P-2014-0201

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

James Taylor

Complainant

• and -

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

Employer

BEFORE

Reva Devins

Vice-Chair

FOR THE COMPLAINANT

James Taylor and Jim Allen

FOR THE EMPLOYER

Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel

HEARING

August 13, 2015

Decision

1The grievor, James Taylor, has claimed entitlement to relocation expenses for his current assignment at South West Detention Center (“SWDC”). He had previously alleged that the employer had engaged in discrimination and reprisal, however he withdrew those aspects of his complaint prior to the first day of arbitration.

2At the commencement of the proceedings, the employer brought a preliminary motion asking that the complaints be dismissed in their entirety because the particulars do not disclose a prima facie case and fail to establish a breach or violation of the terms and working conditions of Mr. Taylor’s employment.

Background

3Mr. Taylor was employed as a Correctional Operational Manager 1 (“COM1”) at the Elgin-Middlesex Detention Center. Commencing in 2012, he submitted annual Expressions of Interest to the Deputy Superintendent of Operations at his home institution indicating his interest in working at the new SWDC. On July 28, 2014 Mr. Taylor formally requested a compassionate/ medical transfer to SWDC. His transfer request was granted October 27, 2014 and he was advised that as a voluntary transfer, there were no relocation entitlements. Mr. Taylor accepted the transfer, but told management that he believed that he qualified for reimbursement of his expenses. Mr. Taylor was offered the opportunity to reconsider his request, but elected to proceed with the transfer and challenge his eligibility for relocation benefits.

4The Relocation Expenses Directive provides as follows:

3.0 APPLICATION AND SCOPE

The following activities are not eligible for the payment and/or reimbursement of relocation expenses:

• employee requested moves or transfers (employees who ask to move to a new job in a new location when there was no recruitment activity (e.g. job competition) or ministry requirement to relocate the position)

5A competition for 5 COM1 positions at the SWDC closed on March 17, 2014 and the positions were filled through the regular recruitment process. Mr. Taylor did not apply or compete for these positions.

Submissions

6The employer notes that Mr. Taylor provided very few particulars of his complaints, despite repeated requests for further particulars. In the employer’s submission, he merely asserted that management failed to follow policy and protocol without identifying the grounds for his assertions, the specific sections of the policies relied upon or explaining the manner in which he alleges the employer failed to follow those policies.

7The employer further argued that the Relocation Expenses Directive and the Reassignment Protocols for Operational Managers, the employment policies that Mr. Taylor did mention, do not establish entitlement to relocation expenses in the circumstances of his move. The employer took the position that since Mr. Taylor had not linked the alleged failure to provide him with relocation expenses to a term or condition of his employment, the Board had no jurisdiction to grant the remedy requested.

8With respect to the Relocation Expenses Directive, the employer submits that it includes a clear statement that “employee requested moves”, such as that made by Mr. Taylor, are not eligible for the payment of relocation expenses. Similarly, in it’s submissions, the Reassignment Protocol confirms the general principles set out in the Relocation Expenses Directive, expressly stating that “reassignments will be considered to be at the employee’s request and relocation expenses will be the responsibility of the employee.”

9Employer counsel referred to a number of previous decisions of the PSGB in support of its’ arguments: James Allen et al. v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), P-2007-2921, March 3, 2009 (O’Neil); Kevin Ransome v. The Crown in Right of Ontario (Ministry of Health and Long-Term Care), P-2005-2314, October 30, 2006 (O’Neil); Garratt et al. v. The Crown in Right of Ontario (Ministry of Health and Long-Term Care), P-2003-1670, February 7, 2005 (O’Neil); Jim Antle v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), P-2005-1114, July 13, 2006 (O’Neil); Rory Kanerva v. The Crown in Right of Ontario (Ministry of Children and Youth Services), P-2013-0117, September 18, 2014 (O’Neil); Candace Kaine v. The Crown in Right of Ontario (Ministry of Children and Youth Services), P-2013-1036, April 17, 2014 (O’Neil); L. Scarr v. The Crown in Right of Ontario (Ministry of Health), P/0131/96, February 12, 1997 (Leighton).

10Mr. Taylor stated that he advised the Superintendent and Regional Director of his interest in being considered for a lateral move when he submitted Expressions of Interest to work at the SWDC. He was also encouraged to discuss his career goals as part of the Talent Management and career planning process described in the Reassignment Protocol. Mr. Taylor submitted that the Superintendent should have considered all employees who had expressed an interest in transferring to the SWDC before posting vacancies at that facility. Moreover, contrary to policy, Mr. Taylor did not receive written acknowledgement that he was considered before the positions were posted. Mr. Taylor stated that the employer failed to follow its’ policies in this regard, however, he acknowledged that if the policy had been followed, he would not have been eligible for relocation expenses.

