HomeMy WebLinkAboutP-2007-1679.Mario Laforest et al.08-07-21 Decision
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P-2007-1679, P-2007-1680, P-2007-2078, P-2007-2167, P-2007-2168, P-2007-2169, P-2007-2468,
P-2007-2682, P-2007-2683, P-2007-2684, P-2007-2685, P-2007-2686, P-2007-2687, P-2007-2688,
P-2007-2689, P-2007-3392
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Grievor
Mario Laforest et al.
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services)
Employer
BEFORE Kathleen G. O?Neil Vice-Chair
FOR THE GRIEVOR
Mario Laforest, grievor
Robert Howes, grievor (April 17, 2008 only)
FOR THE EMPLOYER Ryan Conacher
Counsel
Ministry of Government and Consumer
Services
HEARING
April 16 and 17, 2008.
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Decision
This decision deals with a number of grievances from two Operational Managers (OM?s) at the
Toronto East Detention Centre (TEDC), which were scheduled to be heard together as they raise
similar issues relating to overtime and escort duty for OM?s. In their grievances, the grievors
claim entitlement to certain opportunities to work overtime and escort duty, and claim
compensation for the missed work.
P-2007-2468, Robert Howes - Failure to Appear
On the first date scheduled for hearing of the grievances of both Messrs. Laforest and Howes together,
Mr. Howes did not appear, and no communication was received by the Board, asking for an adjournment,
explaining the absence, or otherwise. Mr. Laforest attempted to contact him by phone, but was not
successful. Accordingly, the Board proceeded with Mr. Laforest?s grievance, and heard opening
statements and a full day of evidence. Mr. Howes appeared on the second day, and informed the Board
that a family matter had prevented him from attending, but did not elaborate or provide any further
explanation, including any comment on why he had not contacted the Board, the employer or Mr.
Laforest in any way on or before the previous day. The employer submitted that his grievance should be
dismissed as no sufficient reasons had been given for the failure to appear.
The most relevant portion of the Board?s rules of Procedures reads as follows:
13. Where any person properly served with a notice of hearing fails to attend the
scheduled hearing, the Board may proceed to dispose of the grievance in that person?s absence
and without further notice.
Mr. Howes was served with notice of hearing, and there is no suggestion that he did not
receive it. Although an adjournment may be granted instead of a dismissal where sufficient
reasons are provided to the Board for the failure to appear, that is not the case in respect of
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Mr. Howes? grievance. He has not provided any explanation for his failure to contact the
Board on or before the scheduled day of hearing, and was not available to be consulted by
telephone when Mr. Laforest tried to contact him on the morning of the first day of hearing.
In circumstances such as this, the Board has dismissed grievances in the past. See for
instance: Teevens and Ministry of Government Services, PSGB#P/0006/91 (Willes)and
Mitchell and Ministry of Community Safety and Correctional Services PSGB#P/1725/05
(Leighton).
It is incumbent on a grievor who wishes an adjournment to make some effort to contact the
Board and/or the other party prior to a hearing or risk having his or her grievance dismissed.
Here, the Board decided not to dismiss Mr. Howes? grievance on the day he did not appear,
preferring to see if any contact or sufficient explanation would be forthcoming. Although Mr.
Howes did appear the second day, the extremely general nature of his explanation is
insufficient to cause the Board to put his case over to another time. It would require redoing
most of the evidence of the first day of hearing in order to accommodate Mr. Howes?
grievance at this point, a cost and inconvenience to the Board and the other parties, for which
there is not sufficient justification before me. In the circumstances, his grievance is
dismissed.
The rest of the decision deals with Mr. Laforest?s grievances and the preliminary issue of the
content of the relevant terms and conditions of employment.
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The Issue: Is there an identifiable term or condition of employment relevant to this grievance?
The parties wished to deal first with the issue of whether the grievor had established a term or
condition of employment which the Board was in a position to enforce, and leave until a later
stage the issues of whether there had been a breach of such a term and, if so, what remedy should
flow for the several occasions of missed overtime or escort duty opportunities put in issue by the
grievances now before me, and others not yet scheduled.
