P-2007-1679, P-2007-1680, P-2007-2078, P-2007-2167, P-2007-2168, P-2007-2169, P-2007-2468, P-2007-2682, P-2007-2683, P-2007-2684, P-2007-2685, P-2007-2686, P-2007-2687, P-2007-2688, P-2007-2689, P-2007-3392
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Laforest et al.
Grievor
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Kathleen G. O’Neil
Vice-Chair
FOR THE GRIEVOR
Mario Laforest, grievor Robert Howes, grievor (April 17, 2008 only)
FOR THE EMPLOYER
Ryan Conacher Counsel Ministry of Government and Consumer Services
HEARING
April 16 and 17, 2008.
Decision
This decision deals with a number of grievances from two Operational Managers (OM’s) at the Toronto East Detention Centre (TEDC), which were scheduled to be heard together as they raise similar issues relating to overtime and escort duty for OM’s. In their grievances, the grievors claim entitlement to certain opportunities to work overtime and escort duty, and claim compensation for the missed work.
P-2007-2468, Robert Howes - Failure to Appear
On the first date scheduled for hearing of the grievances of both Messrs. Laforest and Howes together, Mr. Howes did not appear, and no communication was received by the Board, asking for an adjournment, explaining the absence, or otherwise. Mr. Laforest attempted to contact him by phone, but was not successful. Accordingly, the Board proceeded with Mr. Laforest’s grievance, and heard opening statements and a full day of evidence. Mr. Howes appeared on the second day, and informed the Board that a family matter had prevented him from attending, but did not elaborate or provide any further explanation, including any comment on why he had not contacted the Board, the employer or Mr. Laforest in any way on or before the previous day. The employer submitted that his grievance should be dismissed as no sufficient reasons had been given for the failure to appear.
The most relevant portion of the Board’s rules of Procedures reads as follows:
- Where any person properly served with a notice of hearing fails to attend the scheduled hearing, the Board may proceed to dispose of the grievance in that person’s absence and without further notice.
Mr. Howes was served with notice of hearing, and there is no suggestion that he did not receive it. Although an adjournment may be granted instead of a dismissal where sufficient reasons are provided to the Board for the failure to appear, that is not the case in respect of Mr. Howes’ grievance. He has not provided any explanation for his failure to contact the Board on or before the scheduled day of hearing, and was not available to be consulted by telephone when Mr. Laforest tried to contact him on the morning of the first day of hearing. In circumstances such as this, the Board has dismissed grievances in the past. See for instance: Teevens and Ministry of Government Services, PSGB#P/0006/91 (Willes) and Mitchell and Ministry of Community Safety and Correctional Services PSGB#P/1725/05 (Leighton).
It is incumbent on a grievor who wishes an adjournment to make some effort to contact the Board and/or the other party prior to a hearing or risk having his or her grievance dismissed. Here, the Board decided not to dismiss Mr. Howes’ grievance on the day he did not appear, preferring to see if any contact or sufficient explanation would be forthcoming. Although Mr. Howes did appear the second day, the extremely general nature of his explanation is insufficient to cause the Board to put his case over to another time. It would require redoing most of the evidence of the first day of hearing in order to accommodate Mr. Howes’ grievance at this point, a cost and inconvenience to the Board and the other parties, for which there is not sufficient justification before me. In the circumstances, his grievance is dismissed.
The rest of the decision deals with Mr. Laforest’s grievances and the preliminary issue of the content of the relevant terms and conditions of employment.
The Issue: Is there an identifiable term or condition of employment relevant to this grievance?
The parties wished to deal first with the issue of whether the grievor had established a term or condition of employment which the Board was in a position to enforce, and leave until a later stage the issues of whether there had been a breach of such a term and, if so, what remedy should flow for the several occasions of missed overtime or escort duty opportunities put in issue by the grievances now before me, and others not yet scheduled.
The grievor’s position is that there is a term and condition of employment consisting of a prescribed procedure and sequence for offering of overtime and escort duty to managers, which includes, most significantly, a requirement to offer overtime to managers for community escort duty prior to engaging police officers to do this work.
