HomeMy WebLinkAboutP-2014-2682.Johnston et al.19-06-26 Decision
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PSGB# P-2014-2682
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE OF ONTARIO ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Johnston et al Complainant
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The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Kathleen G. O’Neil Chair
FOR THE
COMPLAINANTS
Norm Walker, William Johnston, Tracey
Gunton, Teresa Bramwell, Lisa Smith,
Jim Antle, Sal Lentini
FOR THE EMPLOYER
Peter Dailleboust
Treasury Board Secretariat
Legal Services Branch
Senior Counsel
HEARING Teleconference February 19, 2019,
written submissions completed April 5,
2019
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DECISION
[1] This decision deals with a preliminary objection to the complaint of a group of
superintendents and deputy superintendents at correctional facilities relating to a
claim for stand-by pay. The employer’s position is that the matter should not
proceed to a hearing on the merits as the complaint concerns the classification of
the complainants, a subject over which the Board has no jurisdiction. Further, the
employer argues that, even assuming the facts asserted by the complainants to be
true, there is not a viable or prima facie case to be heard. The complainants take
the contrary view.
[2] During a case management conference call, the parties agreed to make their
submissions on the preliminary objection in writing.
Factual Overview
[3] Both parties asserted facts, about which there was little dispute. On a motion such
as this, if there is any dispute, the facts asserted by the complainants are assumed
to be true and provable, although if the matter proceeds to a hearing, the evidence
introduced may lead to factual conclusions different from the facts asserted at this
stage.
[4] At the time of the complaint, the complainants were the Superintendent and
Deputy Superintendents at Central North Correctional Centre, and they are now
superintendents and deputy superintendents at various correctional institutions in
the province. In their positions, the Complainants are required to be on call for
rotating periods and while on call must attend the institution once per weekend to
do a tour of the facility and/or in the event of a major disruption.
[5] The Complainants are classified under the Institutional Management (AM)
classification, Schedule 6, under the Management Compensation Plan [MCP] in
the applicable Compensation Directive. The employer provides a lieu day in
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substitution when a Deputy Superintendent or Superintendent has to be on call
over a weekend. The employer submits that this is on a without prejudice basis,
while the complainants submit that the practice has become a term of their
employment as it is a longstanding practice.
[6] The Complainants assert that they are required to be immediately available on a
rotational basis, for recall to work and to perform the following duties:
- To be immediately available to respond to all issues that may arise at the
facility by phone or Blackberry.
- To report any contentious incidents to the Region immediately or within a
prescribed time limit that may be a risk to the ministry.
- To attend the facility in the event of a serious/emerging incident (ICIT,
Disturbance, Serious Injury/Death of Offender/Labour Disruptions).
- To provide direction and make decisions for the Operational Management
group after hours.
- To attend the institution, one day on the weekend/stat holiday (on a regular
day off) and tour the key areas of the institution.
- Not to consume alcohol; because of the decisions they are required to
make and the potential of having to drive to the institution.
- To remain in the geographic area of the institution with an expectation to
attend in a timely manner in the event of a serious incident.
The Parties’ Positions
[7] The employer takes the position that the PSGB is without jurisdiction to hear this
complaint because it is a classification grievance, and that in any event, it does
make out a viable case for the remedies sought. Accordingly, the employer
invites the Board to dismiss the complaints on a preliminary basis, without a full
hearing on the merits.
[8] The remedies claimed by the complainants are as follows:
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- That the Complainants' on-call be redefined as Stand-by;
- The Complainants be compensated as per the Compensation Directive as
Schedule 3,4,5 Managers;
- Retroactive compensation for Stand-by duties dating back to November 27,
2013;
- General Damages of $25,000;
- Establishment of a working group comprising of MCP Schedule 6
Managers assigned to Standby duties.
