P/0013/98
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
GIRLING
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Solicitor General and Correctional Services)
Employer
BEFORE Deborah J.D. Leighton Vice-Chair
FOR THE Amani Oakley
GRIEVOR Barrister & Solicitor
Ajamu Boardi
FOR THE Staff Relations Officer
EMPLOYER Ministry of the Solicitor General & Correctional Services
HEARING DATE: July 21, 1998; December 3 & 4, 1998; December 11, 1998; February 24, 1999; May 27 & 28, 1999; November 10, 1999; November 30, 1999; December 1, 1999; January 25, 2000, August 23, 24 & 29, 2000; December 7 & 19, 2000
Final submission received June 30, 2001.
Introduction
Ms. Anna Girling, a sergeant with Ontario Governments Protective Service (OGPS), filed her working conditions grievance with the board on May 26, 1998. The grievor alleged that the employer had breached her working conditions when the practice of providing sergeants with four rest days, during a 56 day schedule, was changed to only one rest-day. At the commencement of the hearing the grievor amended her complaint to include an allegation that the employer had retaliated against her for filing her grievance. The employer took the position that it was within its management rights to change the grievor’s schedule and denied the allegation that there had been any reprisal or retaliation against her for filing her grievance.
The Evidence
Ms. Girling joined the OGPS in 1982 as a Security Officer II. In 1991 she was promoted to acting sergeant, a position which she held until she was promoted in 1993 to sergeant. She was stationed in the George Drew Building in Toronto until 1994, when she applied and was successful in getting a position at the then new OPP headquarters in Orillia, moving there in July of 1995. She had been assured that the working conditions, benefits, and pay would be the same in Orillia as in Toronto.
As an OGPS Sergeant Ms. Girling is classified as OM12, a schedule 6, management excluded employee. Under the Public Service Act, R.S.O. 1990, P. 45, Regulation 977, section 9 (1)(d), schedule 6 employees must perform at least 36.25 hours of work per week. Until 1991 Ms. Girling's work schedule consisted of 36.25 hours of work per week. In 1991, the OGPS began working on a compressed workweek with 12-hour shifts. In 1995, after a complaint by the sergeants that they were working a schedule routinely over the minimum requirement of 36.25 hours a week, the employer implemented a system where four rest days were allotted in a 56 day schedule to compensate for the extra hours worked. Sergeants were scheduled to work 12-hour shifts with 15 minutes for lunch, resulting in an 11.75-hour workday. Sergeants may have taken longer for lunch, but were expected to have their radios on and to respond to a call within five minutes.
When Ms. Girling moved to the OPP headquarters in July 1995, supervision of the OGPS initially remained with Staff Sergeant Moores who was based in Toronto. Job duties and working conditions remained the same. In October 1997, responsibility for the OGPS at OPP headquarters was transferred to the GHQ Services Section, Infrastructure Support Bureau and the sergeants began to report to Inspector John MacKillican. Staff Sergeant Gus MacDonald assumed responsibility for the day-to-day operations of the OGPS at the OPP headquarters.
In November 1997, Inspector MacKillican told the sergeant's that three of the four rest days every 56 day rotation were to be cancelled. On December 21, 1997, the work schedule was posted without three additional rest days for each sergeant, except for Sergeant Alexander, who does administrative work and retained some rest days. OGPS Sergeant's in Toronto also retained the three rest days.
On January 16, 1998, the grievor met with Staff Sergeant MacDonald to discuss the issue of the rest days. She stated that this change to the sergeant’s working conditions was a violation of the Public Service Act. Staff Sergeant MacDonald disagreed with the grievor's view and stated further that she was " a very negative person" and that he had not seen "anything positive go across his desk" from her. In this meeting he also speculated that she would not be successful in a job competition, if she had to compete for the position. He also stated in this meeting that the OGPS sergeant's positions might be privatised if the sergeants were unwilling to accept a loss of the three rest days.
On January 21, 1998, Ms. Girling met with Inspector MacKillican to present her position on her grievance that the loss of the three rest days was a violation of her working conditions under the Public Service Act. Inspector MacKillican disagreed and stated that a memo of September 1995, from Staff Sergeant Moores outlining the practice of the rest days for the sergeants was incorrect. Inspector MacKillican disagreed with giving the sergeants only 15 minutes for lunch. He was of the view that the sergeants should be scheduled for a 1.25-hour lunch on every shift. Sergeants are not paid for their lunch break. Inspector MacKillican noted that it was Ms. Girling's right to grieve management's decision.
There was much detailed evidence tendered with documents and testimony of what if any notice was given to the sergeants regarding the change to their duty schedule and the elimination of three of the four normally scheduled rest days. The evidence of Ms. Girling and other sergeants who testified is clear, at least initially, that when they were notified in November of 1997, they were still expected to work the same number of hours. It was not until December 14, 1998, after the hearing into this matter had begun that Inspector MacKillican recognised that the sergeants might not have realised that they were entitled to take a lunch break of 1.25 hours “totally unencumbered.” On December 14, 1998, Inspector MacKillican issued a memo to all OGPS sergeants informing them that the schedule now provided for a 10.75 work day with a 1.25 hour unpaid meal break, that the sergeants were not expected to work. There was also evidence that the sergeants were supposed to carry radios with them when they left GHQ. Inspector MacKillican testified that this was for the sergeant’s own safety and protection and not in order to call the sergeants back in the event of an emergency.
