PSGB#2015-2081

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Huppmann

Complainant

• and -

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

Employer

BEFORE

Marilyn A. Nairn

Vice Chair

FOR THE COMPLAINANT

Richard Huppmann

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel

HEARING

January 16, 2017

Decision

1By decision dated April 14, 2016 the Board made a finding that the complainant had been required to be on call during vacation periods and was therefore entitled to on call pay pursuant to section 21 of the Compensation Directive (the “Directive”). The claim was remitted to the parties for purposes of calculating the amount owing. The parties were unable to reach agreement with respect to the remedy. The hearing reconvened on January 16, 2017 and this decision deals with that issue.

2The complainant seeks payment for certain vacation days, regularly scheduled days off (“RDOs”), lieu days, compensating days, and statutory holidays taken throughout 2015. There was no dispute as to the characterization of the days claimed or the number of hours of on call each of those days would represent.

3However, the employer raised two issues with respect to the scope of the claim. First, it argued that the Board had no jurisdiction to provide a remedy earlier than 14 days immediately preceding the giving of the notice of proposal to file a complaint. Second, while it agreed that vacation periods included lieu days and compensating time off, it argued they did not include RDOs or statutory holidays.

The jurisdictional issue

4As the complainant gave timely notice of proposal to file his complaint and filed a timely complaint to the Board, there was no issue taken at the April 2016 hearing as to the Board’s jurisdiction to hear and determine the merits of the application. The scope of the Board’s remedial authority has, however, now been raised.

5The notice of proposal to file a complaint was given to the appropriate Deputy Minister on August 27, 2015. It is the position of the employer that the remedial claim can only start as of August 13, 2015, 14 days prior to the giving of that notice. The employer argued that, as the Board has no jurisdiction to extend time limits under Ontario Regulation 378/07 (the “Regulation”), it also has no jurisdiction to remedy the breach of a working condition or term of employment that occurred more than 14 days before the giving of the notice of proposal to file a complaint. To find otherwise, argued the employer, would render the mandatory time limits under the Regulation irrelevant.

6The employer argued that the one exception to this limitation arises where the claim is made under the Human Rights Code, wherein the Board has jurisdiction to interpret and apply that legislation as applicable to excluded employees. However in this case, it argued, the claim was simply with respect to a breach of a term of employment in the Directive.

7The employer acknowledged that the claim (subject to the second issue raised) properly continued until January 9, 2016.

8The complainant argued that he did not analyse the information he was being given; that he trusted the employer to be fair and therefore ought not to be held to a strict time limit. It was, he asserted, only after a realization that he and others would have to hold the employer to account that the complaint was filed.

9Does the Board have jurisdiction to provide a retrospective remedy beyond the 14 days prior to the giving of notice of proposal to file a complaint? The employer relied on the language of the Regulation and the Board’s decisions in and since St. Amant v. Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 4673.

10In that case, and in a number of subsequent cases (see for example, Hauth v. Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 74165 and Hasted v. Ontario (Community Safety and Correctional Services), 2016 CanLII 7473, and the cases cited therein) the Board has concluded that the time limits for the giving of the notice of proposal to file a complaint are mandatory and that the Board has no discretion to relieve against those time limits.

11Thus, where the giving of the notice of proposal to file a complaint is untimely, the Board has no jurisdiction and is precluded from entertaining the merits of a complaint. Does that limitation also speak to the Board’s ability to grant a remedy in other circumstances?

12The notice of proposal to file this complaint was given on August 27, 2015. Had the complainant given notice of proposal to file a complaint earlier, there is no doubt that the Board would have had the jurisdiction to consider that broader complaint and what remedy might flow from that earlier point in time. This is arguably a continuing grievance as the employer’s requirement that Sergeants remain reasonably available to be recalled to work during vacation periods extended into January 2016, even though any alleged violation is specific to each vacation period taken. As noted earlier, the employer took no issue with any claim following the giving of the notice of proposal.

13At the April 2016 hearing, the complainant entered into evidence an earlier May 21, 2015 email that advised that he was required to leave a phone number where he could be reached during vacation periods. As noted in paragraph 35 of the April 14, 2016 decision, that email is less clear with respect to whether it authorized on call as it did not expressly stipulate that the Sergeants were required to remain reasonably available for recall to work. As already indicated however, had the complainant given notice of proposal to file a complaint immediately following the May 21, 2015 email, claiming on call pay for subsequent vacation periods, that time period would properly be included in the complaint and in any remedial framework.

14However, had the complainant given notice of proposal to file a complaint on August 27, 2015, simply claiming on call pay for one vacation period taken immediately following the employer’s email of May 21, 2015, that complaint would have been untimely, absent some evidence warranting a conclusion that the crystallizing of the issue occurred later. In order for the Board to have jurisdiction to consider such a complaint, the circumstances giving rise to the complaint must have occurred within the 14 days immediately prior to the giving of notice. Alternately put, if the circumstances giving rise to that complaint arose on, say, June 1, 2015, notice of proposal to file a complaint would have been required no later than June 15, 2015 in order for the Board to have jurisdiction to entertain the complaint and order any remedy.

15The continuing nature of the complaint only assists the complainant with respect to claims occurring after the giving of notice of proposal to file a complaint. The complainant cannot achieve indirectly what he cannot achieve directly. If the Board has no jurisdiction to even entertain a complaint with respect to an earlier time period, I am hard pressed to determine on what basis the Board could, in effect, reach back from a later, timely complaint in order to remedy that earlier time period. While the Board has jurisdiction to entertain a complaint alleging a continuing violation, notwithstanding that it is not filed from the date of the first occurrence of an alleged breach, the remedy may still be limited and regard must be had in that context to the time limits involved for bringing the complaint.