[9] The employer takes the position that the above remedial requests amount to a
request for overtime pay for any period the Complainants are doing tours or
staffing a post in the institution and to be paid standby or on-call for the
remaining period they are on call over a weekend, which is not a term or
condition of employment which applies to the complainants’ Schedule 6
classification. Rather, the employer submits that the standard overtime
provisions only apply to employees in the different classifications set out in
Schedules, 3, 4 and 5 of the compensation directive of Management Board of
Cabinet (MBC). According to section 10(3) of that MBC Compensation Directive,
under the heading “Standard Overtime”, the following wording appears:
Employees are entitled to compensation under this section if
they are employed in a class of position set out in Schedule 3,
4 or 5 and the class falls within the Management
Compensation Plan.
Since the wording is very specific as to which classifications the language
applies, and Schedule 6 employees are not mentioned in the above wording, the
employer argues that they are not entitled to standard overtime, as they would be
if their positions fell into Schedules 3, 4 or 5.
[10] By contrast, emergency overtime is not restricted to employees in Schedules 3, 4
and 5, but is specifically provided for in Section 13(1) of the Compensation
Directive, under the heading “Overtime During an Emergency”, as follows:
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This section applies,
(a) in case of a forest fire emergency; and
(b) in case of any other emergency that Management Board of Cabinet
declares to be an emergency requiring extraordinary measures to protect
public health, public safety or property.
The employer emphasizes that this section is clear that overtime is only available
in those specific emergency circumstances. There is no suggestion that the facts
of this case involve such emergencies.
[11] As for stand-by pay, the employer notes that it is also restricted to classes other
than Schedule 6, further to section 22(3) of the MBC Compensation Directive,
under the heading “Pay for Stand-By Duty”, which reads as follows:
Employees are entitled to compensation under this section if they
are employed in a class of position set out in Schedule 3, 4 or 5
and the class falls within the Management Compensation Plan.
[12] Additionally, the Employer’s position is that the Complainants’ grievance is
tantamount to a “classification” complaint: i.e., in essence, they are complaining
that they should be placed in a different schedule of the Compensation Directive
(Schedule 5) so that they can receive these stand-by and overtime entitlements.
[13] In support of its arguments, employer counsel refers to previous decisions of the
PSGB. For instance, in Johnston et al. v. Ontario (Ministry of Community and
Social Services), PSGB# P/0003/99, 1999 CanLII 13882 (ON PSGB), Vice-Chair
Leighton found that Schedule 6 employees had no general entitlement to
overtime pay or other premium payments such as standby pay. Only because
there was the authority of a specific Order-in-Council (OIC) declaring the 1996
OPSEU strike to be an emergency was there entitlement in those special
circumstances. Similarly, in Mously et al. v. Ontario (Ministry of the Solicitor
General and Correctional Services), PSGB # P/0068/96, dealing again with facts
related to the OPSEU 1996 strike, the PSGB found that Schedule 6 employees
were entitled to overtime compensation in an emergency situation, because it
was stipulated in a binding OIC. This was contrasted to the regular situation in
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which there is an employer discretion as to whether or not such compensation is
paid at all.
[14] The employer also relies on Section 3 (1) of the Compensation Directive which
states:
The hours of work per week which shall be performed by regular
employees of the classifications set out, …
(d) in Schedule 6, shall vary in accordance with the requirements of the
classification but shall not be less than 36¼ hours.
As well, the employer notes that the Job Description for Deputy Superintendent
and Superintendents includes “operation of the facility during rotational on-call
periods” and as such is a term and condition of their employment.
[15] Further, employer counsel submits that the overtime provisions of the
Employment Standards Act, 2000 (Part VIII) do not apply because the provisions
of that statute do not apply to a Superintendent or Deputy Superintendent
because they are persons “whose work is supervisory or managerial in
character”, referring to section 8(b) of O. Reg. 285/01, pursuant to the
Employment Standards Act “exemptions re Overtime Pay”).
[16] The Employer’s position is that in assigning on-call work, the Employer has not
contravened any statute, the Compensation Directive or any of its policies
concerning hours of work. Rather, in the employer’s view, its approach to the
issue was within its management rights to assign and compensate the work as it
did.