In the January 21, 1998 meeting Ms. Girling also raised concerns with Inspector MacKillican about what she considered to be harassment and intimidation by Staff Sergeant MacDonald. Inspector MacKillican acknowledged that perhaps Staff Sergeant MacDonald had used a wrong choice of words in his meeting with her on January 16, 1998. No evidence was provided that the Inspector took any action in response to Ms. Girling’s complaint.
On February 9, 1998, Ms. Girling met again with Staff Sergeant MacDonald. Sergeant Roarke attended this meeting as a witness and note taker. Staff Sergeant MacDonald again raised the possibility of the Sergeant's positions being privatised if costs were not cut. He further suggested that sergeants could return to union positions - Security Officer 3.
Staff Sergeant MacDonald’s memory was not as clear as Ms. Girling’s with regard to the meetings of January 16 and February 9. He often qualified his answers by saying “to the best of my recollections.” Thus, I prefer Ms. Girling’s evidence about what occurred in these meetings where it conflicts with the Staff Sergeant’s.
On February 12, 1998, three days after formally filing her grievance, Ms. Girling received a performance evaluation done by Staff Sergeant MacDonald. Ms. Girling was extremely unhappy with what she viewed as a highly negative evaluation — and the first negative evaluation in her employment history with the OGPS. The board heard evidence from prior supervisors that Ms. Girling was an exemplary employee. The evaluations contained some suggestions for improvement within highly positive performance appraisals. Staff Sergeant MacDonald was not of the same view and he stated in his performance evaluation of Ms. Girling, amongst other things, that:
She completes all tasks assigned as long as explicit instructions are provided to her. She usually takes the most appropriate action in incidents and occurrences. As a supervisor, Sergeant Girling must learn to make decisions based on information at hand.
The Staff Sergeant provided an example in the performance appraisal for why he was of the view that Ms. Girling must learn to make decisions based on information available.
The criticism of Ms. Girling was based on an incident, which occurred very early one morning. Further evidence on this incident was provided at the hearing. Staff Sergeant MacDonald testified that employees are permitted via their security cards to enter their own areas at any time of the day or night but they are not permitted access to other areas of the building off hours unless special written authorisation is obtained and security is informed ahead of time. An employee was attempting to enter a part of the building that he was not permitted to enter at this time of the day. Ms. Girling had been given no prior authorisation permitting the employee to enter this area of the building, as required by security procedure. Sergeant Girling contacted Staff Sergeant MacDonald at home to seek his permission to let the employee enter. Both Staff Sergeant MacDonald and Inspector MacKillican were of the view that this was the wrong decision and that she should have permitted the employee to enter the building and to access a work area that was not normally his own.
Inspector MacKillican testified that Sergeant Girling's action amounted to making no decision at all. Staff Sergeant MacDonald testified while he acknowledged that there were approximately 900 employees working in the building he was sure that Ms. Girling knew this employee and she should have permitted him access to the work site. He stated that if she had not known the individual, checking his driver’s license or some other identification would have been appropriate before allowing him into the building, or Ms. Girling could have assigned someone to accompany him. Staff Sergeant MacDonald acknowledged on cross-examination that the reason employees are restricted to their own areas in the off hours was the policy that employees should be supervised if they were accessing an area that was not their own. This employee was attempting to access the computer closets — an area where he did not have security clearance at that time of the day.
Sergeant Girling testified that she did not have someone who could be assigned to monitor the employee. Sergeant Girling drafted a response to her performance appraisal expressing her concerns about the content. Inspector MacKillican responded to this letter stating that he agreed with Staff Sergeant MacDonald's performance evaluation and his view of Ms. Girling's judgement and ability to evaluate available information. The Inspector also stated that it was his view that Sergeant Girling was not willing to take constructive criticism and that she should learn from the Staff Sergeant's comments rather than challenge them. It was clear from the Inspector’s evidence that he considered Ms. Girling’s response to her performance evaluation as inappropriate. In his response to Sergeant Girling he also stated:
… You have also challenged the decision-making of management in relation to the transition of OGPS from the Greater Toronto Region to GHQ. This is inappropriate and unacceptable for a supervisor and I trust that comments such as these which indicate that you do not fully support the directions of management will not reoccur...
When Inspector MacKillican was asked to give examples of when Sergeant Girling did not support management, he could not give any examples other than her disagreement with her negative performance evaluation.
Other evidence was tendered on behalf of the grievor to prove that she suffered harassment or reprisal as a result of filing her grievance. A letter, written by an OPP Inspector, not based at GHQ, to commend and thank Sergeant Girling for an unscheduled tour of GHQ resulted in a notation that she seek approval in advance from each manager before entering sensitive areas when taking people on a tour. Inspector MacKillican testified that he had concerns about people taking a tour in the forensic area. He was unaware when he wrote the note on the letter of commendation that Sergeant Girling did not take the visitors to the forensic laboratory.
Evidence of day-to-day harassment was also tendered, not all of which is necessary to summarise here but may be referred to later in the decision. Ms. Girling’s orders to her subordinates were cancelled without informing her (overtime coverage), and when she questioned whether police orders applied to the OGPS, these questions were taken as challenges to management. The evidence as to whether police orders do apply to the OGPS was that they do not. Staff Sergeant Moores testified thus and documentary evidence supported this. Both Staff Sergeant MacDonald and Inspector MacKillican were of the view that the police orders did apply to OGPS and therefore insisted that police procedures be followed when the grievor asked to see her personnel file during the hearing into this matter. This resulted in a significant delay and stress on the grievor. In contrast the human resources department said an e-mail request was sufficient, since OGPS are not OPP.