The grievor?s position is that there is a term and condition of employment consisting of a
prescribed procedure and sequence for offering of overtime and escort duty to managers, which
includes, most significantly, a requirement to offer overtime to managers for community escort
duty prior to engaging police officers to do this work.
The employer?s position is that none of the procedures relied on by the grievor amounts to an
entitlement to overtime or escort duty at all, and that how overtime is distributed to managers is a
matter of the employer?s discretion, not subject to review by the Board except on the grounds of
arbitrary, unreasonable or discriminatory application. In particular, employer counsel submitted
that the documents issued as memos by the Assistant Deputy Minister and local Superintendent
do not have the status of terms and conditions of employment. While acknowledging that those
that are issued as policy or directives may have that status, counsel contends that there can be no
enforceable term or condition of employment unless it is clear enough to be enforceable.
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Mr. Laforest?s grievance is based on the assertion that the following documents, starting with the
most recent, set out terms or conditions of employment in regards to the assignment of overtime
and escort duty:
- November 12, 2007 memo from the Superintendent of the TEDC, Ms. Rose Buhagiar
to Operational Managers, entitled ?Overtime Hiring Process for Managers?
This was described by Superintendent Buhagiar in her evidence as an attempt to compile
the relevant provisions from a number of documents, and by the grievor as the sequence to
follow if overtime was available. It was clear from the Superintendent?s evidence that she
expects staff to follow the memo, as well as that the needs of the institution were
paramount in staffing decisions.
The principal points from this document relevant to these grievances are, in summary:
- in order to ensure that the overtime for managers is fairly distributed, the following
Overtime Hiring Process must be adhered to:
- provision of overtime availability forms by the OM?s
- when overtime is required, an orderly, documented sequence of contacting OM?s
until the shift is filled.
- if an OM believes they have been missed for an overtime opportunity, they are to
refer the issue to the Deputy Superintendent, Operations for review with the
Deputy Superintendent, Administration.
- If it is determined that the hiring process was not followed, there is to be an offer of
the first available shift to rectify the situation, but no remuneration from any variation of
the hiring process.
- Corrective action will be taken with managers who do not document and follow the
overtime hiring process.
This document only addresses the distribution of overtime among managers and says
nothing about hiring for escort duty.
May 17, 2005 memo from Assistant Deputy Minister, Adult Institutional Services,
-
Community Safety and Correctional Services, Mr. Gary Commeford, entitled ?Overtime
and Reassignment Protocols for Operational Managers?
This document directs all AIS Institutions to attempt to offer overtime shift assignments to
confirmed and Acting OMs who were already in the schedule prior to Correctional Officers
who are qualified to act as OMs and who have indicated their availability to work as well
as retired OMs who have returned to work on a contract. It states that this practice would
be followed as long as it did not conflict with meeting the Institutions? overall operational
requirements and financial objectives. It states that no compensation will be made for
missed opportunities, however, efforts will be made to provide a subsequent overtime
opportunity If the protocol was not followed.
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Although it is not clear that this document deals with the circumstances in dispute in these
grievances, it includes the idea that overtime opportunities are subject to operational
requirements and financial objectives, and that no compensation will be available for
missed opportunities.
- an October 2003 excerpt from the Adult Institutions Policy and Procedures Manual
entitled Assigning Community Escort Duties
This document contains a section entitled ?Procedures? which states that the OM assigning
community escort duties is to be guided by the principles of public safety, public
accountability and cost effectiveness and that if the use of overtime is required its
distribution must be fair and equitable. A later section, ?Assigning Staff?, provides that in
order to ensure a consistent and fair method in the assignment of community escorts, and
the backfilling of staff used for community escorts, institutions must use a sequence, which
starts with several steps specific to correctional officers and moves on to steps that are at
the heart of the grievors? claim, as it indicates that, in an emergency, the police are to be
usedafter exhausting OM resources. The latter steps in the process read as follows:
5. In an emergency, after exhausting the above procedures, use managers or acting
managers who have completed community escort training.