[17] Further, the employer submits that the Board has no free-standing jurisdiction to
review the exercise of management rights for reasonableness or effectiveness,
referring to the decision of the Grievance Settlement Board (GSB) in, Ontario
Public Service Employees Union v. Ontario (Environment), (Re Dobroff), 2008
CanLII 19779 (ON GSB) a leading management rights case, and the authorities
cited therein.
[18] In sum, the employer argues that, unless the complainants can point to a term or
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condition that fetters management’s right to assign the work here in question,
there is no viable basis on which this complaint can succeed. Consequently, the
employer requests that this matter be dismissed for failing to set out a prima facie
case that the Board can adjudicate.
[19] By contrast, the complainants ask that the matter be allowed to be considered on
its merits.
[20] The complainants do not accept the employer’s position that their compensation
for on-call duties is completely discretionary. Rather, the complainants maintain
that the existing approach of providing a day off for On-Call weeks is a ministry-
wide, long standing practice that pre-dates these complaints, and has thus
become a term and condition of their employment. The complainants note that
they and all On-Call Deputy Superintendents throughout the province have relied
on this as compensation for the requirement to be available and to tour
institutions outside of normal hours/weekends (something not required of all
Schedule 6 employees).
[21] This compensation arrangement was accepted by the Complainants prior to the
changes to On-Call reporting requirements which they maintain changed the
situation for the complainants from merely On-Call to Stand-By. In light of these
changes, this complaint was lodged. The complainants are of the view that
changes to policies and directives have effectively changed the requirement to
be available to return to the institution in the circumstances described above from
being “reasonably available” to being “immediately available”, which is the main
difference between the definitions of On-Call and Stand-By in the compensation
directive, which reads as follows:
Definitions from Compensation Policy Directive
On-Call - An employee is considered to be on call when the
employee keeps himself or herself reasonably available for
recall to work during a period (authorized by his or her
supervisor) that is not his or her regularly scheduled work
period.
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Stand-by - An employee is considered to be on stand-by
when the employee keeps himself or herself available for
immediate recall to work during a period (authorized by his or
her supervisor) that is not his or her regularly scheduled work
period.
[22] The complainants are of the view that the employer is not making the proper
distinction between the two concepts, as reflected in the employer’s submissions,
which they see as using the terms interchangeably. They do not accept that one
day off is fair compensation for the additional duties and responsibilities that are
now required. The complainants refer to specific policies in this regard, such as
the Restraint Chair policy which requires ongoing and constant monitoring of
their Blackberry devices to review inmate status and approve ongoing use of the
restraint chair every 2 hours and report to the Ministry’s Regional authorities as
required by the policy. As well, the complainants state that the employer’s IT
policy on the criteria for allocating Blackberry devices also contemplates that
employees approved for BlackBerrys are “required to be immediately contactable
via e-mail…and requires constant e-mail communication...”. This too exceeds
the On-Call requirement of being reasonably available and is more accurately
described by the Stand-By requirement to be immediately available, in the
complainants’ submission.
[23] The complainants also observe that failure to meet these new Stand-By
requirements has attracted performance management measures from the
employer. The complainants summarize the situation as having gone from being
reasonably available for call-back to sleeping with the Blackberry by the bed.
[24] In support of their contention that the demands have increased, the complainants
filed the following directives and policy documents, which I have carefully
considered:
- Inmate Incident Reporting Manual, dated August 2013
- Compensation Directive, dated January 27, 2014
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- ISPP [Institutional Services Policy and Procedures] Manual excerpt -
Priority 1 Requirement for Reporting Within First 24 hours, dated
December 24, 2013
- ADM [Assistant Deputy Minister] memo April 29, 2013, re revised inmate
reporting processes
- Restraint Chair Instructions, Timeframes and Responsibilities
- BlackBerry policy: Correctional Services Handheld device Policy
- Classification and Position Administration Directive, effective November 1,
2012
[25] In the complainant’s view, through these operational policies and memoranda,
the employer has changed the work, workload and responsibilities of the
Complainants in relation to the On-call function so that it should be considered to
be standby. Further, the complainants maintain that the increased workload and
responsibilities involved in their on-call function have been imposed by the
employer without regard to the employer’s compensation practices (documented
or otherwise).
