The URL can be used to link to this page

Home My WebLink AboutP-2023-02648 Cornish and Beattie 24-06-07 DecisionPublic Service Grievance Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission des griefs de la fonction publique Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 PSGB# P-2023-02648; P-2023-02650 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE OF ONTARIO ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Cornish & Beattie Complainant - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Brian Smeenk Chair FOR THE COMPLAINANTS Samantha Cornish Roderick Beattie FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel SUBMISSIONS Employer: February 12 and March 18, April 5 and May 6, 2024 Complainants: March 13 and May 6, 2024 - 2 - DECISION [1] The Complainants, Samantha Cornish and Roderick Beattie, were both Sergeants at the Toronto South Detention Centre. It is operated by the Ministry of the Solicitor General (“the Employer”). In these applications under The Public Service of Ontario Act, 2006 1 , the Complainants challenge their treatment in relation to the Ministry’s restructuring of certain classifications, including the Sergeant position. [2] While filed as individual applications, as they are fundamentally the same, they have been heard and argued together. At a Case Management Conference dealing with both applications, held on January 21, 2024, counsel advised that the Employer intended to make preliminary objections regarding the Board’s jurisdiction to hear these applications. A process was arrived at for completing the Employer’s Response, coming to agreement on the facts and making written submissions regarding the Employer’s jurisdictional objections. Those submissions have now been completed. This decision thus deals with the Employer’s preliminary objections to these applications being heard by the Board. THE NATURE OF THESE COMPLAINTS [3] In their final, reply submissions, the Complainants helpfully summarize what they are complaining about. They boil their complaints down to three points, which I will paraphrase here: a. The Employer reneged on and violated an agreement it made with both Complainants when they each responded to the Employer’s letter dated January 30, 2023 by making a “final and binding” election to remain in the Sergeant classification and then be reclassified as Correctional Supervisor, i.e. Corporal; b. They were required to compete in an unfair process for the Corporal position, a newly-established position in the bargaining unit represented by the Ontario Public Service Employees’ Union (“OPSEU”); and c. The entire process of the organizational restructuring since January 2023 was not honest, transparent or governed by integrity, authenticity or demonstrated accountability, thus violating various of the Employer’s policies including Employment Policy, its Code of Conduct and Professionalism, and a document entitled, “Operational Leadership Behaviours.” 1 S.O 2006, c.35, Sched. A - 3 - [4] The Complainants emphasize that their applications are not grievances about being appointed to a particular class or position, but rather their grievances, “reference procedural violations of the terms of our employment.” THE PRELIMINARY OBJECTIONS [5] The Employer submits that, as the Complainants were, at the time of their applications, complaining about being re-assigned to the Staff Sergeant classification, such a complaint is precluded by section 4(2) of Ontario Regulation 378/07 (“the Regulation”). That section circumscribes the Board’s jurisdiction. It provides that, “The assignment of the public servant to a particular class of position,” cannot be the subject matter of a complaint. Insofar as the Complainants had been seeking an order assigning them into the OPSEU bargaining unit position of Corporal, the Board does not have the remedial power to so order. The Board’s jurisdiction is limited to enforcing existing terms and conditions of employment and cannot review or create new terms and conditions, submits the Employer. [6] The Employer denies the Complainants’ assertion that the election forms referenced above created a binding term and condition of employment that the Board could enforce or remedy. The “final and binding” language in the forms was inserted to communicate that the employee’s decision, once made, was irrevocable by that person. The Employer could not foresee the later decisions made by the Grievance Settlement Board (“GSB”). The GSB’s later decision requiring that competitions be held for the newly-created position of Corporal in the OPSEU bargaining unit meant that the Employer had to amend its approach. As a result of that decision, it could not fulfill the Complainants’ election to accept that bargaining unit position, without requiring them to compete for it pursuant to the OPSEU collective agreement. The Employer denies any allegation of bad faith on its part. [7] Regarding the Complainants’ allegations of unfairness, the Employer