6. In an emergency, after exhausting the above procedures, use managers or acting
managers who have notcompleted community escort training.
7. After exhausting all above procedures, use other available resources (i.e. police).
8. In the event that a community escort commences without the required compliment of
correctional officers trained in community escorts, the
Operational Manager responsible is obligated to continue in attempts to
contact and assign trained community escorts to relieve the persons initially
assigned.
Note:
Institutions must not alter the above sequence. Managers must ensure accurate
documents/records are maintained of all attempts to staff hospital escorts.
June 18, 2001 Directive 08/01entitled ?Assignment of Community Escort Duties- Adult
-
Offenders?, addressed to Regional Directors ? Adult Institutional Services from the
Office of the Director, Operational Support and Standards
This document sets out a procedure which is very similar in content to the 2003 excerpt
from the Adult Institutions Policy and Procedures Manual referred to above. A
difference referred to in argument is that the list of considerations for the OM
assigning community escort duty includes the words: ?as well as ensuring the
institution?s operational requirements are met?.
Two other documents, negotiated between the employer and OPSEU, concerning overtime
and/or escort duty were also referred to in evidence and argument as potentially relevant to the
situation of OM?s as well:
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A document entitled ?Provincial Overtime Protocol? dated July 27, 2006, with an
-
October 6, 2006 covering memo to all staff from the Corrections Division of the
Provincial Overtime Protocol Sub-Committee of MERC (Ministry Employee Relations
Committee) and four editions of a Questions and Answers section, dated October 6 and
November 1, 2006, April 4 and October 17, 2007.
This document, with the stated intent ?to streamline the assortment of existing practices? in
various institutions, provides the distribution and call-in sequence for overtime for
Correctional Officers which ?clears the way for a computer-supported implementation of
both the Provincial Overtime Protocol and the Community Escort Protocol?. It does not
refer to managers directly except in their role of calling in bargaining unit people.
- July 11, 2004 Memorandum of Settlement between OPSEU and the Ministry with
reference to Grievance Settlement Board file #1753/99, relating to community escort
training and assignments with an Appendix as to procedures revised March 22, 2005.
The ?Procedures? appendix to this Memorandum of Settlement provides a detailed call-in
procedure for correctional officers, the last paragraph of which reads as follows:
Once the correctional officer resource is exhausted by following the
above steps, management reserves the right to utilize other resources
to ensure escort is completed. (Italics added)
The employer called evidence concerning this document from Daryl Pitfield, now Regional
Health and Safety consultant for the Ministry. A signatory to the July 11, 2004 Memorandum of
Settlement, he was then OPSEU?s provincial health co-chair and served on the community escort
sub-committee. Mr. Pitfield testified that the union did not envision Operational Managers as
part of the issue they were concerned with, as they considered community escort work to be
bargaining unit work rather than OM work.The union?s position at the time was that, beyond
the confines of the protocol?s provisions for members of the bargaining unit, it was in the area of
management rights to do what they thought necessary to engage community escorts. To his
mind, ?other resources? in the wording set out above meant whomever the employer chose to
call, police or OM?s included. It was his view that the July 2004 Memorandum of Settlement
superseded the October 2003 directive.
8
In cross-examination of Mr. Pitfield, Mr. Laforest referred to the OM job description that allows
the OM to use discretion as follows:
Plans, leads and manages all shift activities to ensure efficient and effective
operations, set priorities and manages workload, ensures that staff have adequate
support and resources, and exercises discretion to adjust routines/procedures as
necessary including in unusual, crisis or emergency situations as they arise.
Mr. Laforest also pointed out that it is part of the OM job to coordinate and control allocation of
staff including outside escorts, and to ensure fiscal responsibility in the use of overtime.
