P-2008-0815, P-2008-0816, P-2008-0817, P-2008-0818, P-2008-0819, P-2008-0842, P-2008-1419
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
John Burritt et al
Complainant
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Kathleen G. O’Neil
Vice-Chair
FOR THE COMPLAINANT
John Burritt, Mark Farnham, Carrie Harding, Jonathan Wallace, Holly Wallace, Joe Sinacori, Karen McDonald
FOR THE EMPLOYER
Cathy Phan Ministry of Government Services Counsel
HEARING
May 6, 2009.
Decision
1This decision deals with applications filed by John Burritt, Mark Farnham, Carrie Harding, Karen McDonald, Joe Sinacori, Holly Wallace and Jonathan Wallace, all Operational Managers (OM’s) at the Central East Correctional Centre (CECC), in which they claim compensation and other remedies for missed opportunities to perform hospital escort duty, including but not limited to overtime opportunities.
2As the issues raised in these grievances appeared very similar to those dealt with in a preliminary decision of this Board dated July 21, 2008, in Laforest and the Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), PSGB # P-2007-1679, etc. (O’Neil) the Board advised the grievors that it proposed to deal with their grievances in light of the principles set out in that decision. The Board asked for and received submissions from the CECC grievors in that regard, in which they asked for an oral hearing rather than having their grievances dealt with entirely in writing. As there appeared to be potentially significant differences between the situation at CECC and the Toronto East Detention Centre (TEDC), the institution dealt with in the Laforest decision, the CECC grievances were set down for oral hearing.
3As set out in their applications to the Board, and elaborated at the hearing, the grievors complain that they have been denied the opportunity to facilitate hospital coverage guarding inmates who are in the custody of the Central East Correctional Centre. These grievances were precipitated by a situation in April 2008 where an inmate was in a Newmarket hospital continuously for over a week, and there was no attempt by management to hire institutional staff, whether Correctional Officers or Operational Managers. They state that similar situations have occurred before that date, and since. The grievors indicated that in such circumstances there would be more than adequate time to assign, reassign, or, if necessary, hire overtime to maintain hospital coverage.
4More generally, the grievors complain that since CECC opened in February, 2003, no Operational Manager has ever been offered an overtime shift to cover an extended hospital escort at any hospital other than Ross Memorial in Lindsay, the town in which the institution is situated, where the police do not do paid duty. The grievors object to the large amount of money being spent on paid duty police, when policy requires the preferential use of institutional staff.
5The grievors acknowledge that they would not have been entitled to all of the overtime generated by the many occasions when police were used, as the Correctional Officers appear first in the sequence outlined in the protocol, and any of the individual grievors might have been otherwise unavailable on any given day, but they submit that they would have had some of it if the policy had been respected at all. Further, they are of the view that it would be more cost effective to use Operational Managers for community escorts. In this they disagree with the superintendent’s stated position that out-of-town hospital coverage assignments were most cost effectively dealt with by using paid duty police.
6The grievors’ basic argument is that the failure to offer them any of the escort duty is a violation of the section of an October 2003 Adult Institutions Policy and Procedures Manual entitled Assigning Community Escort Duties. This document contains a section entitled “Procedures” which states that the manager 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. The grievors rely on the section entitled “Assigning Staff”, which reads as follows:
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 the following sequence:
Use correctional officers trained in community escorts (scheduled duty or overtime).
Extend shifts of correctional officers trained in community escorts.
Use available ICIT or CET members who have completed community escort training.
Use three classified correctional officers who have not completed community escort training.
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.
7The Board notes that the above policy was revised in July 2008 to remove the wording referring to emergencies and priority for managers before police. However, these applications were filed in May and June 2008, prior to the revision, and are not affected by the change.
