PSGB#P-2014-2665
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT OF ONTARIO
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Hasted/Berezowsky
Complainants
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Marilyn A. Nairn
Vice-Chair
FOR THE COMPLAINANTS
John Hasted & Evelyn Berezowsky
FOR THE EMPLOYER
Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel
HEARING
December 9, 2015
Decision
1This complaint was brought on behalf of both John Hasted and Evelyn Berezowsky. Both are currently Operational Managers with the Ministry of Community Safety and Correctional Services (the “Ministry”). The matter was scheduled for mediation on December 9, 2015. Prior to that date the employer advised that it had no position to mediate and further notified the Board and the complainants of two preliminary objections to the complaint proceeding. Those objections had been identified in the employer’s response to the notice of proposal to file a complaint. The complainants set out their position on the preliminary issues in an e-mail response, and, on December 9, 2015, confirmed that they were prepared to proceed to have those matters heard. In the result, I heard the two preliminary objections raised by the employer. This decision addresses those issues.
2At the outset, the complainants indicated that they had understood that there had been a settlement of the issues at the local level. The employer was not aware of any agreement and no settlement document had been executed by the parties. The complainants agreed that it must be assumed that no agreement had been reached.
3As the complainants were unrepresented, it was agreed that the employer would set out the facts on which it was relying and its argument on each objection and then allow the complainants an opportunity to address any factual concerns, following which I heard the complainants’ argument and employer reply. Much of the factual information was not in dispute or was not challenged for purposes of the preliminary issues.
4The application sought the payment of “agreed compensation for all hours of standby while at the Toronto Intermittent Centre”. That application expressly relies on the information and assertions contained in the complainants’ notice of proposal to file a complaint (the “Notice”). That Notice is somewhat broader and asks that:
The current practice of the grievers [sic] “On Call” be redefined as a “Stand By” to accurately reflect the expectations and responsibilities.
The Managers be compensated as per the Management Compensation Directives as Schedule 3.4.5 Managers to ensure fair and equitable application policy [sic].
Retroactive compensation to the grievers for “Stand By” duties dated back to January 2011.
General damages for each griever, $25,000.
A commitment by the employer to establish a working group comprising of MCP Schedule 6 Managers assigned to “Stand By” duties and the Employer in an effort to address concerns from the group and alleviate inequities brought forward by the group.
5At the hearing the complainants clarified that, fundamentally, the complaint concerns the employer’s failure to compensate them for on call duties performed when the complainants were assigned to Acting Deputy Superintendent duties at the Toronto Intermittent Centre (“TIC”). The Notice asserts that the employer has treated its Management Compensation Plan (“MCP”) employees in an “unfair, unequal and inequitable manner”. Further, that the employer “has not exercised its authority to implement a directive for the fair and equitable compensation for work done by the MCP Schedule 6 Group, as per Section 33. (3) of the PSOA”.
6The Notice refers to the Management Compensation Directive (the “Directive”) at sections 21.(2) and 22.(2) as providing definitions of “on call” and “stand by” and notes that the facility on call manager performs stand-by duty in addition to the 36.25 hours per week schedule “in which our compensation is currently based”.
7The Notice also states that, “[t]here are not provisions in the PSOA or Management Compensation Directive that allow or to [sic] speak to any premium compensation for Schedule 6 Managers”. There appears to be no dispute that Deputy Superintendents fall within Schedule 6 of the Directive. Having identified various asserted factors, including heightened risk within correctional services, increasing job demands, and an enhanced need for accountability, the Notice asserts that inconsistent and arbitrary application of policy has created inequities among the manager group, noting also that lower subordinate classifications may receive higher compensation. This appears to be a reference to the unionized group of employees who are compensated for on call and/or standby duties in accordance with the terms of their collective agreement.
8Mr. Hasted began the Acting Deputy Superintendent assignment at TCI in March 2012. That assignment ended on January 5, 2014. On January 6, 2014 he returned to his home position as an Operational Manager on a temporary assignment at Maplehurst Correctional Centre and he has since moved to the Ontario Correctional Institute.