The Grievor’s Submission
Counsel for the grievor argued that the employer had no right to change the practice of scheduling four rest days to only one rest day. In essence counsel argued that it was contrary to the Public Service Act to routinely schedule the sergeants at 40 hours a week when they were only required to work a minimum of 36.25 hours per week. This argument was based on evidence that the sergeants were required to be on call and ready to respond within five minutes of being called, even on a “lunch break.” This had been the requirement under Staff Sergeant Moores who supervised the sergeants in Orillia until Inspector MaKillican took over in October of 1997.
Counsel submitted that the whole issue of lunch was a red herring and that Inspector MacKillican was not concerned that 15 minutes a day was insufficient for lunch, but only in calculating the hours so as not to award lieu days for the time worked. Counsel argued that the testimony of Staff Sergeant MacDonald was that lieu days were cancelled as a result of financial constraints on the organisation. There was a decision not to fill vacant positions. Having made that decision, there was insufficient staff to cover all the shifts if lieu days were still granted. Counsel argued that the testimony of the grievor and Sergeants Quirt and Trask was consistent in stating that at no time were the sergeants notified of a longer lunch break when first notified that the lieu days were cancelled. They were not told that they were permitted to leave the premises during their meal break in the earlier announcements and meetings about the change in their schedule. It was not until Inspector MacKillican’s memorandum of December 14, 1998, that the sergeants were told that they were entitled to a 1.25 hours lunch and that they could leave the premises provided that they notified Staff Sergeant MacDonald or the duty officer, that they were leaving. Counsel argued that because the change in lunch policy was merely a paper transaction made by the employer, it was never really intended to change the status quo. Counsel pointed to potential health and safety problems with sergeants leaving the premises. Counsel argued that the whole scheme lead to inadequate security staffing – if sergeants actually left for lunch.
Counsel argued further that by requiring the sergeants to carry radios, they remained on duty, even if they were permitted to leave the premises during meal break. If they were to carry radios, they must be paid because they were, in effect, still on duty. Counsel cited a leading arbitration case as authority for the principle that employees who are required to continue their responsibilities through the lunch break or who have to report to work on a short time frame (if called) must be paid for their lunches. Re Meaford General Hospital and London and District Service Unison (1995) 1995 CanLII 18397 (ON LA), 51 L.A.C. (4th) 183. The board in this case made it clear that it was the possibility of being called at any time during the lunch break and not actually being called that made the board conclude that the employees were at work and should be compensated accordingly. Counsel also relied on the following cases to support this submission: United Steelworkers of America and Automatic Screw Machine Co. (1970) 1970 CanLII 1634 (ON LA), 21 L.A.C. 255 (Shime); Religious Hospitallers of Hotel-Dieu of St. Joseph and Service Employees’ Union (1983) 1983 CanLII 4813 (ON LA), 11 L.A.C. (3d) 151 (Saltman); Town of Midland and Ontario Public Service Employees Union (1987) 1987 CanLII 8845 (ON LA), 31 L.A.C. (3d) 251 (Saltman).
Counsel also argued that management was estopped from changing the working hours of the sergeants. Counsel argued that there was a written representation that lieu days would be implemented to resolve the complaint of the sergeants back in 1995. The sergeants relied on the newly implemented lieu days and as a result of that reliance a grievance was withdrawn. The sergeants have relied on the written representation to their detriment. The detriment in counsel’s submission is the loss of the right to grieve the issue. Therefore the employer is not in a position to alter lieu days.
Counsel for the grievor also submitted that according to the “Human Resources Directive and Guidelines” “a salary differential of 5% must be maintained between supervisors and subordinates on permanent assignment to a position.” Counsel argued that by removing the lieu days of the sergeants one overtime shift paid to a bargaining unit member would be enough to increase the officers salary to more than that.
Submission on Harassment
Counsel submitted that the grievor was harassed because she filed a grievance complaining about the loss of the lieu days. She argued that the harassment began with the very first meeting regarding the loss of the lieu days with Staff Sergeant MacDonald on January 16, 1998. Staff Sergeant MacDonald was aggressive and disparaged her as a sergeant. The threats that if the sergeants keep their lieu days they will be privatised and that if the sergeants grieve the loss of their lieu days and win, they will be put back to an 8-hour shift constituted harassment. The threat that if there were a competition for a position she would not get the job was clear evidence of intimidation. Staff Sergeant MacDonald testified in cross-examination that he never said the grievor was a negative person, but he did not deny making the other statements to her.
Counsel contended that other incidents occurring after this meeting contributed to the grievor’s concerns that she was being given a message that she was not supposed to grieve. The grievor told Inspector MacKillican what had happened in her meeting with Staff Sergeant MacDonald on January 16. Inspector MacKillican’s view of Staff Sergeant MacDonald was that he might have used the “wrong choice of words.” Counsel argued that Inspector MacKillican was fully aware that the Staff Sergeant’s behaviour was unacceptable, and constituted harassment, yet failed to take any steps to address the matter by reprimanding Staff Sergeant MacDonald. In counsel’s submission the Inspector’s failure to reprimand Staff Sergeant MacDonald constitutes acceptance of the behaviour. Counsel noted that there was a notation in Staff Sergeant Moores’ notebook that he received a call on February 18, 1998 from Inspector MacKillican regarding his “concerns over threats to privatise made by MacDonald.” Counsel argued that this notation clearly indicates that Inspector MacKillican was fully aware that Staff Sergeant MacDonald’s treatment of the grievor was harassment.