8As remedy, the grievors request compensation in the amount of a tax-exempt financial payment of 5000 hours at their current hourly rate, as well as orders that the Central East Correctional Centre’s Operational Manager Overtime Protocol contain clear direction that Operational Managers shall be offered community escort overtime opportunities when operationally required in accordance with the policy set out above. Further orders requested include that the Central East Correctional Centre be required to use a customized H-Pro software installation that is Operational Manager specific, and that this be used to offer, track, and assign Operational Manager overtime in similar fashion to that of Correctional Officers, to include a functionality to allow an Operational Manager to indicate a preference for hospital duty assignments only. As well, the grievors wish the Board to order that it be mandatory that all Operational Managers who have not submitted any overtime availability still be contacted and offered the opportunity to work overtime performing community escort hospital duties prior to any pay-duty police officers being hired. Other than the financial payment, it is requested that the above remedies be implemented in all the Ministry’s Adult Institutions in a short defined time frame.
9The grievors stress that there are important differences between the situation at CECC and TEDC dealt with in the preliminary Laforest decision, which start with the fact that there was no protocol for the distribution of overtime in place at CECC until the summer of 2008. Prior to that, the grievors describe the situation as the general duty managers doing the best they could, with no direction or tracking. Further, police are not used at CECC in “911-type” emergencies. Correctional Officers or other available staff are used, and the grievance does not relate to “911-type” emergencies. For other situations, an additional difference between the two institutions is that the Operational Manager does not generally decide whether to call managers or the police. Rather, the general duty manager would contact a deputy superintendent who would make the decision as to whether police or an Operational Manager would be used. The deputy will often call to surrounding institutions to see if there are Correctional Officers available from the other institutions. The grievors also state that the administration at CECC has taken the position that hospital escort coverage for any and all hospitals located in their catchment area (with the only exception being the local hospital in Lindsay) are to be given to police immediately, in violation of policy.
10Although there are the above differences with the situation at TEDC, the overarching Ministry-wide policy documents are the same. These include the portions of the Adult Institutions Policy & Procedures (ADI) manual dealing with community escort. The underlying issue of whether Operational Managers are to be called before police to do hospital escort duty when correctional officers are not available is also the same. The resolution of this issue turns on the meaning of the word “emergency” in the policy in both cases, and the differences in the local situation in the two institutions do not, in the end, affect that.
11The grievors, like Mr. Laforest at TEDC, are of the view that the term “emergency” should be interpreted in a manner that covers what they refer to as staffing or operational emergencies. It is their position that staffing levels can constitute an “emergency” of an operational variety. Noting that it is impossible to run an institution without staff, the grievors give the example of a third of the scheduled dayshift staff calling in sick. They assert this is reasonably considered an operational emergency because the institution cannot function properly or safely with that amount of absent staff. The grievors observe that overtime is the Ministry-accepted remedy to such staffing emergencies, since the institutions have to function.
12The CECC grievors stress that there are a number of staffing emergencies during which managers must perform duties usually performed by Correctional Officers. These include strikes and job actions, Level 4 (ICIT) weapons searches, and health and safety work refusals involving all Correctional Officers. They submit that these situations illustrate that staffing levels do, in fact, constitute an emergency that require the use of managers already on shift and on overtime. The grievors consider it an emergency of the staffing variety whenever they do not have enough people to provide the required programming. They state that if there were no Correctional Officers available to perform community escort, it would mean that they had already locked down inmates and still had no one to go out to do the escort. The general duty manager would be “getting into ordering people back” to work.
13The grievors submit that the findings in the Laforest preliminary decision were too limited, and that if the policy had meant only medical emergencies when it used the word “emergency”, it would have said so. They submit that the variety of staffing emergencies described above shows that there is more than one kind of emergency that would allow Operational Managers to be used for escort duty. The grievors acknowledge that when an Operational Manager is unable to fill all vacancies on a roster by reassigning staff or with the use of overtime, police are, and ought to, be called in to cover the escort assignment. The step that is being missed, in their view, is the mandatory requirement that Operational Managers are to be used for escort duties in an emergency before police. The grievors’ central point is that when staffing level emergencies occur, it is mandatory that Managers be used prior to Police for escort coverage, either by reassigning Managers already on duty in specialty positions (Security, Scheduling, Compliance, Staff Training, etc.), utilizing Managers who work the compressed schedule and are present and in on their “spare weeks”, or by offering overtime to Managers. In other words, the grievors interpret the phrase in the policy, “In an emergency, after exhausting the above procedures…” to mean that the policy is defining the situation as an emergency when the manager has exhausted the above procedures and still has not found staff to do the escort.