submits that the Board’s jurisprudence makes it clear that it will not hold a hearing, “to determine issues of fairness or that the Employer could have done something in a different fashion.” The Board’s jurisdiction is limited to interpreting current terms and conditions of employment. For the Complainants, that question is whether their terms and conditions of employment as Staff Sergeants were being applied appropriately. No facts have been asserted that they are not, argues the Employer. - 4 - THE ISSUES [8] The preliminary issues raised by the parties can best be addressed in the following order: a. Does section 4(2) of the Regulation mean that the Board is without jurisdiction to hear these complaints? b. Can the Board consider the part of the Complainants’ grievance about being required to participate in what they allege was an unfair competition for the Corporal position after having previously, irrevocably elected to accept that position? Do the applications make out a prima facie case for damages in this regard? c. Does the Board have jurisdiction to consider the Complainants’ allegations that the restructuring was carried out in an improper manner, in violation of various of its employment policies? [9] For the reasons that follow, I have concluded that the Employer’s preliminary objections must be dismissed. The Board has jurisdiction to hear most elements of these complaints. BACKGROUND FACTS [10] The relevant facts are not in dispute. For the sake of clarity and completeness I will expand to some extent on the statements of fact that the parties have agreed upon by referencing other facts set out in the documents admitted into evidence on consent. [11] Protracted litigation occurred before the Ontario Labour Relations Board (“OLRB”) in respect of efforts by the Public Service Association of Canada (“PSAC”) to represent Sergeants in the Employer’s Corrections division. The OLRB ruled2 that if Sergeants were deemed not to be managers pursuant to the traditional management function test, then either OPSEU or Association of Management, Administrative and Professional Crown Employees of Ontario (“AMAPCEO”) must represent those positions as a result of restrictions within the Crown Employees Collective Bargaining Act, 1993.3 [12] On February 24, 2022, the GSB issued the decision of Arbitrator Brian McLean (“McLean Decision No. 1”)4 The arbitrator found that AMAPCEO had relinquished 2 Public Service Alliance of Canada v. The Crown in Right of Ontario, 2017 CanLII 51086 (ON LRB). 3 S.O. 1993, c. 38. 4 Association of Management, Administrative and Professional Crown Employees of Ontario (Association) v Ontario (Solicitor General), 2022 CanLII 31316 (ON GSB). - 5 - its bargaining rights for the Sergeant and Staff Sergeant cadre. He found that any such rights were assumed by OPSEU as the bargaining agent for all employees employed at correctional institutions. [13] The issue of whether the Sergeant position was incorrectly excluded from the OPSEU bargaining unit for being supervisory or managerial, was left for future determination. Arbitrator McLean referred the matter back to the Employer and OPSEU to jointly address. [14] On May 5, 2022, the Employer announced that it had begun an organizational review of the supervisory and management functions within the correctional system, as a response to McLean Decision No. 1. [15] On November 2, 2022, the Employer announced the result of the organizational review. It advised staff of a restructuring of the management level, introducing a supervisory level within the Institutional Services Division of the Employer. More particularly, the Employer stated that, “In this new structure, the current Sergeant rank will no longer be utilized, and the existing responsibilities will be shared by a new position, the Correctional Supervisor, and a strengthened Staff Sergeant complement.” [16] On December 14, 2022, the allocation of Staff Sergeant and Corporal (I.e. Correctional Supervisor) positions was announced. All together there had been 620 Sergeant and Staff Sergeant positions, out of which 572 were Sergeant and 48 Staff Sergeant positions. 572 Sergeant positions were eliminated, and the Staff Sergeant positions were inflated from 48 to 438. 182 Corporal positions were created within the OPSEU bargaining unit. [17] On January 30, 2023, “Option Letters” were sent out to Sergeants asking them to choose between being assigned to a Staff Sergeant or a Corporal position. They also had the option to resign or retire from the Ontario Public Service. They were given twenty business days to make their decision. [18] In their election packages, the Complainants were required to check, sign and date one of the three options. Each option was expressly stated to be “FINAL AND BINDING”. (emphasis in the original). “Option1” was worded as follows: I elect to remain in my Sergeant position which I understand will be reclassified to a Correctional Supervisor position in the OPSEU-COR bargaining unit