Counsel argued that the grievor’s performance evaluation – done less than a week after the grievor’s working conditions grievance had been filed - also constitutes reprisal. Counsel argued that despite a long-standing record of exemplary performance, the grievor received the kind of evaluation that one would expect to read of a problem employee. Counsel argued that the evidence provided to the board to explain the comments in the performance appraisal regarding the early morning incident where an employee did not have the proper approvals to enter the building, and where the grievor’s decision making capability was questioned, was evidence that she was actually following written rules and policies. Counsel argued that the grievor is a careful employee who had been advised while under Staff Sergeant Moores’ supervision, that the sergeant should err on the side of informing him of a problem or incident at the time, even if that meant a call at his home.
Counsel argued that even a letter of commendation from a visit to the headquarters by an inspector in the service ended up with a negative outcome for the grievor. Inspector Morrison stated in his letter praising the grievor that he was impressed with the initiative she took “without prior knowledge to accommodate us in this professional manner.” On the commendation letter Ms. Girling was told not to allow visitors into sensitive areas without prior approval of each manager in each area. Inspector MacKillican testified that he would have had concerns about visitors entering the forensic area. However, the grievor did not take anyone into any sensitive areas such as the forensic lab. Counsel also noted that a memorandum was sent to all the sergeants stating that they are not to give tours of any bureau or workstations unless they have explicit authorisation beforehand.
Counsel for the grievor argued that this example shows that the grievor could do nothing right in the eyes of her supervisors. In the one instance she is chastised for not seeking managerial approval for conducting a supervised daytime tour with an OPP Inspector and three guests. And in the earlier incident she is chastised for not using her own discretion to permit an employee, who she did not know, into an extremely sensitive work area, a computer closet, without approval in the off hours – something clearly against the rules.
Counsel argued that evidence of numerous day-to-day incidents revealed the extremely antagonistic attitude of her supervisors towards her. She relied on the evidence about the grievor’s attempt to get her personnel file. Counsel argued that the employer’s insistence that police orders apply to the sergeants amounted to active obstruction of the arbitration process. By requiring the grievor to access her personnel file according to the police procedure, there was significant delay in getting her file. She also relied on evidence regarding obtaining her notebooks for the hearing. The grievor, having been asked to produce her notebooks, was told upon returning after a hearing day to GHQ that the books had been “confiscated.” Staff Sergeant MacDonald, upon Inspector MacKillican’s direction, was having the notebooks photocopied. Further, she relied on evidence that when Ms. Girling asked a question about procedure it was seen as a challenge to her supervisor’s authority.
Counsel argued further that while Inspector MacKillican stated in evidence that he had nothing to do with the delay in her getting her file, or anything to do with the response to the grievor about complying with police orders, documents found in Ms. Girling’s personnel file included a draft of a memorandum to Ms. Girling from Staff Sergeant MacDonald forwarded to Inspector MacKillican for his review. The Inspector did make editorial changes to this memo in his own handwriting. Further, an email from Staff Sergeant MacDonald clearly advised Inspector MacKillican of the grievor’s request for her personnel file. And an email sent back to Staff Sergeant MacDonald from the Inspector directed him to ensure that these orders were followed regarding this requisition.
Counsel submitted further that the Inspector’s statement that Ms. Girling could only review her personnel file on her own time was contrary to the normal practice of allowing OGPS to see their file whenever it was available during working hours. Counsel argued that the memos and the email that were tendered in evidence came to the grievor’s attention by accident when she found them in her personnel file.
In summary, counsel argued that the incidents noted above reveal an ongoing and hostile pattern of planned aggression against the grievor as a result of filing a grievance concerning the cancellation of the lieu days.
By way of relief the grievor claims:
Paid compensation for lost lieu days from December 21, 1997 until the decision is rendered, and a reinstatement of the lieu days from that date;
Pre and post-judgement interest;
Written apologies from Staff Sergeant MacDonald and Inspector MacKillican for the harassment which the grievor was subjected to because of filing a grievance;
An order from the board that the employer cease and desist all threats harassment and intimidation directed at the grievor;
An order from the board directing the employer to follow established policy guidelines, recommendations and or practices in any subsequent attempt to alter the hours of work of the sergeants;
Costs on solicitor and client basis.
Submission of the Employer
Counsel for the employer submitted that the grievor’s argument for the lieu days was based in part on the proposition that the sergeants’ position does not fit with a schedule 6-work week. He noted that the sergeants were placed in schedule 6 as a result of a grievance and the decision of the Public Service Rating Committee in Johnston, Daniels and Watts v. Ministry of the Solicitor General C/0007/87. He submitted that the pay increase that came with this decision does not permit the grievor now to seek benefits that go beyond the decision. The issue of the grievor’s work schedule was res judicata, and therefore the board lacks jurisdiction to hear what is essentially a request for relief from the outcome of the Johnston decision.