The employer’s position is that none of the procedures relied on by the grievor amounts to an entitlement to overtime or escort duty at all, and that how overtime is distributed to managers is a matter of the employer’s discretion, not subject to review by the Board except on the grounds of arbitrary, unreasonable or discriminatory application. In particular, employer counsel submitted that the documents issued as memos by the Assistant Deputy Minister and local Superintendent do not have the status of terms and conditions of employment. While acknowledging that those that are issued as policy or directives may have that status, counsel contends that there can be no enforceable term or condition of employment unless it is clear enough to be enforceable.
Mr. Laforest’s grievance is based on the assertion that the following documents, starting with the most recent, set out terms or conditions of employment in regards to the assignment of overtime and escort duty:
- November 12, 2007 memo from the Superintendent of the TEDC, Ms. Rose Buhagiar to Operational Managers, entitled “Overtime Hiring Process for Managers”
This was described by Superintendent Buhagiar in her evidence as an attempt to compile the relevant provisions from a number of documents, and by the grievor as the sequence to follow if overtime was available. It was clear from the Superintendent’s evidence that she expects staff to follow the memo, as well as that the needs of the institution were paramount in staffing decisions.
The principal points from this document relevant to these grievances are, in summary:
in order to ensure that the overtime for managers is fairly distributed, the following Overtime Hiring Process must be adhered to:
provision of overtime availability forms by the OM’s
when overtime is required, an orderly, documented sequence of contacting OM’s until the shift is filled.
if an OM believes they have been missed for an overtime opportunity, they are to refer the issue to the Deputy Superintendent, Operations for review with the Deputy Superintendent, Administration.
If it is determined that the hiring process was not followed, there is to be an offer of the first available shift to rectify the situation, but no remuneration from any variation of the hiring process.
Corrective action will be taken with managers who do not document and follow the overtime hiring process.
This document only addresses the distribution of overtime among managers and says nothing about hiring for escort duty.
- May 17, 2005 memo from Assistant Deputy Minister, Adult Institutional Services, Community Safety and Correctional Services, Mr. Gary Commeford, entitled “Overtime and Reassignment Protocols for Operational Managers”
This document directs all AIS Institutions to attempt to offer overtime shift assignments to confirmed and Acting OMs who were already in the schedule prior to Correctional Officers who are qualified to act as OMs and who have indicated their availability to work as well as retired OMs who have returned to work on a contract. It states that this practice would be followed as long as it did not conflict with meeting the Institutions’ overall operational requirements and financial objectives. It states that no compensation will be made for missed opportunities, however, efforts will be made to provide a subsequent overtime opportunity If the protocol was not followed.
Although it is not clear that this document deals with the circumstances in dispute in these grievances, it includes the idea that overtime opportunities are subject to operational requirements and financial objectives, and that no compensation will be available for missed opportunities.
- an October 2003 excerpt from the Adult Institutions Policy and Procedures Manual entitled Assigning Community Escort Duties
This document contains a section entitled “Procedures” which states that the OM assigning community escort duties is to be guided by the principles of public safety, public accountability and cost effectiveness and that if the use of overtime is required its distribution must be fair and equitable. A later section, “Assigning Staff”, provides that in order to ensure a consistent and fair method in the assignment of community escorts, and the backfilling of staff used for community escorts, institutions must use a sequence, which starts with several steps specific to correctional officers and moves on to steps that are at the heart of the grievors’ claim, as it indicates that, in an emergency, the police are to be used after exhausting OM resources. The latter steps in the process read as follows:
In an emergency, after exhausting the above procedures, use managers or acting managers who have completed community escort training.
In an emergency, after exhausting the above procedures, use managers or acting managers who have not completed community escort training.
After exhausting all above procedures, use other available resources (i.e. police).
In the event that a community escort commences without the required compliment of correctional officers trained in community escorts, the
Operational Manager responsible is obligated to continue in attempts to
contact and assign trained community escorts to relieve the persons initially
assigned.
Note: Institutions must not alter the above sequence. Managers must ensure accurate documents/records are maintained of all attempts to staff hospital escorts.
- June 18, 2001 Directive 08/01entitled “Assignment of Community Escort Duties- Adult Offenders”, addressed to Regional Directors – Adult Institutional Services from the Office of the Director, Operational Support and Standards
This document sets out a procedure which is very similar in content to the 2003 excerpt from the Adult Institutions Policy and Procedures Manual referred to above. A difference referred to in argument is that the list of considerations for the OM assigning community escort duty includes the words: “as well as ensuring the institution’s operational requirements are met”.