14Employer counsel accepts that there is no prohibition against using managers for community escort duty, but submits that the situation is not one of entitlement to escort duty assignments since what the grievors refer to as staffing emergencies are not the type of emergency referred to in the policy. Rather, it means, in counsel’s submission, the very urgent “911-type” emergencies, which in this institution are dealt with by calling on managers if necessary. Further, counsel argues that if there are not enough Correctional Officers to staff the institution, it does not make sense to send managers out to do escort duty when they might be needed in the institution, since police are able to do escort duty, but not able to work in the institution.
15At the hearing of this matter, the grievors presented the evidence and arguments they relied on for their case, as noted above. The employer wished to adjourn to await the final decision in the Laforest matter, before questioning the grievors, but the Board directed counsel to complete the arguments the employer wished to put forward, and if it appeared that other evidence or argument were required to resolve the matter, further direction would be given. (As it turns out, the final decision in Laforest is being released at the same time as this decision.) Having reviewed all the material, evidence and arguments made in this matter, the Board has determined that the matter can and ought to be resolved on the basis of the material filed with the Board and the evidence and argument presented at the hearing. In doing so, the Board assumes all the facts asserted by the grievors to be true for the purposes of this decision.
16The main issue to be resolved here is a matter of contractual interpretation, concerning the meaning of the phrase “in an emergency” in the policy set out above. As the Board found in the preliminary Laforest decision, cited above, the policy’s provisions concerning the use of managers form part of the terms and conditions of the employment contract of Operational Managers. When the parties disagree over the meaning of the terms of a contract, as they do here, it is up to the Board to resolve the dispute according to generally accepted approaches to contractual interpretation. One of these approaches is that the parties to a contract are held to the ordinary meaning of the words used, unless there is evidence of a special shared meaning that is different from the ordinary meaning. Another approach is that all the words used are to be given meaning, and to be assumed to have had a purpose, and not to be superfluous. If the terms used in the contract are ambiguous, reference may be had to past practice, or other accepted methods of resolving the ambiguity, to see if by their conduct, the parties have clarified the meaning of the terms.
17The trigger for the option of utilizing managers for community escort duty in the above policy is “in an emergency” after exhausting the correctional officer resources. The term “emergency” is not defined in the policy, and the parties disagree about its meaning beyond obvious “911” medical emergency situations. As noted above, the grievors are not complaining about “911” situations. As in the Laforest case, the core dispute is over whether any of the situations in which the grievors say they should have been offered community escort duty prior to the police were properly considered an emergency of the “non-911” variety.
18The evidence before me does not persuade me that there is a shared, defined, or special meaning to the word “emergency” as part of the employment contract. I have carefully considered the grievors’ contention that the policy read as a whole means that, by definition, an inability to staff the escort duty is an emergency of the staffing, operational variety. This interpretation is not implausible, but I do not find it to be the best interpretation in all the circumstances. It runs up against the problem that, if that is the meaning, the wording “in an emergency” would be superfluous, as the preference for calling managers before police would be activated whenever the procedures relating to correctional officers had been exhausted. If this was the intended meaning, it would have been more clearly expressed by omitting the wording “in an emergency”, or putting “i.e.” after the phrase.