Claim for Lieu Days
Counsel for the employer argued that the grievor’s claim for lieu days is based on the theory that she works through her meal period. The employer understood the position to be that since she works through her lunch period, she is actually scheduled to work more than the 36.25 hours per week required for schedule 6 employees. Thus she is entitled to greater compensation than she receives. Counsel submitted that Section 9 (1) of the Public Service Act provides that schedule 6 employees work no less than 36.25 hours per week. Counsel argued that there is no provision for greater pay or benefits if the employee works more hours. Moreover, counsel argued that evidence before the board is that the grievor is not working more than 36.25 hours on an average week and that the grievor does not work during her lunch hours.
Counsel argued further that there is no legislation, policy or practice requiring the employer to pay schedule 6 employees for a meal period, even if that meal period is not responsibility free. Counsel argued that the grievor was responsibility free during her lunch period, and noted that a review of the grievor’s notebook revealed no instances in which the grievor was required to respond to an emergency or significant incidence during a lunch period. He argued that if an employee was required to leave lunch on an emergency on an infrequent basis, this did not entitle the employee to a paid meal period. The 5 MCO days provided to schedule 6 employees compensate an employee for time spent responding to an incident during lunch in counsel’s submission.
Counsel argued that the meal period policy put before the board applies only to OPSEU employees, and not to management excluded. Even if the policy did apply to the grievor, she does not meet the test set out in the policy because she is “responsibility free” during her meal period.
The Employer’s Right to Alter the Employee’s Work Schedule
Counsel argued that the evidence showed that when GHQ took over the management of the OGPS sergeants there was a decision to reschedule the sergeants to meet the operational requirements of GHQ. The employer was of the view that because the sergeants were being given a 15-minute meal period, on paper, the sergeants were in fact receiving 54 unearned hours of lieu time every 48 weeks. Counsel noted that Staff Sergeant MacDonald testified that there were problems ensuring a sergeant was on duty at all times, given the number of lieu days given to sergeants. Because of the differences in operations between Toronto and GHQ, a decision was made that a 15-minute lunch period was not necessary at GHQ and instead 1.25 hours would be provided. The new work schedule reduced the lieu days from four to one. Counsel argued therefore that the new work schedule for sergeants was changed for valid operational reasons. There was no evidence to support discriminatory or arbitrary reasons for the change in the work schedule.
Counsel cited “Brown and Beatty” as authority that the employer has the right to determine work schedules as an inherent part of management rights.
Arbitrators have confirmed management’s right to implement a schedule of continuous of 7 day operation, add or eliminate a shift, stagger or reduce hours of various employees… change the hours of existing shifts, change a lunch hour…
Counsel argued that there was no legislation, contract, or policy or practice to restrict the employer’s rights to change the work schedule to fit its operational needs. Counsel noted section 9(1) of Regulation 977 of the Public Service Act states in pertinent part:
The hours of work per week which shall be performed by civil servants in the classification set out… [d] in schedule 6 shall vary in accordance with the requirements of the classification, but shall not be less than 36.25 hours.
Counsel argued that while section 9(1) provides the minimum required hours for employees on schedule 6, it does not affect management’s right to arrange the work schedule within that minimum of 36.25 hours per week.
Counsel argued that there were no policies that restricted the employer’s right here to determine the sergeants work schedule. He argued that there was nothing in the “Hours of Work Policy” that restricts the employer in changing the schedule. Counsel asked the board to accept the employer’s interpretation that the words “hours of work can vary but are not less than 36.25 hours per week” means that schedule 6 employees can have variable works hours depending on the job requirements with an overall average of 36.25 hours per week. Counsel argued that the only restriction on schedule 6 employees was that they are not to work less than 36.25 hours per week.
Submission in Response to the Grievor’s Estoppel Argument
Counsel argued that the elements necessary to establish an estoppel here have not been shown. He submitted that while the grievor’s counsel had argued that the agreement to give four lieu days was part of a grievance settlement, no evidence was provided to the board that a grievance had been filed with Staff Sergeant Moores. Counsel argued that there had been no reliance and no detriment to the grievor. At most, the elimination of the lieu days was to remove a perk. In the alternative, the employer counsel submitted that if there was an estoppel, the estoppel could be ended with notice. And that notice was given at the meeting of November 4, 1997. Counsel submitted that there was sufficient evidence to establish that on November 4, 1997 the sergeants knew that there lieu days were being removed.
Counsel directed the board’s attention to evidence of the meeting with Inspector MacKillican and the grievor on January 21, 1998 and the Inspector’s evidence that he told the grievor she was entitled to 1.25 hours for lunch. The grievor’s notebook entry for that date supports the Inspector’s testimony that because of a staff shortage the extra lieu days had to be removed. And also that it was the Inspector’s view that compensation for lunch was a perk. Counsel argued again that at the stage two meeting of this matter on April 15, 1998 there was further discussion between the parties on the rational for the removal of the lieu days.
Counsel for the employer argued that even if the board found that an estoppel or practice had been established regarding the extra lieu days, notice that they were to come to an end was given at a meeting on November 4, 1997. In the alternative, counsel argued that the January 12, 1998, April 15, 1998 meeting, and the memorandum dated December 14, 1998, together constituted valid notice that the practise of awarding four lieu days had come to an end.