Two other documents, negotiated between the employer and OPSEU, concerning overtime and/or escort duty were also referred to in evidence and argument as potentially relevant to the situation of OM’s as well:
- A document entitled “Provincial Overtime Protocol” dated July 27, 2006, with an October 6, 2006 covering memo to all staff from the Corrections Division of the Provincial Overtime Protocol Sub-Committee of MERC (Ministry Employee Relations Committee) and four editions of a Questions and Answers section, dated October 6 and November 1, 2006, April 4 and October 17, 2007.
This document, with the stated intent “to streamline the assortment of existing practices” in various institutions, provides the distribution and call-in sequence for overtime for Correctional Officers which “clears the way for a computer-supported implementation of both the Provincial Overtime Protocol and the Community Escort Protocol”. It does not refer to managers directly except in their role of calling in bargaining unit people.
- July 11, 2004 Memorandum of Settlement between OPSEU and the Ministry with reference to Grievance Settlement Board file #1753/99, relating to community escort training and assignments with an Appendix as to procedures revised March 22, 2005.
The “Procedures” appendix to this Memorandum of Settlement provides a detailed call-in procedure for correctional officers, the last paragraph of which reads as follows:
Once the correctional officer resource is exhausted by following the
above steps, management reserves the right to utilize other resources
to ensure escort is completed. (Italics added)
The employer called evidence concerning this document from Daryl Pitfield, now Regional Health and Safety consultant for the Ministry. A signatory to the July 11, 2004 Memorandum of Settlement, he was then OPSEU’s provincial health co-chair and served on the community escort sub-committee. Mr. Pitfield testified that the union did not envision Operational Managers as part of the issue they were concerned with, as they considered community escort work to be bargaining unit work rather than OM work. The union’s position at the time was that, beyond the confines of the protocol’s provisions for members of the bargaining unit, it was in the area of management rights to do what they thought necessary to engage community escorts. To his mind, “other resources” in the wording set out above meant whomever the employer chose to call, police or OM’s included. It was his view that the July 2004 Memorandum of Settlement superseded the October 2003 directive.
In cross-examination of Mr. Pitfield, Mr. Laforest referred to the OM job description that allows the OM to use discretion as follows:
Plans, leads and manages all shift activities to ensure efficient and effective operations, set priorities and manages workload, ensures that staff have adequate support and resources, and exercises discretion to adjust routines/procedures as necessary including in unusual, crisis or emergency situations as they arise.
Mr. Laforest also pointed out that it is part of the OM job to coordinate and control allocation of staff including outside escorts, and to ensure fiscal responsibility in the use of overtime. Although acknowledging that it was less expensive to use OM’s for community escort than police, Mr. Pitfield said that police might be used for a number of reasons. He testified that between the late 1990’s and 2006, police were used more than OM’s for community escort.
As to the term “emergency”, Mr. Pitfield used the example of a lockdown situation where all OPSEU staff were assigned to a post, which would give the employer the opportunity to use managers not assigned to a post such as the duty manager or institutional training manager for the escort assignment. The idea was that these managers, who would not normally be required to oversee staff or run a shift, could be used in an emergency, where an instantaneous type of response was needed, such as a case of heart attack, and a need to go to hospital immediately. He thought emergency denoted a life threatening situation. He said it was not usual to call on managers outside the institution itself for community escort duty and agreed with employer counsel that it was not likely OM’s would be available for escort duty if they were not already at the institution. However, he acknowledged that OM’s had been used for escort duty on some occasions.
As part of the procedure for activating escort duty, OM’s are expected to fill out a form which lists a sequence of contacts in which managers appear after correctional officers, and prior to “others”. In the context of the form, the parties were not in dispute that “others” normally means the police. The first instruction on the form is: “Please ensure all steps are followed in sequence.” When he first assumed his OM duties at TEDC, Mr. Laforest was told it was part of his duties to complete this form each time he activated escort, including police. It did not appear the form had been changed after the 2004 memorandum of settlement with OPSEU. Superintendent Buhagiar testified that the forms are supposed to be filled out, but are not always. She said that when police have been hired, the form generally indicates that no staff were available, so police were hired.
