GSB# 2014-2618

UNION# 2014-0517-0023

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Conry)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

David R. Williamson

Arbitrator

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

January 9, 2018 and March 29, 2018

DECISION

1On August 14, 2014, Mr. Stephen Conry was dismissed from his employment as a Correctional Officer (“CO”) at the Metropolitan Toronto West Detention Centre for using unjustified and excessive force on two inmates on October 5, 2013. Mr. Conry filed a grievance against his termination of employment and the grievance came to be heard at the Board before the undersigned Arbitrator on January 6, 2015, and on a number of subsequent dates. At the arbitration hearing Mr. Conry did not dispute the Employer’s finding that he had used excessive force in the course of carrying out his duties. With the use of force incident not needing to be proved, the central issue at the hearing became that of the appropriateness of the penalty of discharge.

2In a Decision dated August 12, 2016, I substituted in place of Mr. Conry’s termination of employment an alternative and lesser penalty, and noted in the following way the authority and latitude of my authority to substitute an alternative penalty:

40The authority to substitute an alternative penalty is provided by subsection 48(17) of the Labour Relations Act, 1995 in the following way:

Substitution of penalty. - Where an arbitrator or arbitration board determines that an employee has been discharged or otherwise disciplined by an employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject matter of the arbitration, the arbitrator or arbitration board may substitute such other penalty for the discharge or discipline as to the arbitrator or arbitration board seems just and reasonable in all the circumstances.

41The latitude of this authority in the instant case is, however, circumscribed by subsection 7(4) of the Crown Employees Collective Bargaining Act, 1993 which provides:

Restrictions on substituted penalties

7.(4) In substituting a penalty under subsection 48(17) of the Labour Relations Act, 1995, the Grievance Settlement Board shall not provide for the employment of an employee in a position that involves direct responsibility for or that provides an opportunity for contact with residents in a facility or with a client if the Board has found that the employee,

(a) has applied force to a resident in a facility or a client, except the minimum necessary for self-defence or the defence of another person or necessary to restrain the resident or client;

Definitions

7.(5) In subsection (4),

“facility” means,

(e) a correctional institution under the Ministry of Correctional Services Act,

“resident” means a person who is an inmate, patient, pupil or resident in or is detained or cared for in a facility.

Substitute penalty

7.(6) In substituting a penalty under subsection 48(17) of the Labour Relations Act, 1995 in circumstances in which it is restricted by subsection (4), the Grievance Settlement Board may provide for the employment of the employee in another substantially equivalent position.

42On the basis of the foregoing legislation I have the jurisdiction as Vice-Chair of the Grievance Settlement Board to substitute an alternative penalty for Mr. Conry’s discharge, and return Mr. Conry to work with the Employer in accordance with subsection 7.(6) of the Crown Employees Collective Bargaining Act, provided that it is to a substantially equivalent position that complies with the restriction set out in subsection 7.(4) of this Act. I note that this restriction does not apply to the Employer and thus, as such, it is open to the Employer to place Mr. Conry into the same position upon his return to work that he occupied prior to his termination.

43Accordingly, I am returning Mr. Conry to work with the Employer and reinstating him to a position substantially equivalent to that which he occupied at the time he was discharged. …….

44Mr. Conry is to be reinstated to work from the date of this decision, with full seniority, but without compensation for the period from August 14, 2014 to the date of this decision. The discharge shall be removed from Mr. Conry’s record and in its place shall be substituted a suspension from the date of his discharge to the date of his reinstatement. This is a substantial suspension that reflects the seriousness of his misconduct. I direct the Employer to reinstate Mr. Conry to work in a position that is substantially equivalent to that which he occupied at the time of his termination, but one that does not involve direct responsibility for inmates or provide the opportunity for contact with inmates. The matter is remitted to the parties to determine a suitable position. I will remain seized in the event there are any implementation issues that arise.

3After receiving the above-referenced Decision the Employer returned Mr. Conry to work, first to perform certain unspecified work, and then as an Electronic Supervision Officer (“ESO”) from January 16, 2017. Mr. Conry was still working as an ESO as of the date of this Arbitration. In this ESO position Mr. Conry provides services related to the operation of the Ministry of Community Safety and Correctional Services Electronic Supervision Program and its Intermittent Community Work Program. The parties agreed to enter into evidence a written document that provided an overview of the duties and functions of the Electronic Supervision Officer position. From this the Union pointed out the work being performed by Mr. Conry is of a different kind than before as he is no longer working in a correctional facility and responsible for the control and care of inmates, but rather working in a computer centric world with persons who have faced charges and are serving some form of sentence while remaining in the community and outside of an institution. The Union submits the big difference between the CO and ESO positions, and the matter on which its case turns, is the difference in the monetary income Mr. Conry can earn from them.