Counsel also argued that an estoppel cannot override the law, which requires the sergeant to work a minimum of 36.25 hours per week. Further, counsel contended that even if the elements of the estoppel had been established, the board has discretion to make an equitable remedy. He argued that it would not be fair in the circumstances to grant that remedy. The circumstances in his submission are as follows:
The grievor testified that she regularly takes 1.5-hour lunch. The grievor already receives MCO days to compensate her for any occasions when she is required to work extra hours. In addition to her MCO days Inspector MacKillican has agreed to compensate the grievor in lieu days, at the rate of time and a half, if she has to respond to an emergency during her meal period. Even under Inspector MacKillican’s work schedule, the grievor is receiving unearned lieu time. Inspector MacKillican has made every effort to be flexible in addressing the issue of meal periods.
Submission on Harassment
Counsel for the employer submitted that the employer strongly denies the allegations that the grievor has been harassed as a result of filing her grievance. He stated that relations had not been friendly, but the evidence did not support a finding of harassment.
Counsel argued that the employer had several options when it assumed the management of the OGPS at GHQ.
Privatisation of the security service.
Lower the classifications of the bargaining unit.
Eliminate the sergeants position, and allow them to compete for bargaining unit positions. Counsel argued that Inspector MacKillican fought and succeeded in keeping the sergeants position.
Counsel noted that the allegations made regarding harassment were serious, and that even if I accepted everything tendered by the grievor as true, it did not amount to harassment. Counsel argued with regard to the January 16, 1998 meeting of the grievor and Staff Sergeant MacDonald that the Staff Sergeant’s words to the grievor were not threatening, but merely informing her of what might have occurred if management had not fought to retain the sergeants position. His statement to her that if she wanted to grieve that she could go ahead, but that if she won they might well privatise the service was not a threat because the Staff Sergeant had no authority to privatise the service. It was counsel’s submission that the comments made to the grievor in this interchange were made because the Staff Sergeant felt the grievor was ungrateful and he was venting his feelings. In counsel’s submission this did not reach the level of harassment.
With regard to the grievor’s meeting with Inspector MacKillican on January 21, 1998 and the grievor’s allegation that the Inspector did nothing to reprimand the Staff Sergeant for the harassing comments made to her on January 18th, counsel argued that there was no reason for Inspector MacKillican to reprimand the Staff Sergeant MacDonald because there was no harassment. Counsel argued that the employer’s position was that even if the grievor’s version of the conversations is taken to be completely true, there is no evidence that the Staff Sergeant harassed the grievor.
Counsel argued against the grievor’s submission that the February 12, 1998 performance appraisal was extremely negative, by submitting that the performance appraisal consisted of constructive criticism on essentially one issue: “the grievor’s failure to take the initiative to make decisions on her own.” Counsel argued that this was an ongoing criticism of the grievor and noted that a performance appraisal made in January 1993 stated that Sergeant Girling “occasionally seeks out advise for situations she is capable of handling herself.”
Counsel for the employer argued with regard to being told by the employer that she must follow police orders to access her personnel file, Inspector MacKillican’s opinion on this is correct. However, even if Inspector MacKillican was wrong, counsel argued “it was clear from his testimony that he honestly believed that they did apply and that he was required to follow them.” Therefore any delay in permitting the grievor to see her personnel file, did not amount to an act of obstruction of the arbitration process.
Counsel further submitted that when Inspector MacKillican was cross-examined as to whether or not he was involved with the process of the grievor’s request to get her personnel file, the Inspector stated that he had nothing to do with it, he had forgotten about his input. When presented with an earlier draft of a memo signed by Staff Sergeant MacDonald concerning the grievor’s request and edited with additional comments in the Inspector’s own hand writing, Inspector MacKillican stated that he remembered that he had assisted with the memo.
To the grievor’s argument that she was chastised for not showing initiative and chastised for showing initiative, counsel argued with regard to the employee seeking entry to the computer closet without proper authorization, Staff Sergeant MacDonald testified that Ms. Girling’s options would have been as follows
To let the person in with an escort,
Let the person in and write an incident report,
Check the person’s identification to ensure that the person was an employee and permitted in the building,
Check for the person’s name in the computer and allow the person in. The employer in this case considered the comment in the performance appraisal based on this early morning incident to be significant, valid, constructive criticism, in counsel’s submission.
Regarding the incident where the grievor was given a commendation letter from a visiting inspector of the OPP, counsel argued that the notation on the letter does not remove the commendation. The employer had a concern that an area such as the forensic laboratory be part of a tour simply made it clear that that was not to happen without prior approval of the manager. Because this was a concern of management all the OGPS sergeants were notified.
In summary, counsel argued that the grievor had thrown a pattern of a series of minor incidents at the board to suggest an ongoing course of conduct. In counsel’s submission this was unfair to Inspector MacKillican and Staff Sergeant MacDonald.
Counsel relied on the following cases in support of his submission. OPSEU (Fischuk et al) and the Ministry of Correctional Services, 2830/91 (Gray); OPSEU (Addison et al.) and the Ministry of Correctional Services, 1314/85 et al. (Wright); S.V. Clark et al. and the Ministry of the Solicitor General and Correctional Services, P/0026/94 (Willes); OPSEU and the Ministry of Labour, 1055/88 (Verity); OPSEU (Tratnyek) and the Ministry of Community and Social Services, 1875/87 (Fisher); OPSEU (Mellun) and the Ministry of Correctional Services, 0159/88 (Barrett); Bertolo, Tighe and the Ministry of the Solicitor General and Correctional Services, P/0008/95 (Leighton).