Superintendent Buhagiar’s summary of the situation when police are used rather than OM’s, is that it is mostly because the managers are not available, or when there are not enough OM’s to run the institution, since escort duty can be contracted out to the police whereas running the institution cannot be. Her basic message was that operational requirements have to be the priority, and if those requirements are met the OM assigning the work could go ahead and hire OM’s. She indicated that it made no sense to have managers at the hospital on escort duty, when they were needed in the institution. The overtime availability sheet shows which shift an OM is available for, not what post or position. However, it appears that when a manager is called to be offered overtime, the information about what the assignment would be might be part of the conversation, and might influence whether the shift was accepted. Once a manager is working, whether on escort duty or otherwise, it was common ground that they could be ordered to take up other duties, or return to the institution, if the need arose. It is also not in dispute that Ministry and police personnel are not to be mixed in a single assignment.
Mr. Laforest also said that when it is an emergency, the OM will take anyone he or she can get, as that is a situation beyond the OM’s control. However, when he is running the shift, and the situation is within his control, he will use the prescribed steps which include calling managers before police. Because it is less expensive to use OM’s to do escort duty than to engage the police, Mr. Laforest sees it as part of his duty to be fiscally responsible to try to engage OM’s before going to the police.
Submissions
The grievor Mr. Laforest argues that the evidence supports a finding that hiring OM’s prior to police is the best practice and the expectation where overtime availability has been indicated according to the required practice. Conceding that there is no obligation to give overtime, the grievor’s case is based on the submission that when a need for overtime is identified, there is an obligation to follow the procedure devised by the employer, including a requirement that OM’s are canvassed prior to police for escort duty.
By contrast, the employer’s case rests on the assertion that the grievors are claiming the enforcement of a promise that never existed, that the grievor has not established “something akin to a contractual term”, a term or condition of employment. Counsel submitted that in order to establish a term or condition of employment there ought to be a statute or policy where the intent is to establish a legal promise. As there is no statutory provision dealing with these issues, and there is no clear promise in the employer’s view, the grievances should not proceed further as no term or condition of employment has been established. Counsel invites a finding that there has been no meeting of the minds of the parties on the points claimed by the grievors, and no intent on the employer’s part to create a term or condition of employment.
In this respect, Counsel argues that to be a contractual term, it has to be clear, and that if it is not clear, as in this case, one can look at other sources. In counsel’s submission, this include the Memorandum of Settlement from 2004, which informs the Board about the employer’s intent even though it was negotiated with OPSEU rather than aimed specifically at OM’s. This document provides that management reserves its rights to exercise its discretion and there is no reference to managers’ entitlement to escort duty or overtime in their agreements. Accordingly, after the bargaining unit resource has been exhausted, there is no obligation to hire OM’s for escort duty prior to police, in the employer’s view. Employer counsel also submits that it is important to recognize that escort work is OPSEU bargaining unit work, which is a fact that should assist in interpretation of the situation. To the extent the employer cannot engage OPSEU members to do escort duty, the employer’s position is that it should have the unfettered discretion to have the work done while ensuring the operational needs of the institution are met.
As a practical matter, in light of what counsel termed the “myriad” of grievances of this nature waiting to be scheduled, he suggested that it would be a colossal waste of resources to embark on an examination of the exercise of discretion each time the police were hired to do escort duty. As for the form the OM’s are required to fill out when activating escort duty, counsel invites a finding that it was intended to aid OM’s in exercising their discretion, not to be a contractual promise. The employer acknowledges that OM’ s can be considered for overtime or escort duty, but counsel underlines that the grievor has acknowledged that staffing decisions have to take many factors into account, including safety, operational needs and cost effectiveness.
It is the employer’s position that the OM’s have never been promised expressly that they will be considered before police or where this will all fit with considerations like cost and public safety. Counsel also suggested that the fact that it is the OM’s themselves who exercise the discretion over overtime and escort duty assignments means that the OM’s are in a conflict of interest as far as these grievances are concerned, which counsel suggested was an indication that the right they assert did not exist in the first place. It does not make sense, in counsel’s view, that OM’s would have day to day control over a term and condition of employment.
Further, and in the alternative, employer counsel submits that any promise to canvass OM’s before police was extinguished by 2004 because the practice has been that police are used more than OM’s since then. Counsel observes that any express recognition of the possibility that managers would be used for escort duty is coupled with the word “emergency”. Further, Counsel submitted that the word “emergency” is too vague a word to be part of a contractual term.