at Toronto South Detention Centre. I understand that this selection is FINAL AND BINDING. - 6 - [19] At the bottom of the election form, the following passages appear: “If you do not respond to this letter, you will be deemed to have selected Option 1 (elect to be reclassified to a Correctional Supervisor position in the OPSEU-COR bargaining unit at Toronto South Detention Centre). All elections at Toronto South Detention Centre will be considered aggregately to ensure that operational needs of each institution are met. Effective dates of new assignments will be determined by the Ministry at a future date. (emphasis in the original) [20] Both Complainants chose or were deemed to have chosen Option 1. Ms. Cornish signed and dated her option form February 27, 2023 and submitted it. Ms. Beattie did not and received a letter dated March 6, 2023 from the Employer stating in part as follows: Accordingly, you have been deemed to have selected Option 1 (elect to be reclassified to Correctional Supervisor position in the OPSEU-COR bargaining unit at Toronto South Detention Centre) The effective date of this change will be communicated to you at a later date. [21] On June 27, 2023, the GSB issued another decision of Arbitrator McLean (“McLean Decision No. 2”)5. It dealt with OPSEU’s contention that the Employer was in violation of its collective agreement when it purported to directly assign individuals including Sergeants into the newly-created Corporal position. Arbitrator McLean ruled that the Employer had no right to do so and upheld OPSEU’s grievance. The Employer was required to respect the job posting provision of the OPSEU collective agreement, which would enable OPSEU members to apply for the new positions along with the non-union Sergeants. [22] By way of letters to the Complainants dated October 31, 2023, the Employer announced that no choice between the two options would be available to the Sergeants anymore. It was no longer able to offer the Corporal position in the OPSEU bargaining unit to those who had opted for that. The Complainants and other Sergeants were told that, while they could compete for the Corporal positions through the competitive process, if there were no such positions available to an 5 Ontario Public Service Employees’ Union v Ontario (Ministry of Children, Community and Social Services and the Solicitor General), 2023 CanLII 61433 (ON GSB) - 7 - individual, they would be automatically reclassified as a Staff Sergeant in their home institution. The precise wording of the relevant part of the letter is as follows: As a result of the above-noted GSB decision, the Ministry is unable to reclassify you to the Corporal position in the OPSEU-COR bargaining unit. As such, regular (classified) permanent Sergeants (M07) that previously elected, or were deemed to have elected, to be reclassified to a Corporal position, will now remain as managers and will be directly assigned to the Staff Sergeant (M08) position at their home institution upon implementation of the new structure. If you remain interested in working as Corporal, please be advised that a job advertisement for vacant positions will be posted in the near future and you are welcome to apply and compete through that process. Offers for permanent Corporal positions will be made prior to implementation of the new organizational structure. Please see the attached poster regarding resume and interview prep sessions offered through the Strategic Business Unit. [23] That was the status of the situation at the time the Complainants filed their respective applications in December 2023. However, both Complainants applied for the Corporal positions through the competitive process as the October 31 letter had invited them to do. Both were successful and now occupy that position. ANALYSIS & DECISION The First Issue: Does Section 4(2) of the Regulation Bar These Complaints? [24] The Employer relied on section 4(2) of the Regulation to argue that the Board does not have jurisdiction to consider the complaints. While the circumstances have changed to some extent because the Complainants were successful in achieving the Corporal position after filing their applications, this ground for the preliminary objection is in my view without merit regardless of that change of circumstances. [25] Sections 4(1) and 4(2) of the Regulation provide in material part as follows: 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, (a) if the public servant is eligible under sections 5 and 7 to file such a complaint… (2) The following matters cannot be the subject of a complaint about a working condition or about a term of employment: - 8 - … 2. The assignment of the public servant to a particular class of position. [26] The question therefore is whether the subject matter of the complaints is about a working condition and, if so, whether it is about the assignment of the Complainants to a particular class of position. [27] As noted at paragraph 3 above, the Complainants