11Nonetheless, in Mr. Taylor’s submission, the employer could have elected to waive the posting requirement when it held a competition for 5 new COM’s at SWDC. He believed that if he had been waived into the position, he would have been eligible for relocation expenses. In his view, that would have been a fair and ethical administration of the Reassignment Protocol and given meaning to his Expression of Interest. He admits that the employer did not have to waive the competition for him, but he asserts that they have ignored his request to move to SWDC since 2012 and that does not seem fair to him.

12Mr. Taylor also maintains that he was transferred when there was “recruitment activity” at SWDC and therefore he falls within the exception set out in the Relocation Expenses Directive. Mr. Taylor further suggested that the employer violated MGS HR Guidelines for Conducting Fair Recruitment, failed to follow MGS Talent Management in OPS and violated the Statement of Ethical Principles and Ministry Values (Doing the Right Thing) when it did not follow the Reassignment Protocol and consider his Expression of Interest before posting vacancies at SWDC. He also believed that if he had been granted a health reassignment he would have been entitled to relocation expenses, however, he was unable to identify the policy that provided that entitlement and did not provide further particulars related to his request for a health related transfer.

13The employer pointed out that Mr. Taylor did not particularise many of the specific concerns he now raises. The employer submitted that in any event, Mr. Taylor is essentially saying that he believes that management could have exercised their discretion differently, but he has not identified a term or condition of his employment that obligated them to follow a particular course of action. Mr. Taylor’s submissions reflect his view that he was treated unfairly. The employer argued that the Board cannot create a new term or condition of employment and cannot award a remedy in these circumstances.

14In the employer’s submission, the Relocation Expenses Directive clearly states that there is no entitlement to expenses where there is no Ministry involvement. The exception for moves when there is recruitment activity, “e.g. job competition”, relates to recruitment for the position to which the employee is relocating. The employer maintained that an interpretation that provides relocation expenses for all unrelated moves during a period of recruitment would broaden the scope of the exception with significant cost implications.

15The employer submitted that there is a separate process and protocol for employees who cannot perform the essential duties of their job and may require reassignment for health related reasons. The employer was unaware of Mr. Taylor’s application for a health related relocation and he did not provide any particulars in this regard. Similarly, there were no particulars to support his broad assertion that the guidelines for fair recruitment were not followed when the vacancies at SWDC were posted and filled. Moreover, it was submitted that these guidelines were broad commitments to fair behaviour and did not create a specific term or condition of employment.

Decision

16The Board has consistently held that it has the authority to dismiss a complaint without a full hearing if a case is not made for the order or remedy requested. This is confirmed in Section 9 of the Board’s Rules. The Board’s practice is well summarised in Allen et al., supra, at paragraph 12, as follows:

…Rule 9 makes it clear that if a complaint does not make out a case for the orders or remedies requested, the matter may be dismissed. In legal terms, this is referred to as lack of a prima facie (a Latin term meaning at first view) case. From a jurisdictional point of view, the Board is within its mandate to determine if a complaint makes out a case for the remedies claimed. However, in order to make out a case for the remedies requested, a complaint has to set out enough facts to establish that some term or condition of employment has been breached, and that some remedy is owed to make up for that breach. Establishing a viable case can be thought of as a chain with at least three links: first, grievors must establish an existing term or condition of employment; second, they must establish that the employer has breached that term or condition of the employment contract, and third, they must establish that there is a connection between the breach and the remedy requested, or at the very least, some remedy within the Board’s jurisdiction. The Board is not in a position to “fix” all complaints that come before it. Specifically, it is not given the authority to set terms and conditions of employment, or change or add to them because an employee or a group of employees does not like them, unless the terms set by senior management are unlawful, or in breach of some other contractual term of employment.

17In this case, Mr. Taylor wants to be reimbursed for relocation expenses he incurred when he was transferred to the SWDC. For the purposes of this motion, I have assumed that all of the facts that Mr. Taylor has put forward in both his particulars and during argument at the hearing are true and can be proved. The only issue before me at this stage is whether the facts Mr. Taylor relies on establish that a term or condition of his employment has been violated and that he is entitled to the remedy he now claims. In other words, is there a term or condition of his individual contract of employment that entitles him to relocation expenses?

18Mr. Taylor cited numerous employer policies in support of his complaint. In essence, he argued that he told his employer on numerous occasions that he wanted to be transferred to the SWDC. He advised management of his wishes through the Talent Management process and by submitting a formal expression of interest. The SWDC had a clear need for employees at his level and the Ministry recruited for five vacancies in the same period that he asked to be transferred. While he did not apply for any of these vacancies, he submitted that it was open to management to waive the competition with respect to one of the positions and transfer him into it. This would have been consistent with his wishes and the needs of the employer.