[26] The Complainants also contend that the current treatment of compensation for
on-call or stand-by duty points to a violation of compensation policy by the
employer and/or a neglect of duty by the MBC in not exercising its authority to
determine other remuneration. Reference is made to the Public Service of
Ontario Act, 2006, [the PSOA], Section 33, which provides as follows:
Salary or wage ranges
(2) The Management Board of Cabinet may, by directive, determine salary
ranges or wage ranges for public servants appointed by the Public Service
Commission. 2006, c. 35, Sched. A, s. 33 (2).
Other remuneration
(3) The Management Board of Cabinet may, by directive, determine other
remuneration, including benefits, for public servants appointed by the
Public Service Commission. 2006, c. 35, Sched. A, s. 33 (3).
Other terms, conditions of employment
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(4) The Management Board of Cabinet may, by directive, establish other
terms and conditions of employment for public servants appointed by the
Public Service Commission and for deputy ministers. 2006, c. 35, Sched.
A, s. 33 (4); 2009, c. 33, Sched. 17, s. 10 (5).
[27] In response to the Employer’s position that the Board lacks jurisdiction because
this complaint amounts to a request for overtime pay for any period the
Complainants are doing tours or staffing a post in the institution and to be paid
standby or on-call for the remaining period they are on call over a weekend, the
complainants maintain that they are not seeking overtime but rather appropriate
compensation for Stand-By duties.
[28] Further, the complainants reject the suggestion that their complaint should be
seen as a classification dispute, or a request that the Board review their
classification. Rather, the complainants dispute the assignment of duties that are
not associated with their position, namely the additional duties laid out in
operational policy documents and memoranda and not in their job descriptions.
[29] Additionally, the complainants note that, during the period of time since the filing
of this grievance the employer has struck a committee of senior managers to
review and address the concerns raised in this grievance and to make
recommendations to MBC regarding compensation for Schedule 6 managers.
Thus far no information has been provided about this process or its outcome.
[30] The complainants disagree with the employer’s statement that there has not
been a contravention of policies. Stand-By duties have not been articulated in
the complainants’ job descriptions but rather added by placing expectations in
Operational Policies and Memoranda from Assistant Deputy Ministers, which
they argue is a practice in violation of policy and contrary to the Classification
and Position Administration Directive which requires “that Management creates
positions as it organizes work and the position’s duties and responsibilities are
determined and described in a job specification. All positions must be described,
evaluated and classified.”
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[31] The complainants rely on the Board’s recent decision in Boucher v Ontario
(Community Safety and Correctional Services), PSGB# P-2017-3935, 2018
CanLII 119631 (ON PSGB) to support their request that this complaint be
allowed to forward to a full hearing.
Considerations and Conclusions
[32] The Board’s rules allow consideration of motions such as the one brought by the
employer in this case. Rule 12 reads:
Where the Board considers that a complaint does not make out a case for
the orders or remedies requested, even if all the facts stated in the
complaint are assumed to be true, the Board may dismiss the complaint
without a hearing or consultation. In its decision the Board will set out its
reasons.
[33] The issues arising in respect of the above-noted facts are as follows, which will
be dealt with in turn:
a) Is this a complaint about classification?
b) Have the complainants established a viable case in respect of their
claim to stand-by pay?
c) Have the complainants established a viable case in respect of their
other claims in respect of call-in or stand-by duties?
a. Is this a complaint about classification?