Decision
Arbitrability
I am not persuaded that the grievance is not arbitrable because the matter is res judicata. The grievance is essentially complaining about a change in working conditions, after the employer stopped a well-established practice of scheduling rest days to compensate for routinely scheduling the sergeants over their required weekly hours.
Working Conditions Grievance
The next issue to be addressed is whether Sergeant Girling is entitled to three lieu days removed from the 56-day schedule when GHQ took over daily management of the OGPS in October 1997. Having carefully reviewed the evidence and submissions of the parties, I conclude that the sergeants are no longer entitled to these days. The employer decided that in order to meet operational needs, and in order to reduce costs – two legitimate reasons for management to change a work schedule – that the sergeants would be given a 1.25 hour unpaid lunch break. The employer has the right to change the schedule as long as the hours worked accord with the Public Service Act and regulations passed pursuant to the Act. Since the sergeants are schedule 6 employees they are required to work 36.25 hours minimum per week.
Much evidence was tendered on the issue of whether sergeants were responsibility-free during their lunch break. This is the test that the Grievance Settlement Board has applied in considering whether an employee within the bargaining unit is entitled to a paid lunch break. Without a provision in the collective agreement providing for a paid lunch break, employees must continue with their responsibilities throughout their lunch in order to be paid. The grievor’s position was that she continued to be responsible, to respond to any call within five minutes. This had been the practice under Staff Sergeant Moores in Toronto, and initially in Orillia. Sergeants were expected to carry radios and not to leave the premises. These conditions for lunch were changed under Inspector MacKillican. However, it was not until the hearing of this matter that the Inspector realized that the sergeants were unaware that their newly created lunch break was to be totally unencumbered. Therefore, on December 14, 1998, Inspector MacKillican issued a memorandum to all OGPS Staff Sergeants informing them that they could leave the premises and have a totally unencumbered lunch break. Evidence provided after this announcement supports the conclusion that sergeants leave the premises to go and do their banking or whatever errands are necessary, and that they are not required to be at work.
I am not persuaded by the argument that the employer is estopped from changing the schedule. The lieu days granted previously were clearly meant to compensate for scheduled hours of work beyond the 36.25, which the sergeants were working by being on call and required to respond within five minutes, even if they were taking a meal. Since schedule 6 employees are not eligible for overtime, they are normally paid for time worked beyond their minimum hours in lieu time. Since the employer was previously scheduling the sergeants routinely beyond their 36.25-hour requirements, it was reasonable to schedule in regular lieu days. Once work was not required through the lunch break, the need to schedule rest days disappeared. I am not persuaded that the requirement to carry radios signifies that the sergeants are still working. It is not the carrying of a radio that led the arbitrator in Meaford to conclude that the ambulance attendants were on duty, but the obligation to respond to a call within two minutes. While there was some confusion in the evidence on this point I am satisfied that the employer’s evidence is that the sergeants do not have to respond. Inspector MacKillican testified the radios were for the sergeant’s protection only. If the sergeants were still expected to respond to emergencies on their lunch break then they would be entitled to be paid. As noted in the Meaford decision, it is not whether employees actually respond to an emergency, but the requirement to do so that makes them working through lunch. Thus, since the sergeants are entitled to a lunch break “unencumbered” they are not entitled to be paid.
Further, I am not persuaded that the agreement to grant the sergeants four lieu days was part of a grievance settlement. There is no clear evidence to support this.
Since notice of the unencumbered lunch was not clearly provided to the sergeants until December 14, 1998, and before this the grievor considered, reasonably so, that she was required to respond to calls during her lunch break. Ms. Girling is entitled to be paid the “lost” lieu days up until the December 14, 1998 memorandum.
Having carefully considered the other submissions of the grievor, I am not persuaded on the evidence that there has been differential treatment with the sergeants and Sergeant Alexander. Sergeant Alexander works in a different capacity as an administrative support to Staff Sergeant MacDonald and her ours of work are scheduled differently. Finally, I am not persuaded that the lieu days must be retained in order to satisfy the policy that there should be a pay gap between the sergeants and their subordinates.
In summary, the grievor’s working conditions grievance is granted in part. She is entitled to lieu days removed between December 1997 and December 14, 1998.
The Harassment Grievance
Ms. Girling has grieved that as a result of filing her working conditions grievance on the loss of the lieu days, the employer has engaged in a course of conduct amounting to harassment. Having carefully considered the evidence, I find that Ms. Girling’s evidence was clear and credible. As indicated earlier, where there was some dispute as to what was said in the meeting with Staff Sergeant MacDonald and Ms. Girling, I have preferred the grievor’s evidence. Staff Sergeant Moores’ memory was not as clear as Ms. Girling’s. The Staff Sergeant did not deny making the statements to Ms. Girling that if she won her grievance the employer might privatize the security service. Indeed, the evidence in Staff Sergeant Moores’ notebook recording Inspector MacKillican’s concern confirms this over “MacDonald’s threats to privatize.” The Staff Sergeant also made threats to privatize the OGPS to Sergeant Quirt.