Although acknowledging that it was less expensive to use OM?s for community escort than
police, Mr. Pitfield said that police might be used for a number of reasons. He testified that
between the late 1990?s and 2006, police were used more than OM?s for community escort.
As to the term ?emergency?, Mr. Pitfield used the example of a lockdown situation where all
OPSEU staff were assigned to a post, which would give the employer the opportunity to use
managers not assigned to a post such as the duty manager or institutional training manager for
the escort assignment. The idea was that these managers, who would not normally be required to
oversee staff or run a shift, could be used in an emergency, where an instantaneous type of
response was needed, such as a case of heart attack, and a need to go to hospital immediately.
He thought emergency denoted a life threatening situation. He said it was not usual to call on
managers outside the institution itself for community escort duty and agreed with employer
counsel that it was not likely OM?s would be available for escort duty if they were not already at
the institution. However, he acknowledged that OM?s had been used for escort duty on some
occasions.
As part of the procedure for activating escort duty, OM?s are expected to fill out a form which
lists a sequence of contacts in which managers appear after correctional officers, and prior to
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?others?. In the context of the form, the parties were not in dispute that ?others? normally means
the police. The first instruction on the form is: ?Please ensure all steps are followed in
sequence.? When he first assumed his OM duties at TEDC, Mr. Laforest was told it was part of
his duties to complete this form each time he activated escort, including police. It did not appear
the form had been changed after the 2004 memorandum of settlement with OPSEU.
Superintendent Buhagiar testified that the forms are supposed to be filled out, but are not always.
She said that when police have been hired, the form generally indicates that no staff were
available, so police were hired.
Superintendent Buhagiar?s summary of the situation when police are used rather than OM?s, is
that it is mostly because the managers are not available, or when there are not enough OM?s to
run the institution, since escort duty can be contracted out to the police whereas running the
institution cannot be. Her basic message was that operational requirements have to be the
priority, and if those requirements are met the OM assigning the work could go ahead and hire
OM?s. She indicated that it made no sense to have managers at the hospital on escort duty, when
they were needed in the institution. The overtime availability sheet shows which shift an OM is
available for, not what post or position. However, it appears that when a manager is called to be
offered overtime, the information about what the assignment would be might be part of the
conversation, and might influence whether the shift was accepted. Once a manager is working,
whether on escort duty or otherwise, it was common ground that they could be ordered to take up
other duties, or return to the institution, if the need arose. It is also not in dispute that Ministry
and police personnel are not to be mixed in a single assignment.
Mr. Laforest also said that when it is an emergency, the OM will take anyone he or she can get,
as that is a situation beyond the OM?s control.However, when he is running the shift, and the
10
situation is within his control, he will use the prescribed steps which include calling managers
before police. Because it is less expensive to use OM?s to do escort duty than to engage the
police, Mr. Laforest sees it as part of his duty to be fiscally responsible to try to engage OM?s
before going to the police.
Submissions
The grievor Mr. Laforest argues that the evidence supports a finding that hiring OM?s prior to
police is the best practice and the expectation where overtime availability has been indicated
according to the required practice. Conceding that there is no obligation to give overtime, the
grievor?s case is based on the submission that when a need for overtime is identified, there is an
obligation to follow the procedure devised by the employer, including a requirement that OM?s
are canvassed prior to police for escort duty.
By contrast, the employer?s case rests on the assertion that the grievors are claiming the
enforcement of a promise that never existed, that the grievor has not established ?something akin
to a contractual term?, a term or condition of employment. Counsel submitted that in order to
establish a term or condition of employment there ought to be a statute or policy where the intent
is to establish a legal promise. As there is no statutory provision dealing with these issues, and
there is no clear promise in the employer?s view, the grievances should not proceed further as no
term or condition of employment has been established. Counsel invites a finding that there has
been no meeting of the minds of the parties on the points claimed by the grievors, and no intent
on the employer?s part to create a term or condition of employment.