have put the subject matter of their complaints in three categories. None of these three categories mention their assignment to the classification of Staff Sergeant or any other classification. To summarize, the categories of the complaints are: a. The Employer reneged on and violated an agreement it made with both Complainants when they each made a “final and binding” election; b. The Complainants were required to compete in an unfair process for the newly-established position of Corporal in the OPSEU bargaining unit; and c. The organizational restructuring process since January 2023 violated various of the Employer’s policies including its Employment Policy, its Code of Conduct and Professionalism, and its document entitled “Operational Leadership Behaviours.” [28] The Complainants’ summary as set forth in their submission of May 6 is consistent with their respective applications. Nowhere do they attack their assignment to a job classification per se. [29] I agree with the Complainants that their complaints are about various working conditions. This Board has recently explained that the term, “working condition or… term of employment” must be read broadly and liberally and may include promises made to a public servant regarding job placement. In Maiwand6, the Board stated as follows: [36] That said, as I wrote in the Bazger case the words “condition of work or term of employment” must be read expansively: As the Board has noted in the Laird case supra, [Laird v Ontario (Community Safety and Correctional Services), 2009 CanLII 43638 (ON PSGB)] “Since the Kanga case, supra, [Kanga v. The Crown in Right of Ontario (Ministry of Health) (1986) CanLII 95 (ON PSGB)] the board has held consistently that these words must be given a broad and liberal interpretation.” This accords with the 6 Maiwand v Ontario (Solicitor General), 2021 CanLII 57993 (ON PSGB) at para. 36-38. - 9 - provisions of the Legislation Act, 2006, 2006 SO c.21 Sch F which stipulate at section 64: 64(1)An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects . 64(2)Subsection (1) also applies to a regulation, in the context of the Act under which it is made and to the extent that the regulation is consistent with that Act. [37] Turning to the facts of this case, in ordinary circumstances, the exclusions at subsection 4(2) of the Regulation would preclude the claim made here by the Complainant. The assignment of the Complainant to a particular class of position, as well as the evaluation of his performance would ordinarily be at the discretion of the Employer. But this is not an ordinary case — it is an extraordinary one. I say that principally because of the oral commitments made by senior managerial staff to the Complainant, that his appointment to the fulltime position of Deputy Superintendent, Operations at TSDC was assured. … [43] The foregoing substantiates my view that the Complainant has established “a working condition or a term of his employment” within the meaning of the Regulation. This is by reason of the equitable doctrine of estoppel…. [30] Section 4(2) of the Regulation thus does not preclude the Complainants from bringing to the Board their allegation of breach of an agreement in the form of their “final and binding” election; nor their allegation of being required to participate in an unfair competition; nor their allegation that the Employer violated various of its employment policies in the course of the restructuring of the job classifications. All of these allegations involve working conditions or purported working conditions that are not precluded by section 4(2) from being the subject matter of a complaint. The Complainants may or may not be able to persuade the Board of those allegations, but the Board is required to consider them. The Second Issue: Can the Board Consider the Allegation Of Breach Of A Binding Election/Agreement? [31] The Employer denies that the election forms or Option Letters dated January 30, 2023 created a binding term and condition of employment that the Board could - 10 - enforce or for which it could provide a remedy in respect of a breach. It argues that the form “was tantamount in law to an invitation to treat.” The language in the form about its being final and binding made it only “irrevocable by them”, i.e. the employees, argues the Employer. [32] The Complainants, on the other hand, argue that by signing the form or activating the default deeming provision, they entered into a binding agreement with the Employer. The Employer later breached that agreement. They were then required to participate in a competition for the Corporal position which they allege was unfair (however that allegation was made before they knew they were successful in that regard). They seek monetary compensation for the damages they incurred as a result of such alleged breach, “holding them [the Employer] financially accountable for breaching the terms and conditions of employment…” [33] In my view, the Complainants’ allegation in