[34] There is no doubt that the PSGB lacks subject-matter jurisdiction over
classification grievances. The relevant statutory provisions from Regulation
378/07 under the PSOA states:
Complaint about a working condition or a term of employment
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4. (1) Subject to subsection (2), a public servant who is aggrieved
about a working condition or about a term of his or her employment
may file a complaint about the working condition or the term of
employment with the Public Service Grievance Board,…
(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.
[35] As articulated most recently in Boucher v Ontario (Community Safety and
Correctional Services), 2018 CanLII 119631 (ON PSGB), however, not all
references to classification in a complaint before the PSGB put the matter
outside the Board’s jurisdiction. Rather, in the Board’s jurisprudence, “class of
position” has been interpreted as a reference to the class, or classification, to
which an employee has been assigned and which determines, among other
things, their pay range. Rather than excluding all disputes about the assignment
of duties and responsibilities, subsection 4(2)2 of Regulation 378/07 says that
“the assignment of the public servant to a particular class of position” cannot be
the subject of a complaint to this Board. This has been understood to remove
from the Board’s jurisdiction complaints about being assigned to a certain
classification, rather than another, such as where a complainant is seeking a
decision to the effect that he or she has been assigned to the wrong
classification. See, also, Hasted/Berezowsky v. Ontario (Community Safety and
Correctional Services), 2015 CanLII 7473 (ON PSGB); Courchesne-Godin et al
v. Ontario (Children and Youth Services), 2017 CanLII 89957 (ON PSGB), Ilika v
Ontario (Community Safety and Correctional Services), 2014 CanLII 76834 (ON
PSGB) and Doyle v Ontario (Municipal Affairs and Housing), 2018 CanLII
109219 (ON PSGB).
[36] In this case, the complainants are not suggesting they should be assigned to a
different classification. They are disputing one aspect of their remuneration,
relating to on-call or stand-by duties. Employer counsel accurately observes that
the remedy claimed, insofar as it relates to a claim for stand-by pay pursuant to
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the compensation directive, is a claim for a provision pertaining to a different
classification. This fact has consequences which will be discussed below, but
does not turn this complaint into a complaint about the “assignment to a
particular class of position”. Assignment to a different class of position would
entail a change to all the terms and conditions of employment of the alternate
classification, rather than just one.
[37] Accordingly, I do not find this complaint to be a classification grievance which is
beyond the Board’s jurisdiction.
b. Is there a prima facie case in respect of stand-by pay?
[38] As noted above, the complainants argue that the evolution of their duties to
return to the institution has transformed their on-call duties into stand-by, as
defined in the applicable compensation directive. The facts asserted by the
complainants certainly make out an arguable or prima facie case that they are
required to be immediately available for return to the institution, in a number of
circumstances, and of an increased emphasis on timely reporting of serious
incidents involving inmates or staff. However, that is not enough to entitle them
to the compensation set out in the directive referred to, as it is explicitly limited to
employees in different classifications than the complainants.
[39] Therefore, I accept the employer’s position that the complainants have not made
out a prima facie case for entitlement to stand-by pay under the applicable
compensation directive. More generally, the complainants have not identified a
term or condition of employment pertaining to their own Schedule 6
classifications which entitles them to a specific type of compensation for stand-by
or being immediately available to return to the institution. If such a term had
been identified, the Board could enforce it. However, the Board does not have
the power to create a new way to compensate the complainants for stand-by or
intensified call-back duties.
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c. Is there a prima facie case in respect of other remedies claimed?
[40] The other elements of the complaint are summarized in the complainants’
submission that they are seeking appropriate compensation for the stand-by
duties required of them. They note that a committee was formed to look into the
issue but that no information has been forthcoming as to the status of that effort.
This aspect of the submissions made by the complainants is an indication that
the nub of the complaint is that the complainants are of the view that they are not
sufficiently well compensated for the intensification in demands when they are on
stand-by or on-call. Although this position is very understandable in light of the
facts asserted by the complainants, the PSGB does not have the mandate to set
better compensation for complainants, or to require the employer to do so.
