PSGB# P-2017-3935

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Boucher

Complainant

• and -

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

Employer

BEFORE

Andrew Tremayne

Vice-Chair

FOR THE COMPLAINANT

Guy Boucher

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

SUBMISSIONS COMPLETED

August 27, 2018

DECISION

1This decision deals with a preliminary objection by the employer with respect to the complaint of Guy Boucher. The complaint arises from the employer’s decision to assign the duties and responsibilities of a Sergeant COM1 (also known as an Operating Manager) to Mr. Boucher during his on-call rotation.

2When the matter was referred to the Board for mediation, the employer asked that the complaint be dismissed because the Board lacks jurisdiction to hear it. Mr. Boucher resists the employer’s objection and asks that the matter proceed and be heard on its merits. The parties agreed that the Board would rule on the employer’s objection based on written submissions, and these were exchanged in accordance with an agreed schedule.

3The employer has also asserted that the complaint should be dismissed because the main focus of Mr. Boucher’s initial complaint was his claim for additional compensation for performing these duties and responsibilities. In his written reply to the employer’s preliminary objection, Mr. Boucher appears to have retreated from this claim and is now focussing on an allegation that the assignment of the duties and responsibilities is a breach of the Occupational Health and Safety Act, submits the employer. Because he has only just raised this allegation, the employer argues that it is now too late for Mr. Boucher to expand the grounds of his complaint.

Background and Context

4For the purpose of this decision, the Board assumes that the facts as set out in the complaint are true and can be proven. Mr. Boucher is employed in the Ministry of Community Safety and Correctional Services as a Deputy Superintendent of Administration for both the St. Lawrence Valley Correctional and Treatment Centre and the Brockville Jail. His job classification is M09 (formerly AM19) which is a “Schedule 6” position under the Management Compensation Plan (MCP) in the Compensation Directive. As part of his duties, the employer requires Mr. Boucher to be on-call on a rotational basis. During the on-call period he may be required to assume overall responsibility for the administration and operation of the facility.

5On some occasions, the particulars of which are set out in the complaint, the employer has assigned Mr. Boucher to perform the work of a Sergeant COM1 during his on-call rotation. A Sergeant COM1 has a classification of M07, which is a “Schedule 5” position under the MCP. A Sergeant is entitled to additional compensation when they work overtime at the rate of 1.5 times their hourly rate.

6Mr. Boucher says that performing the work of a Sergeant COM1 is not part of his job description. The Sergeant COM1 position has a very specific role and requires detailed job knowledge and mandatory training and qualifications, including but not limited to the following: use of force and defensive tactics, chemical munitions, first aid and CPR, fire safety, warrants, suicide prevention, and WHMIS. Mr. Boucher says that as a Deputy Superintendent of Administration, he does not have this training and these qualifications, although they are essential for anyone to be able to perform the work of a Sergeant COM1 safely and effectively.

7In his complaint, Mr. Boucher requests the following remedy:

1. I'm requesting for the Ministry to cease this practice.

2. On February 4th, I reported for duty and assumed the responsibilities and duties of a COM1 Sergeant. This was a night shift which ended on February 5th at 0600 hours. I used a credit to cover my day shift Monday February 5th in order to fulfill my obligation of 38.25 hours of work, the minimum hours of work for a week. I am requesting that the credit be returned to my bank.

3. I am requesting $1600.00 as restitution for the employer's negligence, intentionally assigning duties beyond the employee's responsibilities, qualifications and disregard for the potential harm and liability to its employee while performing these duties.

Any additional compensation the board deems appropriate.

Parties’ Submissions

8The employer submits that Mr. Boucher is seeking compensation that applies to a classification other than his own, namely the compensation that applies to the Sergeant COM1 position which has a classification of M07 and is a Schedule 5 position. As a Deputy Superintendent of Administration, Mr. Boucher’s classification is M09, which is a Schedule 6 position. The overtime and standby provisions of the Compensation Directive do not apply to Schedule 6 employees. As such, the complaint is essentially about Mr. Boucher’s job classification, and the Board lacks jurisdiction over complaints of this nature.