Conclusions
To start, it is appropriate to underline that there is no comprehensive written collection of the terms and conditions of employment for managers and other provincial employees excluded from collective bargaining, such as there is in a collective agreement covering unionized employees. Some of the terms and conditions of employment for excluded employees are found in the Public Service of Ontario Act and its regulations, and others such as pay rates are sufficiently known that their content may not be in dispute, although their interpretation and application may be. Here, we are in the situation where the parties are at issue over the existence and/or content of the terms and condition of employment in relation to the assignment of overtime and escort duty. While conceding that statute or policy established with intent to create legal relations would establish a term or condition of employment, the employer argues that the documents relied on by the grievor do not amount to such an enforceable promise.
Starting with the document with the broadest application, the 2003 excerpt from the Adult Institutions Policy and Procedures Manual concerning community escorts, its terms set out the statutory authority for its issuance, and read in a directive manner, stating that institutions must not alter the sequence set out there for assigning staff, which clearly indicates a sequence which includes using managers prior to police in an emergency. It is an employer generated document which appears to establish rules which are intended to be adhered to in all institutions. On its face it appears to be the kind of document conceded by the employer as capable of establishing a condition of employment, and it appears to create one affecting operational managers, i.e. that in an emergency, managers are to be used before police. This was also the case in the earlier document from 2001. There was no evidence sufficient for me to find that it was not intended to be adhered to, enforced, or to form part of the managers’ terms and conditions of employment, nor authority for that proposition. Thus, I conclude that it formed part of the managers’ terms and conditions of employment when it was issued in 2003. However, what is offered to the OM’s in that document is limited to the portion of the process that states that in emergencies, OM’s will be used in a sequence in which they appear before police.
The employer took the position that it is discretionary whether or not the employer offers overtime or escort duty to managers, and therefore the only question for the Board is whether the policy and procedures on overtime and escort duty are arbitrary, discriminatory or in bad faith. The grievances do not claim that the policy and procedures are defective in that way; rather the grievors ask for their application. Nonetheless, it is true that, other than those set out in statute, many of the terms of the managers’ employment, are set by the employer in its discretion, including aspects as central to the employment contract as remuneration. However, once that discretion is exercised, and terms and conditions of employment are communicated to employees and accepted by them, they become enforceable, until and unless they are amended, changed or revoked. Moreover, in the absence of some authority for the proposition, I am not persuaded that employer policy documents cannot amount to terms or conditions of a manager’s employment or are unenforceable because the employer could have provided something different. Nor does the fact that the employer can revise managers’ terms and conditions of employment render the current ones unenforceable.
All the evidence supports a finding that the employer’s discretion in regards to what personnel will be used for escort duty and calling staff for overtime has been delegated to the OM’s, who are required to take into account a number of factors in exercising that discretion, including the safety of the inmates and staff in the institution, community safety, and cost as well as following the protocols in place. As noted, counsel suggested that the OM’s are as a result in a conflict of interest position concerning overtime and escort duty for OM’s. Although it is not inconceivable that an OM’s exercise of discretion in a given instance could raise a conflict of interest, I am not persuaded as a general matter on the material before me that the delegation of discretion to the OM’s itself puts them in a perpetual generalized conflict of interest in regards to calling in other OM’s for escort duty and/or overtime pursuant to a prescribed protocol.
Employer counsel argued further, that the sequence set out in 2003 concerning escort duty was changed by subsequent events, including the negotiation of the settlement with OPSEU, which left it up to the employer to turn to other resources after exhausting OPSEU staff, without specifying a sequence of considering managers before police in an emergency or otherwise. It is my view that the terms negotiated with OPSEU do not on their face alter anything applying to OM’s in regard to any entitlement to escort duty. The only language in the settlement with OPSEU which appears to affect managers, other than in their role in calling in bargaining unit staff, clearly reserves to management the right to use other resources, i.e. other than the bargaining unit, but does not prescribe anything further. It may be possible for agreements between the employer and OPSEU to affect the terms and conditions of the employment of managers, such as if work that had previously been done by OM’s had been agreed to be reserved exclusively to the bargaining unit, but that is not what the documents in evidence provide. Thus, I do not find that the terms of the agreements with OPSEU provide direction on the terms and conditions of employment for managers relevant to this grievance.