4As such, the Union makes the submission that the Employer has not complied with the direction given to it in the above-cited Decision to place Mr. Conry in a “substantially equivalent position” to the one he held at the time of his termination. In the course of making its submission the Union pointed out that the length of time of Mr. Conry’s suspension from work amounted to two years and that being without his salary as a Correctional Officer was the penalty he sustained for his misconduct. Having now incurred this penalty in the past, the Union submits that Mr. Conry is continuing to incur a financial penalty on an ongoing basis as his earned income from the ESO position is significantly less than the income he earned when he worked as a Correctional Officer. The Union accordingly submits that the Employer has not complied with the foregoing direction to place Mr. Conry into a “substantially equivalent position” to the one he held at the time of his termination in August 2014.

5In making this submission the Union urged the Board to follow the approach used to assess equivalence taken in Re Travers, the 1981 Decision of the Board chaired by Vice-Chair Swinton, in which after noting at page 10 that there were a number of factors of equivalence between jobs such as pay level, job content, geographic location, and level of skill and responsibility, the Board arrived at the finding at page 12 that:

“Level of pay is an important factor to consider in assessing substantially equivalent positions. From the employee’s point of view, it is probably the most important factor.”

6Similarly, the Union also made reference to Re OPSEU (Thibert, McGill and Jung) & Ministry of Correctional Services, the 1985 Decision of the Board chaired by Vice-Chair Verity, and the statement contained therein that:

“Inevitably, the level of pay is the single most important factor in determining substantial equivalency. ….. No factor entering into the phrase “substantially equivalent position” is more important than the salary component. The Board finds it difficult to justify equivalency where the salary is significantly lower in one classification as compared to the other classification.”

7The essence of the case put forward by the Union is that while there is not a great deal of difference in the hourly pay rate between the positions of the ESO and the CO, total annual earnings are significantly different once overtime pay is included. It is the submission of the Union that while both positions have the opportunity for overtime work the quantum of overtime work available to a CO is far greater, such that during the last five full years Mr. Conry worked as a CO from 2009 to 2013 the money earned each year from overtime constituted close to one half of his total earnings. Or, put another way, his overtime pay approximately equaled his base pay. In contrast, during the 2017 year when Mr. Conry worked as an ESO from January 16th, the money he earned from overtime represented approximately thirty per cent of his total earned income.

8By agreement of the parties certain documents were placed into evidence. Introduced by the Union were Mr. Conry’s T4 statement of remuneration for 2017, and a summary prepared by Mr. Conry’s accountant of his employment earnings in the years 2009 to 2013 inclusive when he worked as a CO. The Employer provided numbers for the hourly earnings and length of work-week for both a Correctional Officer and an Electronic Supervision Officer. Neither party called any viva-voce evidence.

9In support of its position and submission, the Union made reference to the following arbitral authorities: Re Ontario Public Service Employees Union (Maude) & The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), GSB No. 2014-3306 (Petryshen – January 4, 2017); Re Ontario Public Service Employees Union (Travers) & The Crown in Right of Ontario (Ministry of Correctional Services), GSB No. 213/78 (Swinton – June 18, 1981); Re Ontario Public Service Employees Union (Karl Van’t Hullenaar) & The Crown in Right of Ontario (Ministry of Correctional Services), GSB No. 555/81 (Jolliffe – January 20, 1982); Re Ontario Public Service Employees Union (Thibert, McGill, and Jung) & The Crown in Right of Ontario (Ministry of Correctional Services), GSB No. 556/81 (Verity – October 1, 1985); Re The Crown in Right of Ontario (Ministry of Correctional Services) v. O.P.S.E.U., Ontario Divisional Court, 1986 CanLII 2476 (ON HCJ), 1986, 34 D.L.R.(4th) 101, 57 O.R. (2d) 641; and to Re Ontario Public Service Employees Union (Neckles) & The Crown in Right of Ontario (Ministry of Community & Social Services), GSB No. 1291/87 (Emrich – October 3, 1995).

10The data placed into evidence by the Employer on the length of the work week and the hourly earnings for an ESO and a CO show the following:

An ESO works 36.25 hours/week. Base Pay of $1254.76 per week or $34.61 per hour.

Total Annual Base Pay is $65,247.52.

A CO works 40 hours/week. Base Pay of $1363.60 per week or $34.09 per hour.

Total Annual Base Pay is $70,907.20.