16I have no evidence that the employer made any representation regarding any entitlement to, or possible payment for on call pay that would warrant the complainant holding off from making a claim. The complainant did not assert that he was unaware that he was entitled to on call pay. Rather, he asserted in his Form 1 that he became aware that he was being required to be on call when he received the email dated August 27, 2015, “which used the same language contained within…section 21(2)” of the Directive. That is, the complainant became aware of the circumstances giving rise to his complaint on August 27, 2015. He gave his notice of proposal to file a complaint that same day. His primary concern to that point had been the fact that the employer was delaying the approval of vacation requests, the other matter raised in his complaint.

17In these circumstances therefore, I find that the remedial claim in this case is limited to 14 days prior to the date of giving notice of proposal to file the complaint, that is, August 13, 2015.

18I do have concerns about a lack of clarity from the employer with respect to communicating a requirement that Sergeants be reasonably available for recall to work. Absent a clearly expressed requirement and corresponding compensation, the employer must accept that Sergeants are under no obligation to remain reasonably available to be recalled to work during a period that is not their regularly scheduled work period. The employer cannot simply rely on the professionalism of its Sergeants to require that they remain on call because the employer might need them during periods when they are not otherwise scheduled to work.

What does ‘vacation period’ include?

19While the employer agreed that lieu days and compensating time off should be treated as falling with a vacation period for purposes of on call pay, it did not agree that RDOs or statutory holidays should be so included. It referred to paragraph 30 of the Board’s original decision in this case, arguing that the on call requirement was found to be limited to vacation periods and the question was simply what on call hours properly fell within a vacation period.

20The complainant argued that vacation periods could refer to longer periods than while on vacation as, he argued, the emails covered the entire period, not just vacation. He argued that he did not have to be travelling to be on vacation and that vacation ought to be given its normal meaning of a period of suspension from work used for holiday. The complainant argued that the emails stated that he could be called back to work at any time while on vacation, not just on days credited as vacation.

21Section 21 of the Compensation Directive provides for on call pay when an employee:

…keeps himself or herself reasonably available for recall to work during a period (authorized by his or her supervisor) that is not his or her regularly scheduled work period…

22The language used by the employer in requiring the complainant to be reasonably available, and thereby authorizing the on call, stated:

...managers who are on vacation may be called back…at any time; therefore they are required to provide a telephone number at which they can be reached during this period.

23The complainant is entitled to be compensated for periods of on call during his vacation periods. There is no dispute that that includes time spent on call during any day for which a vacation credit, a lieu day, or a compensating day was taken.

24I am further satisfied that the ‘vacation period’ ought to be liberally construed so as to reflect those stretches of consecutive days where the employee is absent from work and during which period he utilizes a vacation credit, lieu day, or compensating day off. All of those are earned benefits that entitle an employee to be absent from work during periods they might otherwise be scheduled for work.

25The employer may rely on an assumption that for RDOs or statutory holidays, a Sergeant (or a sufficient number of Sergeants) may be reasonably available to be recalled to work without requiring them to be so. That assumption changes for stretches of booked vacation when it is understood that Sergeants may absent themselves from home and for longer periods. Those assumptions, however, do not take account of the myriad of circumstances in between.

26It is generally understood by both employers and employees that RDOs and statutory holidays are often used to extend vacation periods without the need to utilize a vacation or other credit. According to the Directive, on call is payable for periods that are not regularly scheduled work periods. On its face, that includes RDOs and statutory holidays not worked. A limitation arises in this case as the employer required the complainant to be on call only during ‘vacation periods’. At the same time, that requirement was a ‘blanket’ direction to Sergeants. It was ambiguous and failed to provide direction responsive to individual circumstances, potentially leaving Sergeants to err on the side of caution by remaining reasonably available for recall to work for a broader period than the employer actually intended or required. Where they are contiguous to vacation, lieu, or compensating days, I therefore find it appropriate to include RDOs and statutory holidays as part of the vacation period.

27I hereby find that, for purpose of this claim, where an RDO, or consecutive RDOs or statutory holidays abut a vacation day, lieu day, or compensating day, they are properly treated as falling within a vacation period for which the employer required the complainant to be on call. Therefore, and having regard to the limitation on the scope of the remedy expressed at paragraph 17 above, on call hours payable during the relevant period of this claim are as follows:

August 13 – vacation – 16 hours

August 14 – vacation – 16 hours

August 15 – RDO – 24 hours

August 16 – RDO – 24 hours

August 21 – vacation -16 hours

August 22 – RDO – 24 hours

August 23 – RDO – 24 hours

September 14 – compensating time – 16 hours

October 5 – lieu time - 16 hours

October 9 – vacation – 16 hours

October 10 – RDO – 24 hours

October 11 – RDO – 24 hours

December 25 – statutory holiday – 12 hours

December 26 – statutory holiday – 12 hours

December 27 – vacation – 12 hours

December 28 – RDO – 24 hours

December 29 – RDO – 24 hours

Total: 324 hours

28Section 21(1) of the Compensation Directive sets on call pay for a Schedule 5 manager such as the complainant at $1.00 per hour. I hereby direct the employer to forthwith pay to the complainant the sum of $324.00 less required deductions. I will remain seized with respect to the implementation of this award.