9Ms. Berezowsky began the Acting Deputy Superintendent assignment at TIC in April 2012. That assignment ended on January 19, 2014. On January 20, 2014 she began an Acting Deputy Regional Director assignment and, as of December 2014, returned to the Ontario Correctional Institute as an Operational Manager.
10The Notice is dated July 21, 2014 although signed by the complainants on July 23, 2014. The employer received it shortly thereafter.
11At the hearing, Mr. Hasted stated that when they arrived at TCI it was explained that there was a system in place whereby Deputy Superintendents received a day off for being on call for a week. However, such was not the case at TCI, they were advised, because the complainants were scheduled to work Saturdays and Sundays instead of being on call those days. TCI houses offenders who serve their sentences on an intermittent basis, typically on weekends. He stated that the complainants accepted what they were told while working at TCI. Mr. Hasted further stated that, in July 2014 however, a senior manager told them that they should have received an additional day for the hours they were on call for the institution outside of their working hours. The Notice was filed within days of receiving that advice.
12According to Mr. Hasted’s understanding, this compensation is not provided through the Management Compensation Directive, but is a practice in place within the Ministry for Deputy Superintendents. According to Mr. Hasted’s assertion, rather than payment of the amount of $1.25 per hour provided for some managers in the Directive for being on call, Deputy Superintendents’ on call days are tracked via a monthly attendance form and a day off for each week of on call is provided. For purposes of these preliminary issues, the employer did not challenge these assertions, and the existence and/or scope of any such compensation remains a matter relevant to any hearing on the merits.
13In terms of remedy, the complainants now seek ‘on call days’ for periods they were on call. They estimated that they had each been on call for about 22 weeks in 2013, which would result in compensation for 22 days each for 2013. The complainants estimated that they were each on call an average of two weeks per month during their acting assignments at TCI.
Timeliness
14The employer took the position that the notice of proposal to file a complaint was filed outside the time limits required and that the Board was thereby without jurisdiction and was precluded from hearing the complaint. It referred to the decisions in St. Amant and the Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), PSGB No. P2012-0601, January 31, 2013 (Carter); John Hauth and the Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), PSGB No. P2013-1411, October 18, 2013 (Carter); and Mike Lee et al and Jim Allen and the Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), PSGB No. P2010-0702, P2010-1055, July 21, 2011 (O’Neil).
15The employer argued that these cases make it clear that the time limits for filing the Notice are mandatory and that the Board has no discretion to extend the time limits. Those time limits require the filing of a notice of proposal to file a complaint within 14 days after the complainant becomes aware of the working condition or term of employment giving rise to the complaint. The complainants concluded their work at TCI in January 2014. The employer argued that, even were the alleged breach of a continuing nature, the 14-day time limit would have run from January 2014. The Notice was not filed until July 2014, some six months later.
16Further, argued the employer, the provision could not be read so as to allow a notice of proposal to file a complaint to be filed within 14 days of learning that there might be a legal argument in support of a complaint. Such an interpretation would effectively eliminate the mandatory time limit, argued the employer. There was no evidence that this entitlement was provided at TCI during their assignment there, noted the employer, and even on the complainants’ own statement, did not exist during their employment there.
17It was the complainants’ position that the Notice was timely, the Notice having been filed immediately after they were advised of the working condition/term of employment. It was only after they left TIC, they argued, that they were advised of their alleged entitlement.
Decision - Timeliness
18For the reasons that follow, I find that the notice of proposal to file a complaint in this case was not given in a timely manner. The cases referred to establish clearly that the time limits for filing a notice of proposal to file a complaint, set out in sub-section 8(4) of Regulation 387/07, are mandatory and that the Board has no discretion to relieve against those time limits. The decision in John Hauth, supra, concludes:
2In three recent cases, the Public Service Grievance Board considered the legal implications of the requirement imposed by section 8 of Regulation 387/07 to give notice of a complaint to the Deputy Minister. In Jackson v. Ontario (Ministry of Community Safety and Correctional Services) [2011] O.P.S.G.B.A. No. 8 the Board made it clear that notice to the Deputy Minister was an essential precondition for it to take jurisdiction over a complaint. At paragraph 38 of that decision, the Board stated:
Furthermore, there was no suggestion that the Board can simply ignore the fact that the preconditions in sections 8 and 9 were bypassed, or that there is power in the Board to treat the matter as if those preconditions had been met…If the complainant was not eligible to file the grievance, there is no grievance properly before the Board, and it must be dismissed.