In this respect, Counsel argues that to be a contractual term, it has to be clear, and that if it is not
clear, as in this case, one can look at other sources. In counsel?s submission, this include the
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Memorandum of Settlement from 2004, which informs the Board about the employer?s intent
even though it was negotiated with OPSEU rather than aimed specifically at OM?s. This
document provides that management reserves its rights to exercise its discretion and there is no
reference to managers? entitlement to escort duty or overtime in their agreements. Accordingly,
after the bargaining unit resource has been exhausted, there is no obligation to hire OM?s for
escort duty prior to police, in the employer?s view. Employer counsel also submits that it is
important to recognize that escort work is OPSEU bargaining unit work, which is a fact that
should assist in interpretation of the situation. To the extent the employer cannot engage OPSEU
members to do escort duty, the employer?s position is that it should have the unfettered
discretion to have the work done while ensuring the operational needs of the institution are met.
As a practical matter, in light of what counsel termed the ?myriad? of grievances of this nature
waiting to be scheduled, he suggested that it would be a colossal waste of resources to embark on
an examination of the exercise of discretion each time the police were hired to do escort duty. As
for the form the OM?s are required to fill out when activating escort duty, counsel invites a
finding that it was intended to aid OM?s in exercising their discretion, not to be a contractual
promise. The employer acknowledges that OM? s can be considered for overtime or escort duty,
but counsel underlines that the grievor has acknowledged that staffing decisions have to take
many factors into account, including safety, operational needs and cost effectiveness.
It is the employer?s position that the OM?s have never been promised expressly that they will be
considered before police or where this will all fit with considerations like cost and public safety.
Counsel also suggested that the fact that it is the OM?s themselves who exercise the discretion
over overtime and escort duty assignments means that the OM?s are in a conflict of interest as far
as these grievances are concerned, which counsel suggested was an indication that the right they
12
assert did not exist in the first place. It does not make sense, in counsel?s view, that OM?s would
have day to day control over a term and condition of employment.
Further, and in the alternative, employer counsel submits that any promise to canvass OM?s
before police was extinguished by 2004 because the practice has been that police are used more
than OM?s since then. Counsel observes that any express recognition of the possibility that
managers would be used for escort duty is coupled with the word ?emergency?. Further,
Counsel submitted that the word ?emergency? is too vague a word to be part of a contractual
term.
Conclusions
To start, it is appropriate to underline that there is no comprehensive written collection of the
terms and conditions of employment for managers and other provincial employees excluded
from collective bargaining, such as there is in a collective agreement covering unionized
employees. Some of the terms and conditions of employment for excluded employees are found
in the Public Service of Ontario Act and its regulations, and others such as pay rates are
sufficiently known that their content may not be in dispute, although their interpretation and
application may be. Here, we are in the situation where the parties are at issue over the existence
and/or content of the terms and condition of employment in relation to the assignment of
overtime and escort duty. While conceding that statute or policy established with intent to create
legal relations would establish a term or condition of employment, the employer argues that the
documents relied on by the grievor do not amount to such an enforceable promise.
Starting with the document with the broadest application, the 2003 excerpt from the Adult
Institutions Policy and Procedures Manual concerning community escorts, its terms set out the
13
statutory authority for its issuance, and read in a directive manner, stating that institutions must
not alter the sequence set out there for assigning staff, which clearly indicates a sequence which
includes using managers prior to police in an emergency. It is an employer generated document
which appears to establish rules which are intended to be adhered to in all institutions. On its
face it appears to be the kind of document conceded by the employer as capable of establishing a
condition of employment, and it appears to create one affecting operational managers, i.e. that in
an emergency, managers are to be used before police. This was also the case in the earlier
document from 2001. There was no evidence sufficient for me to find that it was not intended to
be adhered to, enforced, or to form part of the managers? terms and conditions of employment,
nor authority for that proposition. Thus, I conclude that it formed part of the managers? terms
and conditions of employment when it was issued in 2003. However, what is offered to the
OM?s in that document is limited to the portion of the process that states that in emergencies,
OM?s will be used in a sequence in which they appear before police.