this regard is squarely within the Board’s jurisdiction. While the Employer may disagree that the election process created an enforceable agreement which became part of the terms and conditions of employment, that disagreement does not oust the Board’s jurisdiction. As I recently wrote in another case: … if it is disputed that the … policies and procedures are terms and conditions of employment for Ms. Crawford, that factual issue is also one that falls squarely within the Board’s jurisdiction.7 [34] Furthermore, as noted above, in Maiwand the Board ruled that an alleged breach of a promise to appoint a public servant to a job may constitute a breach of terms and conditions of employment.8 Such a complaint is therefore within the Board’s jurisdiction. [35] The Complainants are thus entitled to pursue their argument that they arrived at an enforceable agreement with the Employer, which it later breached. [36] Regarding the possible remedy for that ground of complaint, the Employer argues that there is no prima facie basis to award damages. This is particularly so now that the Complainants have been appointed to the Corporal position they sought. The Employer does not argue that the issue has become moot. Rather, it argues that to award damages for such a claim would completely undermine the 7 Crawford v Ontario (Solicitor General), PSGB #P-2023-01424 (March 18, 2024) at para. 24, citing Chyczij v Ontario (Ministry of Labour), 2006 CanLII 26472 (ON PSGB). 8 See footnote 6. - 11 - prohibition in Section 4(2) of the Regulation against bringing complaints about classification. [37] The prohibition in Section 4(2) has already been found, however, to be inapplicable and to not bar these complaints. [38] As for the Employer’s submission that the Complainants have not made out a prima facie case for damages, I disagree. They have provided a basis for the claim. For example, in their reply filed March 13, 2024 to the Employer’s initial Response, they complain of the situation having been, “emotionally, mentally and physically draining not knowing what is going on. It’s stressful and scary and affects all aspects of your life…” They further complain of, “… the year of negligent communication and information that we endured.” The fact that they were successful in seeking appointment to the Corporal position will of course be relevant in assessing their claim for damages but it does not completely negate it. [39] The Board therefore has jurisdiction to consider the Complainants’ allegation of breach of their “final and binding” election and to consider their remedial requests in that regard. The Third Issue: Can the Board Consider Whether Restructuring Carried Out Improperly, In Violation of Employment Policies? [40] As noted above, the Complainants submit that the entire process of the organizational restructuring since January 2023 was not honest, transparent or governed by integrity, authenticity or demonstrated accountability, thus violating various of the Employer’s policies including sections of the OPS Employment Policy, the Ontario Correctional Services Code of Conduct and Professionalism, and a document entitled “Operational Leadership Behaviours”. [41] The Employment Policy document states its purpose in section 4: This policy establishes a set of principles and requirements for managing public service employment and enables timely, flexible and accountable employment practices. [42] Section 6 of the Employment Policy is one section relied on by the Complainants. It describes a set of “Principles” that govern employment in the OPS. They also rely on Section 9 which is headed, “Mandatory Requirements – Appointments, Assignment and Transfer.” [43] The Code of Conduct and Professionalism (“COCAP”) describes its intent in part as follows: - 12 - The COCAP policy outlines the behaviours expected of all employees, regardless of rank and also defined the behavioural standards and infractions in accordance with internal, OPS wide and/or provincial procedures, policies and legislation. It includes a code for on-duty conduct, a code for off-duty conduct, a section of “defined infractions” and a section dealing with complaints and corrective disciplinary action. [44] The Operational Leadership Behaviours document relied on by the Complainants is a slide deck that describes the OPS leadership model. It summarizes the “expected leadership behaviours and attributes” of leaders in the OPS. [45] The Employer asserts that the Board’s jurisprudence has established that it will not hold a hearing “to determine issues of fairness or that the Employer could have done something in a different fashion.” It argues that the Board’s jurisdiction is limited to interpreting current terms and conditions of employment and there are no facts asserted to demonstrate that the terms and conditions applicable to the Complainants’ classification were not being applied properly. No authorities were cited. [46] In my view, this ground for the Employer’s