3A similar approach was taken by the PSGB in a second case, Muldoon v. Ontario (Ministry of Community Safety and Correctional Services) [2011] O.P.S.G.B.A. No. 13, where the complainant had failed to give the required notice in respect of several complaints. The Board stated in that case:
Given that the required notice was not given by the complainant in respect of any of these complaints, the legal consequences are that the complainant was not eligible to file these complaints with the Board so that these complaints are not properly before the Board.
4In both of the above cases, there had been a complete failure to give any notice to the Deputy Minister, and the Board held that the combined effect of sections 4 and sections 8 of Regulation 378/07 was to make giving notice of a complaint an essential condition of its jurisdiction. In the third and most recent case, St. Amant v. Ontario (Ministry of Community Safety and Correctional Services) [2013] O.P.S.G.B.A. No. 2, the Board dealt with the situation where notice had been given but that notice fell outside the required time limits. The Board stated in that case:
The Board does not consider that this difference changes the outcome for this complaint. Given the mandatory language of the 14 day time limit set out in section 8, the Board must conclude that notice given within that time limit is also just as much a precondition for it to assume jurisdiction over a matter as the requirement to give the notice.
5The complainant did not dispute the employer’s contention that in this case he had received a ten-day suspension on September 27, 2012, and that his notice of a proposal to file a complaint was filed on November 21, 2012, with his Deputy Minister. The filing of this notice was clearly well outside the 14 days stipulated by section 8(4) 2 of Regulation 378/07. As the Board held in the St. Amant case, notice within that time limit is a precondition for the Board to assume jurisdiction over a complaint. The late filing of this notice means that the complainant was not authorized by that Regulation to file a complaint with the result that the Board has no jurisdiction to deal with it.
6The language used to prescribe time limits in the new Regulation 378/07 leaves no doubt as to its mandatory nature. Given the mandatory nature of these time limits and the lack of any express statutory authority to relieve against these mandatory time limits, the Board has no power to alter the jurisdictional consequences of a failure to comply with the time limits set out in section 8 of that Regulation. It is for this reason that this complaint must be dismissed. This conclusion is in no way a reflection on the merits of the complaint itself but merely a determination that the Public Service Grievance Board, as a tribunal created by statutory enactments, can only stay within the limits of these enactments.
(emphasis added)
19These decisions make it clear that, unless the notice of proposal to file a complaint is filed within the regulatory time limit, the Board has no jurisdiction to consider the complaint. They also make clear that the Regulation intended to impose strict time lines for the filing of a notice of proposal to file a complaint, putting the employer on timely notice of an issue and removing any ability of the Board to extend that time limit.
20Was this Notice, dated July 2014, given in accordance with the time limits? Sub-section 8(4) of Regulation 378/07 states:
Notice of proposal to file a complaint
- …
(4) The notice must be given within the following period:
- For a complaint about a working condition or a term of employment, within 14 days after the complainant becomes aware of the working condition or term of employment giving rise to the complaint.
21The words, “after the complainant becomes aware of the working condition or term of employment giving rise to the complaint” are ambiguous. If the phrase were interpreted as simply meaning 14 days from the point at which one becomes aware of the working condition or term of employment, it would lead to an absurdity. Provided there was no breach within the following 14 days, no complaint about a later breach of the term of employment could ever proceed. For example, an employee is told (and thereby becomes aware) on their first day of employment that they are to be paid $30 per hour, and initially, they are in fact paid that amount. Subsequently however, the employer pays the employee $25 per hour. A notice of proposal to file a complaint is filed immediately on receipt of the pay stub showing the deficit. Yet that notice would be untimely and such a complaint could not proceed if all that is required is knowledge of the working condition or term of employment.
