HomeMy WebLinkAboutP-2020-0022.Bryan.21-04-26 Decision
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Commission des
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PSGB# 2020-0022
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE OF ONTARIO ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Bryan Complainant
- and –
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE Marilyn Nairn Vice Chair
FOR THE
COMPLAINANT
Gerald Bryan, Nancy Zuliani, Michelle
Currie, Nancy Nicol, Carol Peterson,
Amanda Carruthers, Danuta Rasiewicz
FOR THE EMPLOYER
Braden MacLean (Counsel)
Treasury Board Secretariat
Legal Services Branch
Jennifer Charlton (ER Advisor)
Dean Dunne (Deputy Regional Director)
HEARING
March 30, 2021
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Decision
[1] This complaint is brought by Gerald Bryan, a Health Care Manager (“HCM”)
working with the Ministry of the Solicitor General (“SOLGEN”) at the jail in Sarnia. His
complaint is one of twenty-three complaints brought by HCMs across Ontario, each of
whom works in a correctional facility. Each complaint claims ‘temporary pandemic pay’.
Mr. Bryan’s complaint proceeded to hearing as representative of the complaints. The
other complaints have been held in abeyance pending the outcome of this complaint.
[2] Evidence and submissions were heard by videoconference and documentary
material was received. A number of other complainants attended the hearing, although
some were unable to remain throughout the proceedings. The following facts are
summarized from the evidence, including the documentary material filed.
[3] On April 25, 2020, in response to the public health threat of Covid-19, the Province
of Ontario announced temporary pandemic pay measures for certain front line workers.
This ‘pandemic pay’ was to be payable for a period of 16 weeks until August 13, 2020
and was to be calculated as an additional $4.00/hour to eligible workers, as well as an
additional lump sum payment for those eligible workers who worked more than 100 hours
per month. These pandemic pay measures applied to eligible public servants employed
by the Province as well as to eligible workers in the broader public sector.
[4] In the Province’s announcement published on April 25, 2020, eligible workers were
described as including, among others, staff working in correctional institutions and youth
justice facilities, as well as staff providing frontline clinical services. Eligible staff working
in adult correctional and youth justice facilities in Ontario included “nurses” and
“healthcare staff”.
[5] Subsequently, on May 29, 2020, Ontario Regulation 241/20 (the “Regulation”),
made pursuant to the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020
was promulgated and its application was made retroactive to April 24, 2020. The
Regulation identified who was eligible for pandemic pay as follows:
1. In this Order,
“eligible employee” means an employee who is entitled to receive temporary
pandemic pay in accordance with the document entitled “Eligible workplaces and
workers for pandemic pay” dated May 29, 2020 and available at
https://www.ontario.ca/page/eligible-workplaces-and-workers-pandemic-pay;
(“employé admissible”)
…
Application
2. This Order applies to the following, province-wide:
1. Eligible employees.
…
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[6] The document referenced in the Regulation, “Eligible workplaces and workers for
pandemic pay”, also dated May 29, 2020 provided as follows:
Temporary pandemic pay is designed to support eligible full-time, part-time and
casual employees. It does not apply to management.
To receive pandemic pay, you must work in both an eligible:
- role (i.e. be an eligible worker)
- workplace
(emphasis added)
[7] In a drop-down option to “learn more”, a section describing who is eligible stated:
Pandemic pay does not apply to management employees, including individuals in
managerial positions who were redeployed to work in eligible front-line positions.
[8] A memo dated June 6, 2020 from the Assistant Deputy Minister of the Institutional
Services Division of SOLGEN (the “ADM”) and distributed by Regional Directors
reiterated that the temporary pandemic pay applied to non-management front line staff.
Registered nurses working at correctional facilities, other than Heath Care Managers,
were eligible for and apparently received this pandemic pay. HCMs did not.
[9] Also, by memo dated April 28, 2020 from the ADM, Sergeants and Staff Sergeants
working in adult correctional institutions were informed that they were not eligible for
pandemic pay as set out in the Regulation, “despite working in congregate settings on the
front-line”. However, in recognition of their “commitment and sacrifices”, the Employer
announced a temporary measure applicable to Sergeants and Staff Sergeants in adult
correctional institutions that provided a lump sum payment to eligible employees actively
performing the duties of those positions during regularly scheduled hours. For a full-time
Sergeant or Staff Sergeant that additional compensation amounted to $890 for each 4-
week period over a 16-week period, which amount was pro-rated for those working less
than full-time hours.