Further, although the Staff Sergeant explained that there was no threat to Ms. Girling in his statement regarding her possible success in a job competition, it was not unreasonable for Ms. Girling to consider this a threat. Ms. Girling’s evidence was that he stated his opinion that she would not have been successful in a job competition if it had occurred recently. These comments in conjunction with comments that Ms. Girling was negative, that if the grievance was successful the sergeants would be put back on eight hour shifts rather than twelve hours shifts, and that if they won the employer would take steps to ensure that any gain would be removed through schedule changes all lead to the conclusion that the employer was attempting to stop Ms. Girling from grieving.
Ms. Girling had a right pursuant to the Public Service Act to file a working conditions grievance, complaining about the change in the scheduling of the lieu days. Inspector MacKillican recognized this right in his meeting with the grievor in January 1998. While Ms. Girling had a right to grieve, the employer had a duty not to interfere with that right. The evidence noted above strongly suggests interference and a breach of that duty.
The evidence of the statements made to Ms. Girling in the January 16 and February 9 meetings cause concern to the board. There was no evidence or explanation given to allay the concerns. The submission that the Staff Sergeant was “venting” is not an adequate explanation. Neither is the argument that the threat to privatize was not significant because the Staff Sergeant did not have the power to privatize the service.
The evidence regarding the grievor’s performance evaluation is also problematic. While the employer argued that the performance evaluation was not negative, any reasonable person would interpret it as, at the very least, a poor evaluation. Ms. Girling had been told back in 1995, in the first performance appraisal after becoming a sergeant that she needed to be more confident in her decision making. However, this does not establish a pattern of someone who is not capable of making decisions. The performance appraisal done by the Staff Sergeant is completely out of line with previous good appraisals.
The example and the evidence supporting the incident used to justify the comment in the appraisal also causes concern to the board. Given the nature of the building, the OPP headquarters, and the crucial role that security plays in protecting that building, it is concerning that the employer’s position is that Ms. Girling should have simply allowed an employee, without required prior written authorization to enter the building. The employer’s position here stands in stark contrast to its reaction to Ms. Girling giving an OPP Inspector an unscheduled tour of GHQ during the day.
What emerges in the evidence about the performance appraisal, the commendation letter for the tour, the evidence that Ms. Girling’s notebooks had been “confiscated” and the police orders is supersentivity to the grievor. It can be understood if the employer viewed Sergeant Girling as a troublemaker, who should not be grieving or questioning its authority in any way.
The evidence was clear in the testimony of one of the employer’s own witnesses that the police orders do not apply to OGPS sergeants. And yet the employer maintained in final argument that, even if it was wrong on this, the employer believed that the police orders applied to the OGPS and, therefore, should not be found to be harassing the grievor. This argument has to fail. It is management’s responsibility to ensure that they do follow the right procedures and in requiring Ms. Girling to follow police orders in order to get her personnel file for the purposes of the arbitration hearing they not only caused distress to Ms. Girling, but they caused her delay in getting the documents that she needed for the hearing.
Further, Ms. Girling was chastised frequently for questioning whether police orders applied when, in fact, they did not. She was accused of questioning management and not following the chain of command. The criticisms suggest that it is the employer’s view that the grievor should never question her superiors: she had no right to question her performance appraisal, or challenge the loss of the lieu days.
With no explanation for the grievor’s treatment or evidence to counter what occurred, I find the grievor has established a pattern of harassment and reprisal, which, at least initially, was intended to dissuade Ms. Girling from grieving the loss of the lieu days.
Remedy
In summary, the grievor’s working conditions grievance is granted in part. Ms. Girling is entitled to lieu days removed from the schedule between December 1997 and until December 14, 1998. The grievor has asked for lieu days to be paid in compensation rather than in time. The employer opposes this. The board has made such awards in the past and there is nothing to prevent it from using its discretion to award an appropriate remedy. In the circumstances, payment is appropriate. Therefore, the board hereby orders that the lieu days removed from the schedule between December 1997 until December 14, 1998, is calculated, and compensation be paid in money and not time. This compensation shall include pre-judgment and post-judgment interest as specified in the Courts of Justice Act.
Having found that the employer engaged in a pattern of harassment and reprisal, attempting to interfere with the grievor’s rights under the Public Service Act, Ms. Girling’s harassment grievance succeeds. The board hereby further orders that the employer cease and desist all threats and harassment directed at the grievor. The grievor has requested apologies from the employer and these apologies are hereby denied. Arbitrators have consistently held that an apology ordered is no apology at all.
Costs
The final issue to be addressed is whether or not an order for costs on a solicitor and client basis should be awarded. This board has consistently held that costs should not be awarded to a party, except in the most exceptional circumstances Callaghan v. Ministry of Agriculture and Food, P/0009/89 (Willes). After carefully considering the submission of the parties on this issue, I have decided that exceptional circumstances here warrant the award of costs to the grievor for her harassment grievance. The board’s rationale for awarding costs in Callaghan rested on both the employer’s impropriety and in forcing the grievor to bring a second grievance. The employer’s harassment of the grievor, for filing her working condition’s grievance, resulted in a second grievance, which substantially increased the length of the hearing and the cost of litigating the case. Ms. Girling’s case took two and a half years to hear and was scheduled for twenty days, sixteen that went forward. After carefully reviewing the evidence of harassment and reprisal to estimate the time spent before the board on this grievance, I have decided to award two-thirds of the grievor’s costs on a solicitor-client basis. Post-judgment interest on costs should be calculated beginning one month after the date of this award.
I shall remain seized should the parties require assistance with the implementation of this award.
Dated at Toronto, this 8th day of May, 2002.