[41] In respect of this latter point, the complainants note that the PSOA has provisions
giving the employer the right to determine salary and other remuneration by
directive, but that they have not done so in respect of on-call or stand-by for
Scheduled 6 managers. The provisions in question indicate that the employer
may make such provisions but does not require the employer to make any
particular provisions. Further, it cannot be said that the employer has made no
provision for pay for on-call or stand-by duties. The thrust of the complaint is that
the current provisions are insufficient. This does not amount to a complaint that
has a reasonable likelihood of success. It may be that the committee that has
been struck will find a new approach to compensation for these duties, or that the
employer will take a different approach in the future towards the compensation of
Schedule 6 call-in or stand-by duties. In the interim, the material before the
Board does not establish a specific provision applicable to Schedule 6
employees that the Board is in a position to enforce.
[42] It is certainly open to the employer to consider the complainants’ request that a
working group of Schedule 6 managers assigned to stand-by duties be
established, but without the identification of an existing term or condition of
employment that would require this to occur, the PSGB does not have a viable
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basis to order the employer to do so.
[43] In their original complaint, the complainants mention the fact that the history of
wage freezes has contributed to wage compression with subordinates as well as
poor morale, and that inconsistencies in compensation among the management
group are seen as unfair. Similarly, they view the expectation that some
managers work during their time off without further compensation as inconsistent
with current employment standards. Further, the Ministry has identified a serious
deficit in succession planning, which the complainants see as a result of the fact
that the combination of the workload and compensation package for managers at
their level is not appealing to candidates in lower level classifications. These
concerns are completely understandable, but the Board is not in a position to
remedy them without a pre-existing term of employment that would require them
to be addressed in a specific way.
[44] I have carefully considered the other submissions made by the complainants as
well, but do not find that they identify a viable case with a prospect of success
either. For instance, as noted above, the complainants see it as a contravention
of the Classification and Position Administration Directive that stand-by duties
have not been articulated in their job descriptions but rather added by placing
expectations in Operational Policies and Memoranda from Assistant Deputy
Ministers.
[45] The complainants cite wording from the employer’s Classification and Position
Administration Directive which states “that Management creates positions as it
organizes work and the position’s duties and responsibilities are determined and
described in a job specification. All positions must be described, evaluated and
classified.” However, the complainants have not identified any term or condition
of employment that requires the employer to put all details of their duties in the
job description, or that the employer has no right to modify procedure or policy
pertaining to the general statements in the job description. The complainants did
not dispute that “operation of the facility during rotational on-call periods” was
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part of their job description, so that the Board does not find that this aspect of the
complaint has any chance of success, in light of the undisputed duties of
Schedule 6 managers related to giving managerial direction when on-call.
[46] The complainants also rely on the Board’s recent decision in Boucher v Ontario
(Community Safety and Correctional Services), PSGB# P-2017-3935 2018
CanLII 119631 (ON PSGB) to support their request that this complaint be
allowed to go forward to a full hearing. There are definitely similarities between
the complaint that was allowed to proceed to a hearing in the Boucher decision,
cited above, and this complaint. They both relate to on-call duties for Schedule 6
managers, and what is or is not part of the job description at that level. However,
there are important differences which explain why that complaint was not
dismissed on a preliminary basis, whereas this one will be. Most importantly, Mr.
Boucher was not disputing his entitlement under the Compensation Directive for
overtime and stand-by time. Rather, he requested that the employer cease the
practice of assigning him the work of a Sergeant during his on-call rotation,
because of special training and skills that were required for that work and the
safety implications of the practice.
Summary
[47] In summary, the employer’s motion is successful because the Board finds that,
although this is not a classification grievance, it does not make out a viable case
for the remedies claimed, even assuming all the facts stated in the complaint to
be true.
[48] For the reasons provided above, the complaint is dismissed.
Dated at Toronto, Ontario this 26th day of June, 2019.
“Kathleen G. O’Neil”
_______________________
Kathleen G. O’Neil, Chair