The employer took the position that it is discretionary whether or not the employer offers
overtime or escort duty to managers, and therefore the only question for the Board is whether the
policy and procedures on overtime and escort duty are arbitrary, discriminatory or in bad faith.
The grievances do not claim that the policy and procedures are defective in that way; rather the
grievors ask for their application. Nonetheless, it is true that, other than those set out in statute,
many of the terms of the managers? employment, are set by the employer in its discretion,
including aspects as central to the employment contract as remuneration. However, once that
discretion is exercised, and terms and conditions of employment are communicated to employees
and accepted by them, they become enforceable, until and unless they are amended, changed or
revoked. Moreover, in the absence of some authority for the proposition, I am not persuaded
that employer policy documents cannot amount to terms or conditions of a manager?s
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employment or are unenforceable because the employer could have provided something
different. Nor does the fact that the employer can revise managers? terms and conditions of
employment render the current ones unenforceable.
All the evidence supports a finding that the employer?s discretion in regards to what personnel
will be used for escort duty and calling staff for overtime has been delegated to the OM?s, who
are required to take into account a number of factors in exercising that discretion, including the
safety of the inmates and staff in the institution, community safety, and cost as well as following
the protocols in place. As noted, counsel suggested that the OM?s are as a result in a conflict of
interest position concerning overtime and escort duty for OM?s. Although it is not inconceivable
that an OM?s exercise of discretion in a given instance could raise a conflict of interest, I am not
persuaded as a general matter on the material before me that the delegation of discretion to the
OM?s itself puts them in a perpetual generalized conflict of interest in regards to calling in other
OM?s for escort duty and/or overtime pursuant to a prescribed protocol.
Employer counsel argued further, that the sequence set out in 2003 concerning escort duty was
changed by subsequent events, including the negotiation of the settlement with OPSEU, which
left it up to the employer to turn to other resources after exhausting OPSEU staff, without
specifying a sequence of considering managers before police in an emergency or otherwise. It is
my view that the terms negotiated with OPSEU do not on their face alter anything applying to
OM?s in regard to any entitlement to escort duty. The only language in the settlement with
OPSEU which appears to affect managers, other than in their role in calling in bargaining unit
staff, clearly reserves to management the right to use other resources, i.e. other than the
bargaining unit, but does not prescribe anything further. It may be possible for agreements
between the employer and OPSEU to affect the terms and conditions of the employment of
15
managers, such as if work that had previously been done by OM?s had been agreed to be
reserved exclusively to the bargaining unit, but that is not what the documents in evidence
provide. Thus, I do not find that the terms of the agreements with OPSEU provide direction on
the terms and conditions of employment for managers relevant to this grievance.
Similarly, the decision of the Grievance Settlement Board dated September 12, 2007, Ontario
Public Service Employees Union (Megahy et al.)and The Crown in Right of Ontario (Ministry of
Community Safety and Correctional Services) GSB #2002-2103 (Brown) dealing with overtime
for correctional officers in the same institution, cannot determine this dispute as it deals with an
issue arising between OPSEU and the employer about the bargaining unit.Nonetheless, it sets
out some of the background of the subject of escort duty, including a decision of the Office of
Adjudication dated August 24, 1998 which stated that a minimum of two staff should be
assigned to accompany an inmate. The Megahy decision also serves to highlight that issues
concerning escort duty and overtime are quite important to many employees.
Counsel also argues that the 2003 document is not enforceable because it is too vague, especially
in its use of the word emergency. It is apparent from the evidence that its terms have given
difficulty in application, but I do not find them so unclear that one could state that its provisions
are void for uncertainty.
As noted, the evidence did not disclose anything sufficient to find that the 2003 directive was not
intended to create a term or condition of employment when it was issued. Further there is no
evidence that it has been revoked in the interim. Nonetheless, the general law about employment
contracts, especially those not governed by collective agreements, recognizes that the
employment relationship changes over time, and that conduct and practice can create or clarify a
16
term or condition of employment, whether written or oral. This is a question of fact to be
determined by the history of the relationship of the parties. See for instance, Rose v. Shell
Canada Ltd. (1965), 7 C.C.E.L. 234 (B.C.S.C.)