[10] That memo also recognized the role of Sergeants and Staff Sergeants within
institutions as follows:
Sergeants and staff sergeants play a vital role in our adult correctional institutions
by ensuring the health and safety of fellow staff and inmates are maintained. You
are often called upon to lead the team, fill in the gaps and help other staff manage
crisis situations, often making split-second decisions under extreme stress and in
difficult conditions. As part of the front-line, you are on the floor working directly with
inmates, de-escalating volatile situations, and supporting your colleagues.
[11] Sergeants, Staff Sergeants, and HCMs are considered management personnel by
the Employer. Mr. Bryan does not dispute that, in his role as HCM, he is a member of the
management team.
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[12] Mr. Bryan testified that the Health Care Managers are akin to Sergeants and/or
Staff Sergeants in that they also work on the front lines and play a key role in ensuring
the health and safety of staff and inmates, as well as helping staff manage difficult
situations. The Health Care Managers lead the nursing team within the institution and
are required to be registered nurses. Mr. Bryan testified that the HCM must step in and
provide clinical care whenever there are nursing staff absences and/or staff shortages.
[13] In his request for reconsideration dated April 29, 2020 sent to the Premier and
copied to senior Ministry officials, Mr. Bryan stated that HCMs often worked beyond their
recognized hours of work and that recruitment of nursing staff was an ongoing issue,
leading to regular staff shortages, requiring the HCM to step in. He identified his concerns,
in part, as follows:
We, along with our staff are working tirelessly to manage the pandemic while
managing the complex care needs of our clients. ... We are part of the frontline as
well, which is not unique to acute care centres.
…
Correctional facilities are not considered acute care settings even though we deal
with medical emergencies daily, with limited technology and poor infrastructure and
medical equipment that is outdated. We are routinely challenged by outside acute
care agencies for assistance with managing the care of these individuals. Along
with the challenges in house, we must work with operational demands to
coordinate and facilitate healthcare services. During the Pandemic period outside
specialist referrals are limited leaving the maintenance of care entirely to the health
care staff to manage.
The individuals to whom we provide care often have difficulty understanding their
unique needs and have developed coping strategies that create challenges while
incarcerated. These include continued drug use, poor behavior and drug hoarding
which potential can lead to overdoses and compromised care.
The discharge of these individuals is difficult in normal situations but during the
Pandemic we need to guide and facilitate the isolation expectations, prior to
discharge to assist with stopping the spread of the virus. The contact and
facilitation of pandemic information, resources and education has tripled the
requirements for release. We are constantly advocating and planning for housing
but during this time of closures it makes arranging their care and follow up in the
community more complicated.
Additionally, as healthcare managers we have become the leads and “go to” for
infection control and prevention within our institutions. Daily we are bombarded
with dozens of questions, how to? when to? etc. Further, we have been handed an
additional role as educator for operations and staff daily, we communicate updates,
changes to processes and keeping everyone abreast of the fluidity of the crisis. If
a pandemic within our institutions was to take place the Healthcare Manager will
be imperative to manage the outbreak, protect the patients and staff.
…our work is unique and does not just include providing leadership, expertise and
guidance but requires hands-on care to ensure positive outcomes…
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[14] In response, by letter dated May 28, 2020, Deputy Solicitor General (“DSG”)
Richardson advised Mr. Bryan, in part, as follows:
In recognition of the incredible efforts of our management teams within institutions,
on April 6 2020, the government authorized overtime payments for management
staff who normally would not be eligible . This was an exceptional measure that we
were able to secure during the COVID-19 outbreak due to the critical support you
provide.
…
The quick response from Health Care Managers in implementing effective
precautionary measures to protect staff and clients within correctional institutions
from the spread of COVID-19 has been remarkable. I want to impress upon you
my continued appreciation of your steady leadership during these uncertain times,
and I wish to thank you for your continued commitment to corrections.