22The additional words “giving rise to the complaint” arguably refer to some breach of the working condition or term of employment, as it is typically the alleged breach of a provision that gives rise to a complaint. It is more reasonable to interpret the time limit as running from the date that a complainant becomes aware of circumstances giving rise to the complaint, rather than the mere existence of the working condition or term of employment.
23The complainants argue that this is what happened; they filed their complaint within 14 days of learning of the alleged breach of the working condition or term of employment. I disagree. The complainants were scheduled for on call duties throughout their acting assignment without complaint. To suggest that one can accept identified terms of employment without challenge, only to have an opportunity to challenge them long after those terms are no longer applicable as a result of a change in assignment, is to put the employer in an untenable position and alleviates the employee of any responsibility to ensure that they are being compensated appropriately. It also renders meaningless the short and mandatory time limits set by the Regulation in clear contradiction to its intended purpose of bringing issues to the attention of the employer at the earliest, failing which the Board is rendered powerless to deal with the issue.
24The complainants acknowledge that they accepted the employer’s recitation of their terms of employment at the outset of their assignment. The complainants had expressly been informed that, allegedly for reasons having to do with scheduling at TCI, they were not entitled to the compensation they now claim. In other words, they were aware of the working condition or term of employment – that is, that they would be required to perform on call duties and further, that they would not be specifically compensated for that work. In addition to understanding the employer’s position, they were then in a position to investigate and challenge that position. Any complaint about the fact that they were not going to be specifically compensated for such duties crystallized at that time, at the outset of their assignment. Similarly, in St. Amant, supra, the Board found that the time limit ran from the date that the complainant understood that the employer’s delay in responding to her request for a leave of absence rendered her unable to utilize the leave. The Board found that the employer’s failure to respond by a given date “brought the matter to a head” at that time (para. 9).
25The appropriateness of that interpretation is highlighted by the fact that a breach of this asserted working condition or term of employment might well have been characterized as continuing, occurring each time the complainants were required to be on call, thereby allowing the complainants an opportunity to challenge any alleged violation throughout their assignment, although likely limiting the remedy available to them. There was no continuing breach of the alleged entitlement after January 2014, as the working condition was no longer engaged. Neither complainant continued to perform on call duties at TCI after January 2014. Yet they seek compensation for the entire period of their assignment, a remedy that may well not have been available to them had they raised the issue during their assignment.
26I am persuaded that, in the circumstances here, a timely notice of proposal to file a complaint was required to have been filed no later than 14 days following the end of the Acting Deputy Superintendent assignment at TCI, or, no later than 14 days from the date of payment reflecting the completion of that assignment. In either case, the July 2014 Notice was well beyond a timely date.
27I find therefore that the complaint is untimely and, as a result, must be dismissed.
28If I am wrong in this conclusion regarding the interpretation and application of sub-section 8(4) of Regulation 378/07, I find that the complainants have effectively waived any right to advance the claim they are now asserting. As noted above, they were aware from the outset of the employer’s position that they were not entitled to specific compensation for on call and/or standby duties while in the Acting Deputy Superintendent assignment. They performed those duties and accepted the employer’s position without challenge for the full duration of the assignment. From a contractual standpoint, the complainants admit that they accepted that term during the period of the assignment. For this reason, the complaint is dismissed.
The classification issue
Although not necessary for the disposition of this application, the employer indicated that a number of other similar complaints are outstanding which may not give rise to a timeliness issue. For that purpose it asked that a decision be rendered on its second preliminary objection. The findings below remain specific to the circumstances of this case and may or may not assist other parties in the conduct of other litigation.
29Sub-section 4(2) of Regulation 378/07 provides, inter alia:
(2) The following matters cannot be the subject of a complaint about a working condition or about a term of employment:
The assignment of the public servant to a particular class of position.
