled or withdrawn.
[4] The Registrar of the Board attempted to follow up with Kevin Nesbitt, the lead
complainant, only to learn that Mr. Nesbitt had retired. Further to a telephone
conversation between the Registrar and Craig Hillen, the other representative
complainant attending on January 5, 2017, an email was sent to Mr. Hillen on April 15,
2019, seeking an update with respect to the status of the complaint. That email states,
in part:
A failure to respond to the Board by May 24, 2019, as to the status of this
complaint will result in the Board deeming the complaint to have been abandoned
and it will be dismissed.
[5] On April 16, 2019 Mr. Hillen sent an email to each member of the group of
complainants who remained active employees, which he copied to the Registrar. The
email was also sent to a number of individuals who were not named as complainants in
this complaint. While the contents of that email appear to reflect some
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misunderstanding of the discussions held on January 5, 2017, the email does make
clear that, unless the Board received a response by May 24, 2019 as to the status of the
complaint, it would be deemed abandoned and would be dismissed. Mr. Hillen went on
to state that he would not be taking the lead and asked that someone else do so. An
individual not named as a complainant in this complaint responded on April 16, 2019,
again copying the Registrar and advising that, while supporting the complaint, he was
unable to take the lead. No other correspondence has been received by the Board from
any of the complainants.
[6] Further to the Registrar’s notice and the deadline set out therein, and having
regard to the email, which evidences communication of that deadline, the Board has
received no advice as to the status of this complaint, nor any indication that any of the
complainants intend to pursue the matter. An indication of support from someone not
named as a complainant is insufficient.
[7] I find therefore that this complaint has been abandoned. It is hereby dismissed.
Dated at Toronto, Ontario this 5th day of June, 2019.
“Marilyn Nairn”
_______________________
Marilyn Nairn, Vice-Chair