[15] Sergeants are eligible for overtime after their regularly scheduled 40 hours of work
per week. HCMs are not typically entitled to overtime. This measure entitled HCMs to
overtime after 44 hours of work per week. The HCMs normal hours of work are 36.25
hours per week, requiring that 7.75 additional hours per week be worked before any
overtime would be payable. It was not clear from the evidence whether HCMs are paid
on a salaried basis, meaning those 7.75 hours would not attract additional compensation
even at straight time pay, or whether those hours are paid at an additional but straight
time rate.
[16] In his viva voce evidence, Mr. Bryan reiterated that the HCMs are registered
nurses subject to the same standards of care and professional obligations as the nursing
staff. He stressed that HCMs are also on the front lines with regular and direct inmate
contact, and that in accordance with their professional standards as members of the
College of Nurses of Ontario they cannot and would not leave their clients unattended.
[17] Mr. Bryan testified that during the period of pandemic pay the HCMs were
spending long hours putting COVID-19 policies into place within their institutions, directing
staff, providing training in the use of PPE to correctional officers and Sergeants, being on
the units and working with inmates, and being as much exposed to the public health risk
as Sergeants and Staff Sergeants.
[18] In asserting that HCMs were and are on the frontlines, Mr. Bryan referred to a
memo from the DSG dated May 12, 2020, sent to all nurses and healthcare professionals
in Corrections in recognition of International Nurses Day. In that memo the DSG
expresses gratitude on behalf of Correctional Services to “each of you for the critical, life-
saving work you do on the frontlines in our correctional system”. Although hearsay, Mr.
Bryan also referred to a quote attributed to Ruth Dixon, Provincial Health Care Manager,
Corporate Health Care and Wellness Branch in SOLGEN, interviewed as part of National
Nursing Week, wherein she twice refers to institutional “frontline health care managers”.
[19] The Regulation also states the following:
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Payment of temporary pandemic pay to eligible employees
3. Despite any other statute, regulation, order, policy, arrangement or agreement,
including a collective agreement, the following rules apply with respect to
temporary pandemic pay:
…
3. No employer, tribunal, arbitrator, arbitration board, officer or court may expand
eligibility for temporary pandemic pay or require the payment of temporary
pandemic pay to employees who are not eligible employees.
* * *
[20] It was the position of the Employer that the Board had no authority over this
complaint in that the Complainant had not established that he enjoyed a term or condition
of employment entitling him to pandemic pay either under the Regulation or the pandemic
pay granted to Sergeants and Staff Sergeants working in adult correctional facilities. Nor
could the Board create such a term or condition of employment, argued the Employer. It
referred me to Ontario Regulation 378/07, Regulation 241/20, and the Board’s decisions
in Hugh MacDonald et al v Ontario (Community Safety and Correctional Services), 2014
CanLII 76836 and Johnston et al v Ontario (Community Safety and Correctional
Services), 2019 CanLII 65197. The Employer argued that while one might sympathize
with the claim, the Board has no ability to do anything other than enforce existing terms
and conditions of employment, and there was no term or condition of employment in
respect of temporary pandemic pay for HCMs.
[21] Both in evidence and in argument Mr. Bryan submitted that the HCMs were
properly considered frontline and essential workers and that, absent the HCMs in the
institutions during the period of the temporary pandemic pay, the correctional staff,
including Sergeants, would have floundered in trying to deal with the public health issues.
He argued that the HCMs were a key part of putting the pandemic response in place in
the institutions and that they had made at least the same commitment and had taken the
same risks as the Sergeants. He argued that no one ‘signed up’ to work during a
pandemic but that the HCMs had responded, understanding that they were a critical
resource during the health care crisis. He acknowledged that HCMs had been given a
limited right to overtime. He argued that, while grateful for that temporary recognition, it
essentially amounted to a symbolic gesture given its application. The HCMs, Mr. Bryan
argued, were asking that they be recognized as front line workers in the same way that
Sergeants and Staff Sergeants had been recognized.
[22] Mr. Bryan estimated that there were approximately 750 Sergeants and Staff
Sergeants made eligible for temporary pandemic pay. He noted that there were only 23
HCM across the province who could have been similarly included at a fraction of that total
cost, thereby providing the same measure of recognition and respect. He argued that the
HCMs had been unfairly and inappropriately denied this compensation.