19In these circumstances, the interpretation should be based on the ordinary meaning of the term “emergency”. Although the word can be used in many contexts, it usually describes a situation arising with little notice or time to act, which will involve serious negative consequences unless immediate action is taken. This ordinary meaning is captured in the following dictionary definition: a sudden state of danger, conflict etc. requiring immediate action, or a medical condition requiring immediate treatment. (The Canadian Oxford Dictionary, 2001). Its root word is “emerge”, which carries the meaning of something that is just coming to light, and was not previously known. The element of sudden danger and immediacy is what is missing from the situations in which the grievors claim entitlement to escort duty. For example, where an inmate has been safely escorted to the hospital, whether by the police or correctional officers, there are staffing choices to be made as to how to cover the escort duty for as long as is necessary thereafter, but the situation no longer has the unpredictability and urgency of a sudden event that has just come to light. The grievors consider it an emergency when correctional officers are not available, and/or because it is costly to use police. However, the evidence does not persuade me to adopt that interpretation. Rather, is my view that the situations described by the grievors are recurring staffing situations, which if not entirely routine, are no longer properly considered emergencies after an initial emergency escort, and may be dealt with as they arise with less urgent, managerial decisions about the deployment of staff and finances, as they have been throughout the history of the CECC. In this respect, I accept that all staffing decisions relating to the custody of inmates are time-sensitive, but not all of them have the urgency of an emergency, as that term is ordinarily understood.
20Consideration of the history of the CECC in dealing with community escort is not strictly necessary to the resolution of this matter, as the ordinary meaning of the term “emergency” is sufficient to resolve the dispute. However, to the extent that the term can be considered ambiguous, or at least difficult to apply, one can refer to the practice at CECC in regards to the use of Operational Managers in “non-911” situations. That practice is that managers have never been used to do escort in these situations except occasionally in Lindsay where paid duty police are not available. This practice is consistent with the interpretation arrived at by applying the plain ordinary meaning of the term, and is thus supportive of the same result.
21Further, it is not necessary to address fact situations such as strikes, other job actions, mass work refusals, or weapons searches which the grievors submit are also viewed by the employer as emergencies. This is because none of the fact situations grieved fall into those categories. As well, even if the parties have a shared understanding of the situation as an emergency in those contexts, they do not, on the material before me, have such a shared understanding about the factual situations before me in this matter. In the result, it is more consistent with generally accepted rules of contract interpretation to apply the ordinary meaning of the word “emergency” in this case.
22It is appropriate to address two other submissions made by the grievors. First, it is their view that the superintendent was ignoring the policy in regards to the use of institutional staff, Correctional Officers as well as Operational Managers. Concerning the sequence applicable to the bargaining unit Correctional Officers set out in the policy, it is worth underlining that it is not for this Board to comment, as those are terms and conditions that do not apply to the Operational Managers. Indeed, the grievors were careful not to rely on the provisions relating to the bargaining unit to base their claim, but it is the Board’s finding that, in regards to Operational Managers, the policy was not breached in the circumstances grieved. Secondly, the grievors assert that the idea that the use of paid duty police is cost effective is questionable. In this respect, the policy does not contain provisions that entitle the Operational Managers to escort duty on the basis of relative cost effectiveness, nor has that otherwise been shown to be part of their employment contract. Thus, although the deployment of financial and other resources is always a subject on which equally reasonable people may hold differing views, it is not necessary or appropriate to inquire into the many variables that would go into a cost/benefit analysis of the use of police as opposed to Operational Managers in any given situation. This is because such an analysis is not necessary to the interpretation of any term or condition of the grievors’ employment contract. In any event, it continues to be the case that there is no prohibition in the policy against Operational Managers being called upon before police to do escort duty when Correctional Officers are not available and other operational needs are met, but no entitlement has been made out in the situations grieved.
23As to the remedial requests made by the grievors, the Board would only be in a position to grant any of them if a breach of their terms and conditions of employment had been shown. As that is not the case, it is not within the Board’s mandate to do so. I would nonetheless note that some of the proposed remedies relate to suggestions for change in the method of offering and tracking overtime aimed at increasing transparency and consistency which may be considered by the employer if so advised.
24For the above reasons, the grievances are dismissed.
Dated at Toronto this 15th day of October 2009.