The evidence of the history between these parties shows that, although the agreements with
OPSEU did not themselves change things for the OM?s, there was some change in practice after
the agreement with OPSEU. Superintendent Buhagiar testified that prior to 2004, there had been
a preferential consideration of OM?s prior to police for escort duty, but that since that time, the
practice had changed so that the current intent was that operational needs were the priority. She
added that it had become the premise that the operational priority was for OM?s to be running the
institution rather than being out in the community doing escort duty. There was no evidence
about whether or how this change was communicated to OM?s. Nor did the evidence indicate
what the employer has communicated to the OM?s in recent years on the issue of how to handle
the decision of whether to turn to OM?s or police in any given situation. Nonetheless, Mr.
Laforest was clear that, when acting as OM responsible for activating escort duty himself, if
there was an immediately urgent situation, with no time to undertake canvassing of OM?s, he
would call the police. He would then try to arrange more economical relief for the police,
something his superintendent said she would expect as well. He stated that the responsible OM
should take everything into account, including the principles of public safety, and agreed that the
institutional needs take precedence. This indicates a fair amount of agreement about the
expected practice in a very urgent situation.
As noted, there was also evidence from Mr. Pitfield that he thought police had been called more
than OM?s in recent years for community escort duty, but this evidence did not deal with
whether these were all situations of the very urgent kind about which there seems to be
17
consensus that the police should be called. Nor did the evidence indicate the extent to which
police were called preferentially in routine or pre-scheduled situations where bargaining unit
personnel were not available or whether the practice is different at TEDC than other institutions
covered by the 2003 memo.
As noted above, the employer?s submission invites a finding that the practice since 2004 has
been that police are routinely called, such that, to the extent the 2003 policy created a sequence
requiring the OM?s be contacted before police, it has been extinguished by practice. The
evidence did indicate that OM?s are sometimes used for escort duty, but did not specify in what
circumstances. The other evidence supports a finding that in an emergency, at least of the ?911?
variety, the police will and ought to be called. The evidence did not make clear whether there is
any other kind of emergency where there has been or would be time to engage managers. It is
appropriate to emphasize that if there is not, then there is little or nothing of substance left to the
portion of the 2003 policy which contemplates using managers in an emergency prior to police.
In that case, the precedence articulated in 2003 and earlier for managers has been effectively
extinguished. It may be that the priority consideration for managers for escort duty was intended
to be for managers already at the institution but not assigned to a crucial post at the time, as
suggested in Mr. Pitfield?s example. There may be occasions when such managers are available
faster than police, but since two are required, and police and Ministry staff are not assigned
together, this may not normally be feasible. In any event, considering managers already at the
institution for escort duty does not seem to be Mr. Laforest?s focus concerning escort duty. His
grievances appear to be about occasions when he was not called in for overtime to perform escort
duty.
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Once the police have been called, there is the opportunity to relieve them by assigning other staff
as they become available. There is no evidence supporting a finding that this would still be
properly considered an emergency. Since there is no evidence or document supporting a finding
that OM?s are entitled to consideration prior to the police for escort duty in a non-emergency
situation, I do not find that to be part of the OM?s terms and conditions of employment.
Nonetheless, the superintendent indicated that if the operational needs were met, (and
presumably where no bargaining unit members were available in the necessary time frame) the
work could be offered to OM?s. However, there is no guarantee of this type of work.
The other key document relevant to these grievances is the superintendent?s 2007 memo entitled
?Overtime Hiring Process for Managers?, which amounts to an overtime assignment protocol.