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* * *
[23] There are two relevant temporary pandemic pay entitlements. The first flowed
from Regulation 241/20 which established the legal foundation for entitlement to the
temporary pandemic pay on a province-wide basis within the public sector and broader
public sector. The second was provided within the auspices of the Ministry of the Solicitor
General to Sergeants and Staff Sergeants working in adult correctional institutions across
the province.
[24] Regulation 241/20 is clear that, in order to be considered a worker eligible for
temporary pandemic pay under that Regulation, one must be entitled to receive that pay
in accordance with the document titled “Eligible workplaces and workers for pandemic
pay” dated May 29, 2020 and made available on the Province’s website. That document
states very clearly that temporary pandemic pay does not apply to management
personnel. Health Care Managers are part of the management staff in correctional
institutions. Mr. Bryan was unable to point to anything else creating an entitlement to this
pandemic pay.
[25] There is nothing before the Board from which one could find that Mr. Bryan, as an
HCM, was entitled to the temporary pandemic pay provided by Regulation 241/20.
Although HCMs work in an eligible workplace, they are not considered eligible employees
under the Regulation. Legally, it matters not whether Mr. Bryan is considered to be
working on the ‘frontlines’. All management personnel were excluded from eligibility for
that additional compensation.
[26] In the result, Mr. Bryan’s contract of employment does not include entitlement to
temporary pandemic pay as provided by Regulation 241/20 as the benefit of that
Regulation does not accrue to Mr. Bryan as a manager. Put another way, the temporary
pandemic pay provided under the Regulation does not form part of the terms and
conditions of employment for Mr. Bryan in his role as HCM.
[27] Section 3 of Regulation is also clear that the Board has no authority to require the
payment of temporary pandemic pay provided by the Regulation to someone who is not
otherwise an eligible employee.
[28] The second pandemic pay entitlement was that provided to Sergeants and Staff
Sergeants at adult correctional facilities. Again, that entitlement was made exclusive to
persons working in those positions. It did not extend to HCMs. As the Employer correctly
argued, Regulation 378/07, made under the Public Service of Ontario Act, 2006 as
amended, establishes the scope of this Board’s jurisdiction. Section 4 of that regulation
allows excluded employees to file a complaint concerning an alleged breach of an existing
term or condition of employment. The Board’s authority has consistently been described
as one of enforcing existing terms and conditions of employment, not creating new terms
of employment. As the decision in Hugh MacDonald et al, supra, states:
[17] As noted in earlier decisions of this Board, in order for the Board to be able to
award a remedy to a complainant, there must first be an existing term or condition
of employment related "to the facts complained of something that is part of the
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complainant’s contract of employment. This is something more than a belief that
something is unfair, no matter how deeply held. Secondly, there must be a breach
of that term or condition of employment, and thirdly, there must be a link between
that breach and a remedy that the Board is empowered to give. See, in this respect:
Antle v. Ontario (Ministry of Community Safety and Correctional Services), 2006
CanLII 30741 (ON PSGB) and Allen v. Ontario (Community Safety and
Correctional Services), 2009 CanLII 43639 (ON PSGB).
(emphasis added)
[29] It is perhaps unfortunate that, at no time, including at the hearing, was any rationale
provided for why the HCMs were temporarily allowed to claim overtime rather than being
included in the provision of temporary pandemic pay in the same manner as Sergeants
and Staff Sergeants working in the same adult correctional institutions. The temporary
pandemic pay applied to regular hours of work not overtime. In the result, every HCM in
the province filed a complaint before this Board.
[30] This Board, however, has no authority to create or introduce a term or condition of
employment that does not already exist in an employee’s contract of employment. The
Board’s role is one of enforcing existing terms. Having regard to all of the above, I find
that there is no term or condition of employment entitling Mr. Bryan to temporary
pandemic pay, either under Regulation 241/20 which does not extend to management
personnel, or, in the same manner as that introduced exclusively for Sergeants and Staff
Sergeants in adult correctional facilities.
[31] In the result, this complaint is hereby dismissed.
Dated at Toronto, Ontario this 26th day of April, 2021.
“Marilyn Nairn”
________________________
Marilyn Nairn, Vice-Chair