preliminary objection must fail. It is not responsive to the actual complaints. The Employment Policy relied on by the Complainants is self-evidently a set of terms and conditions of employment. So is the COCAP. The Complainants have the right to allege that the Employer has violated these terms and conditions of their employment. Such complaints are squarely within the Board’s jurisdiction. [47] The complaint about the Operational Leadership Behaviours document is, however, a different matter. That document appears to outline an aspirational leadership model describing optimal behaviours of leaders in the OPS. I do not view it as a set of terms and conditions of employment of the Complainants. It is not a set of requirements that they can rely on when they think that their leaders have fallen short of those model behaviours. [48] In addition to the fact that the Complainants have the right to pursue their complaints about violations of the Employment Policy and the COCAP, I must also address the Employer’s argument that the Board will not hold a hearing to determine issues of fairness or whether the Employer should have done things differently. I do not agree with that characterization of the law. Nor do I agree with that characterization of the complaints. - 13 - [49] The Board’s approach to issues of fairness is aptly summarized by Messrs. Hadwen and Strang in their authoritative text regarding public service employment law, as follows: The PSC Employment Policy provides that public service employment practices are to “apply the principles of merit,” be “fair, objective, reasonable and transparent,” and “balance organizational and individual interests.” Employees are to be “treated with fairness and dignity throughout their employment relationship. Unreasonable exercises of managerial discretion…. could be challenged as contrary to these provisions. … The PSGB is concerned with enforcement of the existing terms and conditions of a complainant’s employment contract, including the requirement that those terms and conditions be administered and applied fairly, reasonably in good faith, and not arbitrarily. “An allegation of arbitrary, discriminatory or bad faith conduct… must relate to an existing term or condition of employment which the board has jurisdiction to enforce. The board requires, “something more than a belief that something is unfair, no matter how deeply held. The requirement is fairness in process. The substantive content will vary with the circumstances.9 [50] In the Board’s decision in the Berezowsky 10 case, it stated as follows: [27] The Board’s decision in Garratt, supra, confirms that there may be circumstances where the Board will inquire into an allegation of arbitrary, discriminatory or bad faith conduct on the part of the Employer. Fundamentally, the allegation must relate to an existing term or condition of employment which the Board has jurisdiction to enforce. In Garrett, the complainants sought a transparent process for setting and communicating wages. No such process then existed and the Board dismissed the complaint on the basis that the complainant was seeking to establish a new process - to create a new term of employment, a matter beyond the Board’s jurisdiction. The Board’s role is the enforcement of existing terms and conditions of employment. The Board did go on to say that an allegation that an existing term or condition of employment had been applied in bad faith was a matter that could be brought to the Board. However, that decision did not deal with a 9 Timothy Hadwen and David Strang, Ontario Public Service Employment & Labour Law, 2d ed. Irwin Law Inc. 2024, at pp. 790-791 (citations omitted). 10 Berezowsky v Ontario (Solicitor General), 2021 CanLII 82509 (ON PSGB) - 14 - term or condition of employment that was otherwise expressly excluded from the Board’s purview. [51] Thus, in addition to being entitled to try to prove and argue specific violations of the Employer’s policies, it is open to the Complainants to seek to demonstrate the unfair, unreasonable, arbitrary or bad faith application of existing terms and conditions of employment that are not expressly excluded from the Board’s jurisdiction, as described in the preceding passages. This is what I understand the Complainants to be arguing. CONCLUSION [52] For all of these reasons, I have concluded that the Employer’s preliminary objections that the Board lacks jurisdiction to consider these complaints must be dismissed. [53] This matter is referred to the Registrar, to schedule a further case management meeting with the parties. The purpose of the meeting will be to discuss and determine the process for hearing the merits of these applications, including what if any additional evidence is required, what if any additional submissions the parties wish to make, and the process for doing so. [54] I remain seized with this application. Dated at Toronto, Ontario this 7th day of June 2024. “Brian Smeenk” Brian Smeenk, K.C., Chair