Similarly, the decision of the Grievance Settlement Board dated September 12, 2007, Ontario Public Service Employees Union (Megahy et al.) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) GSB #2002-2103 (Brown) dealing with overtime for correctional officers in the same institution, cannot determine this dispute as it deals with an issue arising between OPSEU and the employer about the bargaining unit. Nonetheless, it sets out some of the background of the subject of escort duty, including a decision of the Office of Adjudication dated August 24, 1998 which stated that a minimum of two staff should be assigned to accompany an inmate. The Megahy decision also serves to highlight that issues concerning escort duty and overtime are quite important to many employees.
Counsel also argues that the 2003 document is not enforceable because it is too vague, especially in its use of the word emergency. It is apparent from the evidence that its terms have given difficulty in application, but I do not find them so unclear that one could state that its provisions are void for uncertainty.
As noted, the evidence did not disclose anything sufficient to find that the 2003 directive was not intended to create a term or condition of employment when it was issued. Further there is no evidence that it has been revoked in the interim. Nonetheless, the general law about employment contracts, especially those not governed by collective agreements, recognizes that the employment relationship changes over time, and that conduct and practice can create or clarify a term or condition of employment, whether written or oral. This is a question of fact to be determined by the history of the relationship of the parties. See for instance, Rose v. Shell Canada Ltd. (1965), 1985 CanLII 675 (BC SC), 7 C.C.E.L. 234 (B.C.S.C.)
The evidence of the history between these parties shows that, although the agreements with OPSEU did not themselves change things for the OM’s, there was some change in practice after the agreement with OPSEU. Superintendent Buhagiar testified that prior to 2004, there had been a preferential consideration of OM’s prior to police for escort duty, but that since that time, the practice had changed so that the current intent was that operational needs were the priority. She added that it had become the premise that the operational priority was for OM’s to be running the institution rather than being out in the community doing escort duty. There was no evidence about whether or how this change was communicated to OM’s. Nor did the evidence indicate what the employer has communicated to the OM’s in recent years on the issue of how to handle the decision of whether to turn to OM’s or police in any given situation. Nonetheless, Mr. Laforest was clear that, when acting as OM responsible for activating escort duty himself, if there was an immediately urgent situation, with no time to undertake canvassing of OM’s, he would call the police. He would then try to arrange more economical relief for the police, something his superintendent said she would expect as well. He stated that the responsible OM should take everything into account, including the principles of public safety, and agreed that the institutional needs take precedence. This indicates a fair amount of agreement about the expected practice in a very urgent situation.
As noted, there was also evidence from Mr. Pitfield that he thought police had been called more than OM’s in recent years for community escort duty, but this evidence did not deal with whether these were all situations of the very urgent kind about which there seems to be consensus that the police should be called. Nor did the evidence indicate the extent to which police were called preferentially in routine or pre-scheduled situations where bargaining unit personnel were not available or whether the practice is different at TEDC than other institutions covered by the 2003 memo.
As noted above, the employer’s submission invites a finding that the practice since 2004 has been that police are routinely called, such that, to the extent the 2003 policy created a sequence requiring the OM’s be contacted before police, it has been extinguished by practice. The evidence did indicate that OM’s are sometimes used for escort duty, but did not specify in what circumstances. The other evidence supports a finding that in an emergency, at least of the “911” variety, the police will and ought to be called. The evidence did not make clear whether there is any other kind of emergency where there has been or would be time to engage managers. It is appropriate to emphasize that if there is not, then there is little or nothing of substance left to the portion of the 2003 policy which contemplates using managers in an emergency prior to police. In that case, the precedence articulated in 2003 and earlier for managers has been effectively extinguished. It may be that the priority consideration for managers for escort duty was intended to be for managers already at the institution but not assigned to a crucial post at the time, as suggested in Mr. Pitfield’s example. There may be occasions when such managers are available faster than police, but since two are required, and police and Ministry staff are not assigned together, this may not normally be feasible. In any event, considering managers already at the institution for escort duty does not seem to be Mr. Laforest’s focus concerning escort duty. His grievances appear to be about occasions when he was not called in for overtime to perform escort duty.
Once the police have been called, there is the opportunity to relieve them by assigning other staff as they become available. There is no evidence supporting a finding that this would still be properly considered an emergency. Since there is no evidence or document supporting a finding that OM’s are entitled to consideration prior to the police for escort duty in a non-emergency situation, I do not find that to be part of the OM’s terms and conditions of employment. Nonetheless, the superintendent indicated that if the operational needs were met, (and presumably where no bargaining unit members were available in the necessary time frame) the work could be offered to OM’s. However, there is no guarantee of this type of work.