11It is the position of the Employer that the ESO position in which Mr. Conry is now working is substantially equivalent to the CO position he previously held, and submits that the factors of equivalence employed in Re Travers and followed in Re Maude be utilized in the instant matter namely, pay level, job content, geographic location, and level of skill and responsibility. The Employer submits that the similar or higher level of skill and responsibility required in the ESO position is reflected in a higher hourly rate of pay, that both positions provide the opportunity for overtime work, and that both positions are in the same bargaining unit with wage increases that move in lockstep with each other. It is the Employer’s further submission that the annual base pay of a CO and an ESO are at comparable levels after taking into account the ten percent extra hours worked per week by a CO and that a component of the CO pay reflects, as found in the Re Travis Award of the Board chaired by Vice-Chair Swinton, a premium for dangerous work relating to inmate contact.

12It is submitted by the Employer that the amount of overtime pay that could be earned should not be a factor that enters into the equation as to whether the two positions are substantially equivalent. This is because there is no right contained in the collective agreement for an employee to receive overtime work and overtime pay, and that it is not an obligation of the Employer to provide overtime. Further, it submits that whether overtime work is offered at all falls entirely within the management rights clause of the collective agreement.

13In addition to there being no right to any overtime the Employer submits that it is entirely speculative, particularly against a background of recent moves to hire additional Correctional Officers, to assume the same circumstances from up to eight years ago that gave rise to Mr. Conry’s overtime opportunities and his resultant earnings for the years 2009 to 2013 would continue into 2017 and beyond and serve as a basis for comparison. Further, the Employer submits that overtime earnings are not a complete windfall to an employee as they come with the cost of reduced time with family.

14As such, the Employer submits that the quantum of monies earned in the past from overtime ought not to be part of the equation in making the assessment as to whether the two positions are substantially equivalent. Accordingly, it is the position of the Employer that the monetary element that enters into the equation as to whether two positions are substantially equivalent is the base rate of pay and whether both positions offer the opportunity to earn overtime income.

15The Employer expressed its disagreement with the position of the Union that Mr. Conry is incurring an ongoing financial penalty as a result of no longer having the opportunity to work substantial overtime in the way he did when he was a Correctional Officer through to 2014. Rather, it holds the view that Mr. Conry has gained everything as he has been given a second chance to remain employed in a substantially equivalent position and earn a commensurate income.

16In support of its submission and arguments the Employer made reference to the following arbitral authorities: Re OPSEU (Mills) & The Crown in Right of Ontario (Ministry of Transportation), GSB No. 112/88 (Chapman – January 2, 1990); and to Re OPSEU (Adolfo Cruz) & The Crown in Right of Ontario (Ministry of Correctional Services), GSB No. 1735/86 (Draper – May 25, 1988).

17The matter to be determined is that of whether or not the ESO position into which Mr. Conry has been placed by the Employer is substantially equivalent to the position he previously held as a Correctional Officer. It is the submission of the Union that it is not substantially equivalent.

18As pointed out in the Re Travers decision (supra), the wording of the Act is that:

…….”the grievor should receive a “substantially” equivalent job, rather than one that is “exactly” equivalent.

And that:

“in the search for factors of equivalence between jobs, several arise as possibilities: pay level, job content, geographic location, and level of skill and responsibility.”

19The foregoing approach was followed by the Board in Re Maude. The factors of equivalency set out and applied in Re Travers are also adopted and applied in the instant matter.

20The first factor to be considered is that of job content. In his current work Mr. Conry is still dealing with individuals who have in some way run afoul of the law without being in a position whereby he would come into contact with inmates, something Mr. Conry is no longer permitted to do in his work. As an ESO Mr. Conry is able to do monitoring and supervision work by way of electronic surveillance of individuals who are not inmates but are required to comply with certain legal directives as to their permitted mobility. The work Mr. Conry performs as an ESO is still that of monitoring and supervision, but done remotely with technology rather than with a physical presence as he did as a CO. The job content of an ESO must be considered to be similar although not identical to that of a CO.

21The second factor set out in Re Travers is that of Geography, namely the location of the new employment compared with the location of the previous work place. In the instant matter this has not been raised as an important issue requiring the attention of the Board.

22The third factor is that of the level of skill and responsibility. The rate of hourly pay in a position is commonly accepted as being reflective of the skill and responsibility required in a job. To the extent that this is so, and with the hourly rate of pay of an ESO being $34.61 per hour versus $34.09 per hour for the CO position previously held by Mr. Conry, it must be concluded that the level of skill and responsibility required in the ESO position is at least substantially equivalent to that of the CO position.

23We turn to consider the fourth of the factors set out in Re Travers, namely that of the level of pay that can be earned by Mr. Conry in the ESO position compared with his earnings as a CO. Of all the criteria, this is the one most focused on by the Union in submitting that the ESO and CO positions are not substantially equivalent. In both positions Mr. Conry’s total earnings consist of two elements; his base pay, and his overtime pay. Both will be considered in turn.