30It was the employer’s position that the claim for compensation in this case is, in effect, a claim to be treated as falling within a classification other than the assigned Schedule 6 classification, a claim it asserts is precluded by the sub-section cited above. The complainants acknowledged, noted the employer, that Schedule 6 employees are not eligible for standby or on call compensation under the Directive. The complaint, it argued, seeks to have the Board treat the complainants as falling within a different classification thereby making them eligible for on call and/or standby pay in accordance with the Directive. As the complainants are asking to be treated in the same manner as those within a different classification, this is a classification grievance, argued the employer, and accordingly, the complaint cannot proceed given sub-section 4 (2) 2. of the Regulation.
31The employer referred to the following decisions: Stephen Johnston & Hank Vipari and the Crown in Right of Ontario (Ministry of Community and Social Services), PSGB No. P/0003/99, November 8, 1999 (Leighton); G. Bertolo, E. Tighe and the Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services), PSGB Nos. P/0008/95; P/0005/95, February 22, 1996 (Leighton); and J. Gleason and the Crown in Right of Ontario (Ministry of Transportation), PSGB No. P/0040/92, February 20, 1998 (Leighton).
32It was the complainants’ position that this was a claim for compensation for hours worked while on call, not a classification grievance. While the complainants understood that the compensation requested was not “written down anywhere”, they argued that, whether or not the compensation was provided for in the Directive, there was a past practice of providing such compensation, a matter referred to in the Bertolo case, supra. Reliance on a long standing past practice to compensate administrators for on call time was also raised by the complainants in their e-mail response to the employer’s statement of its preliminary objections.
33In reply, the employer argued that terms and conditions of employment are identified depending on the classification of the position at issue. The Board only has jurisdiction to consider the terms and conditions of that position in assessing any claim, argued the employer. In terms of past practice, if the complainants are seeking to refer to what may have occurred in the past, it was unhelpful, argued the employer, in determining the terms and conditions of employment currently. There was no suggestion that there was a practice at TCI, argued the employer. The remedy sought, argued the employer, necessarily required the Board to make Schedule 6 employees eligible for on call within the Directive, effectively rendering this a classification grievance.
34Much of the employer’s argument goes to whether or not there can be or were applicable working conditions or terms of employment outside those expressed in the Directive. The decisions in Stephen Johnston & Hank Vipari and in Gleason, both supra, make it clear that the Board has jurisdiction to consider what working conditions and/or terms of employment were in place at the time of the complaint and that the term “working conditions or terms of employment” should be viewed liberally. See for example, pages 6-7 of the decision in Stephen Johnston & Hank Vipari. In taking jurisdiction in Gleason, the Board stated at pages 13-14 of that decision:
…That is, the Employer is right that this Board has no jurisdiction simply to review the salary range for a classification, to assess whether given the responsibility and requirements of the job it is being paid adequately. This is a true classification grievance for which the Board has no jurisdiction…
However, where there has been an allegation that there has been a breach of a working condition or term of employment - in this case, that a policy which formed a working condition or term of employment has been breached, the Board must adjudicate…
Although at first blush it might appear that Mr. Gleason’s complaint is a “classification” grievance, it is not. The Grievor is not simply asking for the Board to review the Employer’s decision to set appropriate pay levels according to qualifications and job responsibility. Counsel argued that evidence would be presented that showed a policy in place in 1990, which is part of the Grievor’s working conditions, and that the Employer had breached it. Whether or not the Grievor here is able to prove that there was such a policy in effect in 1990 and that it was breached is a question of the merits of the case, which can only be decided after hearing the evidence. Thus, I have concluded that the Board must take jurisdiction to hear this case.
Further, I am of the view that it is premature for me to consider the Employer’s argument that such a policy would amount to a fetter of the discretion of the Civil Service Commission…
35A determination of the working conditions and/or terms of employment applicable at the time of a complaint is a matter going to the merits of a claim and, had this complaint not been untimely, I would have concluded that the Board had jurisdiction to entertain the complaint, given the complainants’ assertion (not particularized) of a past practice constituting a term of employment applicable to Deputy Superintendents. Whether the matter asserted is able to be proven may only be determined following the hearing of the relevant evidence, but it is a matter within the Board’s jurisdiction to consider.
36Having regard to the findings made in paragraphs 27 and 28 above, this complaint is hereby dismissed.
Dated at Toronto, Ontario this 18th day of January 2016.