The other key document relevant to these grievances is the superintendent’s 2007 memo entitled “Overtime Hiring Process for Managers”, which amounts to an overtime assignment protocol. There was nothing in the evidence which forms a sufficient basis for a finding this was not intended to be a term or condition of the managers’ employment, albeit perhaps a local one. The Superintendent testified that she was attempting to consolidate directions from several sources when she issued it, and that she expected memos to be followed. Further, the grievor accepted that they ought to be followed, and did not challenge its sufficiency or propriety. It appears from the evidence that the overtime process set out in the memo has been intended by the employer to be followed for sometime, and that by its conduct and the practice at the TEDC it is a legitimate expectation of the managers who work there that it will be followed as part of their working conditions.
However, the Overtime protocol only comes into play where it is decided that hours should be offered to OM’s as overtime. And very significantly in terms of remedy for this grievance, it is clear that the overtime protocol provides no monetary remedy for missed opportunities. The protocol contains a remedial process within its terms: an OM is to turn to the Deputy Superintendent who will consider the situation and offer an overtime opportunity if the protocol has not been followed.
As for the May 17, 2005 memo from Assistant Deputy Minister Commeford, the evidence does not support a finding that this does not amount to a term or condition of employment, but it is not clear at this stage whether its terms are engaged by the fact situations put in issue by the grievances.
To summarize then, on the evidence before me thus far in the proceedings, the following documents provide terms and conditions of employment to the extent elaborated above, and summarized here for Operational Managers, at least at TEDC:
- November 12, 2007 memo from the Superintendent of the TEDC to Operational Managers, entitled “Overtime Hiring Process for Managers”.
To summarize the content, OM’s are entitled to the benefit of the sequence for offering overtime set out in this memo. This includes the provision that an OM is to turn to the Deputy Superintendent for a decision as to whether the hiring process was followed and that there is to be no monetary remedy for a missed overtime opportunity.
- May 17, 2005 memo from Assistant Deputy Minister, Adult Institutional Services, Community Safety and Correctional Services, Mr. Gary Commeford, entitled “Overtime and Reassignment Protocols for Operational Managers”
If any of the fact situations engages a situation of an assignment of overtime in contravention of its terms, it may be pursued under the overtime protocol set out above, with no monetary compensation for a missed overtime opportunity.
- The October 2003 excerpt from the Adult Institutions Policy and Procedures Manual entitled Assigning Community Escort Duties.
This document provides for use of OM’s in an emergency prior to police, but is no longer an applicable term or condition of employment to the extent that it has been varied by practice to exclude very urgent situations such as “911” situations where there is no time to engage managers. If any of the fact situations involved in the grievances included what may be a rare emergency situation where there was time to engage managers, but no effort was made to engage managers prior to police, despite the availability of managers who were not otherwise required for institutional needs, it may be pursued under this policy.
On the material before me, OM’s have no entitlement to escort duty in a non-emergency situation. Although there is no prohibition against offering such work to managers where the appropriate procedures for bargaining unit personnel have been exhausted, and the institutional needs for OM’s have been met, there is no guarantee of such work in the terms and conditions of employment established in the evidence.
Further, if the claim for escort duty involves a missed overtime opportunity, it must be pursued under the overtime protocol, which provides consideration by the Deputy Superintendent of offering a substitute opportunity, but no monetary remedy for a missed opportunity. It is important to note that where a grievor does not refer the matter to the Deputy Superintendent, there is no remedy provided under the overtime protocol.
As the parties agreed to proceed just with the preliminary issue of the content of the terms and conditions of employment, and they did not present evidence or argument on the fact situations involved with the grievances, this decision does not grant or dismiss any of Mr. Laforest’s grievances. The parties are directed to consider their positions on the outstanding grievances in light of this decision and to discuss resolution where appropriate. If the grievor decides not to proceed with any of his grievances, he is directed to notify the Board. If there is further need for the intervention of the Board, either Mr. Laforest or the employer may ask the registrar for hearing dates or request further direction or mediation from the Board.
Dated at Toronto this 21st day of July, 2008