24On the numbers in evidence the base pay in the ESO position is $65,247 per annum and $70,907 per annum in the CO position. However, as noted in the 1981 Decision in Re Travers, in making the comparison the weekly hours of work and work conditions ought to enter into the equation. In the words of the Board in Re Travers at page 13:

In this particular case, the two salaries are less divergent if considered on the same hours of work base – e.g. 36¼ hours. ………..Furthermore, it is relevant to consider that a proportion of the Correctional Officer 2 salary reflects a premium paid for dangerous work (similar to the $1,000 premium paid to other Ministry employees with inmate contact).

25While Mr. Conry is not a CO2, similar considerations to the above apply in making a comparison of pay in the two positions, and it is noted that the $1,000 premium in 1981 terms would be much greater in 2018 terms and closer to the sum of $2,500 to $3,000. Additionally, the higher pay in the CO position comes about from working 40 hours a week versus 36¼ hours in the ESO position. After adjusting solely for the number of hours worked to 36¼ in a week the difference in the annual pay between the two positions is significantly reduced with the ESO position having a slight premium of just under $1,000, namely $65,247 versus $64,260. The conclusion that must be reached is that based on the criterion of annual base pay alone the two positions of ES and CO are not much different and must be found to be substantially equivalent.

26It is a central part of the submission by the Union that the ESO position cannot be considered to be substantially equivalent to the CO position Mr. Conry previously occupied because he is not earning the same overall total income as an ESO that he did as a CO during the last five years prior to his termination. The evidence shows that this difference is mostly because of the greater amount of overtime income he earned as a CO.

27In comparing the two positions it is important to note that both provide the opportunity to work overtime. Mr. Conry was able to work large quantities of overtime in his CO position during the years 2009 to 2013 such that he was frequently doubling his base pay income. By contrast in 2017 Mr. Conry worked enough overtime in his ESO position to earn an additional approximate $27,000, a not insignificant overtime opportunity that added some 42% to his base pay. In this regard the instant matter may be distinguished from Re Maude where the secretarial position into which Mr. Maude had been placed offered no overtime opportunity whatsoever. Having the opportunity to earn overtime is an important consideration in comparing the equivalence of two positions. The ESO position into which Mr. Conry has been placed does provide the opportunity to not only work overtime, but to earn significant overtime income. It just is not as large as the substantial sums he earned from overtime as a CO.

28Whether to extend overtime work to employees, and if so how much, falls inside the rights of management in the instant collective agreement. Thus an employee does not have any right or entitlement to overtime work. As noted in the 1988 Decision of Re Adolfo Cruz, supra, at page 5:

As the Board has found in a number of cases, among them Pehlke, 791/85, there is no employee right to overtime work. The employer has the exclusive managerial right to schedule such work.

29As such, Mr. Conry does not possess any right to overtime work and, by extension, has no right to any set amount of overtime work in the future. Absent entitlement to overtime, there can be no entitlement to any particular quantum of overtime. The amount of overtime Mr. Conry worked in the past as a CO in the five years to 2013 is a product of both the quantum of overtime made available by the Employer and Mr. Conry’s personal appetite to work it once offered. In that the initial decision on overtime is in the hands of the Employer, Mr. Conry cannot lay claim to receive in the future the quantum of overtime he earned as a CO in the five years to 2013. Further, to suggest that, against a background of changing staffing levels and operational needs, the Employer would offer the same quantum of overtime in the future as in the past must be seen to be conjectural and speculative.

30As such, the monies earned from overtime work by Mr. Conry as a CO during the years 2009-2013 cannot be seen to be an element of the CO position against which another position is to be compared in making the determination as to whether that position is substantially equivalent. That is, overtime income earned is not something to be included as an element in making the assessment as to whether two positions are substantially equivalent. Whether overtime work is offered or not falls exclusively within the rights of management and Mr. Conry cannot claim a fixed quantum of overtime work to be his right or entitlement and something for which he should be paid.

31By way of summary therefore, in comparing the ESO position with the CO position previously held by Mr. Conry, and applying the factors of equivalence set out in Re Travers, it must be found that the two positions are “substantially equivalent” in that they require a similar level of skill and responsibility, have a similar hourly rate of pay, are at a similar level of base pay, and that both have opportunities for overtime work. The quantum of income Mr. Conry historically earned from overtime work as a CO cannot be included in this comparison as the decision on whether there are any overtime hours to be worked falls solely inside the rights of management to determine. Mr. Conry cannot claim a certain set quantum of overtime as his entitlement.

32Accordingly, and for all the foregoing reasons, the ESO position presently occupied by Mr. Conry is found to be “substantially equivalent” with the CO position Mr. Conry occupied at the time of his termination from employment. Therefore, the grievance must be dismissed.