19Mr. Taylor recognised that his move was voluntary and that he was not strictly entitled to relocation expenses under the Reassignment Protocol or Relocation Expenses Directive. He expressly acknowledged that if management had transferred him when he first requested it, he would not have been entitled to any relocation expenses. However, Mr. Taylor claims that he became eligible for these benefits when the employer posted vacancies in his classification at the location to which he was transferred. First, he says that the employer could have waived the posting of one of the five positions at SWDC, assigned him to it and he believes that he then would have been entitled to relocation expenses. Secondly, he argued that because there was “recruitment activity” around the time that he was transferred to SWDC, he came within the exception found in the Directive.

20I am not persuaded by either of these submissions. Even if Mr. Taylor is correct in his interpretation that the employer could have waived him into a vacant position and that would have entitled him to his expenses, he admitted that they were not required to transfer him in that fashion. He accepts that this was no more than an available option. Regrettably for Mr. Taylor, where the employer is not required to act in the manner he suggests, there is no legal basis for me to find that they violated a term or condition of his employment when they elected to follow a different course of action. In effect, I would have to find that the employer had to transfer Mr. Taylor by waiving him into a vacancy, thus converting the employer’s option to a mandatory requirement. In the absence of a clear foundation that requires certain conduct by the employer, I would be changing the terms of his employment and adding a new condition if I granted the remedy requested by the grievor.

21Nor do I accept Mr. Taylor’s interpretation that because there was a competition for 5 COM’s at SWDC, his subsequent relocation to the facility came within the exception contained in the Relocation Expenses Directive. Mr. Taylor did not suggest that this was how the Directive has ever been applied to anyone else or that anyone from senior management promised him that it would apply to him in this circumstance. To the contrary, he was consistently and repeatedly advised that he would not be eligible for relocation expenses if his request for a transfer was granted.

22The interpretation advanced by Mr. Taylor is not consistent with the clear language used in the Directive, would result in the arbitrary availability of expenses depending on unrelated recruitment activity and therefore be unfair to other employees. Reading the Directive as a whole, it is clear that the exception for moves when there is recruitment activity refers to successful candidates who transfer into a vacancy as a result of that activity. It does not mean that everyone else who transfers into the facility at the same time become eligible for expenses that are otherwise unavailable to them. I interpret the Directive to provide for consistent treatment of affected employees: individuals are entitled to relocation expenses if they move because the Ministry requires them to move, including if they successfully compete in a job competition. Where an employee moves on their own initiative, they are not eligible for relocation expenses.

23In this case, Mr. Taylor had the option of applying for one of the five positions at SWDC, his preferred location. He chose not to compete. Management nonetheless considered and granted his request to be moved on compassionate grounds. In these circumstances, the Directive and Reassignment Protocol are absolutely clear that he is not eligible for his associated expenses. He was advised that he would not be paid for his move and given an opportunity to decline the transfer. He chose to proceed with the full knowledge that senior management took the position that he was not entitled to his expenses.

24Mr. Taylor also alleged that the employer should have transferred him on medical grounds and that this would also have made him eligible for relocation expenses. Despite his assertion, Mr. Taylor could not identify the policy that would provide relocation benefits or the manner in which the employer failed to follow its’ policies. Mr. Taylor did not provide any particulars of the employer’s alleged violation in this regard either before or at arbitration and did not suggest that he could provide further particulars if given the opportunity. Consequently, there is no basis to conclude that he is entitled to the remedy that he has requested.

25Mr. Taylor lastly referred to a number of other policies that he alleges were violated. He says that the recruitment process at SWDC was not in accordance with HR Guidelines; that representatives of the employer did not act with integrity or fairly; and management did not follow the MGS Talent Management process. All of these arguments are grounded in a general assertion that he was not treated fairly: the employer could have transferred him in a way that allowed him to be reimbursed for his expenses and they did not, despite the fact that he was an excellent employee who deserved to have his preferences honoured.

26I appreciate that Mr. Taylor has had a longstanding interest in moving facilities and that he does not believe that his employer assisted him in meeting his goals. I also understand that this would be frustrating and somewhat demoralising. Nonetheless, the Board has repeatedly held that it cannot provide a remedy in situations where there is no violation of any specific terms of employment but where the employee nonetheless feels that they have been treated unfairly. As explained by the Board in Kanerva, supra, at para 29, “general commitments to trust and fairness are not specific enough to translate into an enforceable contractual term”.

27I would note that Mr. Taylor was given several opportunities to provide further particulars and many of the facts he relied upon at arbitration had not previously been particularised. However, I have presumed that all of the facts that Mr. Taylor asserts, including those not in his particulars, are true and concluded that, on those facts, there has been no violation of a term or condition of his employment and the particulars do not establish entitlement to relocation expenses.

28The motion is allowed and the grievance is accordingly dismissed.