There was nothing in the evidence which forms a sufficient basis for a finding this was not
intended to be a term or condition of the managers? employment, albeit perhaps a local one. The
Superintendent testified that she was attempting to consolidate directions from several sources
when she issued it, and that she expected memos to be followed. Further, the grievor accepted
that they ought to be followed, and did not challenge its sufficiency or propriety. It appears from
the evidence that the overtime process set out in the memo has been intended by the employer to
be followed for sometime, and that by its conduct and the practice at the TEDC it is a legitimate
expectation of the managers who work there that it will be followed as part of their working
conditions.
However, the Overtime protocol only comes into play where it is decided that hours should be
offered to OM?s as overtime. And very significantly in terms of remedy for this grievance, it is
clear that the overtime protocol provides no monetary remedy for missed opportunities. The
protocol contains a remedial process within its terms: an OM is to turn to the Deputy
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Superintendent who will consider the situation and offer an overtime opportunity if the protocol
has not been followed.
As for the May 17, 2005 memo from Assistant Deputy Minister Commeford, the evidence does
not support a finding that this does not amount to a term or condition of employment, but it is not
clear at this stage whether its terms are engaged by the fact situations put in issue by the
grievances.
To summarize then, on the evidence before me thus far in the proceedings, the following
documents provide terms and conditions of employment to the extent elaborated above, and
summarized here for Operational Managers, at least at TEDC:
- November 12, 2007 memo from the Superintendent of the TEDC to
Operational Managers, entitled ?Overtime Hiring Process for Managers?.
To summarize the content, OM?s are entitled to the benefit of the sequence for
offering overtime set out in this memo. This includes the provision that an OM
is to turn to the Deputy Superintendent for a decision as to whether the hiring
process was followed and that there is to be no monetary remedy for a missed
overtime opportunity.
- May 17, 2005 memo from Assistant Deputy Minister, Adult Institutional
Services, Community Safety and Correctional Services, Mr. Gary Commeford,
entitled ?Overtime and Reassignment Protocols for Operational Managers?
If any of the fact situations engages a situation of an assignment of overtime in
contravention of its terms, it may be pursued under the overtime protocol set
out above, with no monetary compensation for a missed overtime opportunity.
- The October 2003 excerpt from the Adult Institutions Policy and Procedures
Manual entitled Assigning Community Escort Duties.
This document provides for use of OM?s in an emergency prior to police, but is
no longer an applicable term or condition of employment to the extent that it
has been varied by practice to exclude very urgent situations such as ?911?
situations where there is no time to engage managers. If any of the fact
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situations involved in the grievances included what may be a rare emergency
situation where there was time to engage managers, but no effort was made to
engage managers prior to police, despite the availability of managers who were
not otherwise required for institutional needs, it may be pursued under this
policy.
On the material before me, OM?s have no entitlement to escort duty in a non-
emergency situation. Although there is no prohibition against offering such
work to managers where the appropriate procedures for bargaining unit
personnel have been exhausted, and the institutional needs for OM?s have been
met, there is no guarantee of such work in the terms and conditions of
employment established in the evidence.
Further, if the claim for escort duty involves a missed overtime opportunity, it
must be pursued under the overtime protocol, which provides consideration by
the Deputy Superintendent of offering a substitute opportunity, but no
monetary remedy for a missed opportunity. It is important to note that where a
grievor does not refer the matter to the Deputy Superintendent, there is no
remedy provided under the overtime protocol.
As the parties agreed to proceed just with the preliminary issue of the content of the terms and
conditions of employment, and they did not present evidence or argument on the fact situations
involved with the grievances, this decision does not grant or dismiss any of Mr. Laforest?s
grievances. The parties are directed to consider their positions on the outstanding grievances in
light of this decision and to discuss resolution where appropriate. If the grievor decides not to
proceed with any of his grievances, he is directed to notify the Board. If there is further need for
the intervention of the Board, either Mr. Laforest or the employer may ask the registrar for
hearing dates or request further direction or mediation from the Board.
st
Dated at Toronto this 21 day of July, 2008
Kathleen G. O?Neil, Vice-Chair