9The Board only has the powers granted by the Public Service of Ontario Act and the regulations made under that legislation, notably Regulation 378/07, which states as follows:

4. (1) Subject to subsection (2), a public servant who is aggrieved about a working condition or about a term of his or her employment may file a complaint about the working condition or the term of employment with the Public Service Grievance Board,

(2) The following matters cannot be the subject of a complaint about a working condition or about a term of employment:

2. The assignment of the public servant to a particular class of position.

10The overtime and standby provisions of the Compensation Directive state as follows:

STANDARD OVERTIME

10 (3) Employees are entitled to compensation under this section if they are employed in a class of position set out in Schedule 3, 4 or 5 and the class falls within the Management Compensation Plan.

PAY FOR STAND-BY DUTY

22(3) Employees are entitled to compensation under this section if they are employed in a class of position set out in Schedule 3, 4 or 5 and the class falls within the Management Compensation Plan.

11The Compensation Directive is clear that these provisions do not apply to Mr. Boucher, submits the employer, and the only way that he could have access to them is if he was a Schedule 3, 4 or 5 employee. The Board’s jurisprudence has established that Schedule 6 employees have no general entitlement to overtime pay or other premium payments such as stand-by pay in the absence of a specific Order-in-Council. See Johnson et. al. v Ontario (Community and Social Services); PSGB # P/0003/99 and Mously et. al. v. Ontario (Solicitor General and Correctional Services); PSGB # 0068/96). As such, the complaint can only be about Mr. Boucher’s job classification, and the Board lacks jurisdiction over such a complaint.

12In his response to the employer’s submissions on its preliminary objection, Mr. Boucher says that he is not disputing his entitlement under the Compensation Directive for overtime and stand-by time. Rather, he is requesting that the employer cease the practice of assigning to him the work of a Sergeant COM1 during his on-call rotation. In the event that Board finds that the employer is at fault for assigning this work to him, and if the Board decides that a monetary award is warranted, Mr. Boucher requests restitution.

13Mr. Boucher sets out his position as follows:

I am not disputing my classification and am not requesting the Board to review my classification in order to be compensated for work performed as a Sergeant. I am requesting the Board to review the rights of the employer to assign me these duties not associated to my position, my qualifications and to the terms and condition of my employment. (emphasis added)

14He later emphasizes that this is the basis of his complaint:

My position during my on-call period covers both institutions. The positions reporting directly to a Deputy Superintendent during on-call rotation are; correctional officers, sergeants, nursing, housekeeping staff, electrician, plumber, general maintenance personnel, kitchen department, business administration, Institution Crisis Intervention Team, Crisis Negotiators, chaplain, social worker and more, all of which I am not qualified to perform. The employer's statement would suggest that I am required to perform theses duties without the qualification necessary to complete the work. This sounds unrealistic but in fact this forms the basis of my complaint. The employer will assign duties to the on-call Deputy Superintendent without any consideration to the health and safety of its employee and without any consideration to the employee's training and qualification. (emphasis added)

15Mr. Boucher’s response also cites a number of provisions of the Occupational Health and Safety Act, and includes excerpts from the Ministry’s Occupational Health and Safety Policy and the Institutional Services Policy and Procedures Manual. Many of the excerpts from the latter document are highly technical in nature and deal, for example, with the use of oleoresin capsicum foam, respiratory protection, and hazard identification.

16The employer replies that because Mr. Boucher no longer disputes his entitlement under the Compensation Directive for overtime and stand-by pay, there is nothing left for the Board to adjudicate. The complaint is now entirely focussed on his assertions of a breach of the OHSA, and the Notice of Intention to File a Complaint mentions only the employer’s alleged failure to compensate Mr. Boucher for work as a Sergeant COM1. Mr. Boucher has failed to give timely notice to the employer of the reasons for his complaint. He is now seeking to expand the grounds for his complaint, which is improper, and his complaint should be dismissed without a hearing.

Analysis and Disposition

17I have carefully considered all of the submissions and have assumed that the facts as set out in the complaint are true and can be proven. For the reasons set out below, I find that this matter should not be dismissed without a hearing.

18With respect to jurisdiction, subsection 4(2) of Regulation 378/07 makes it clear that the Board lacks jurisdiction over complaints that relate to “the assignment of the public servant to a particular class of position.” In his response to the employer’s submissions on its preliminary objection, Mr. Boucher states that he is not disputing his classification, nor is he asking the Board to review his classification so that he can be compensated for work performed as a Sergeant COM1. Rather, he asserts that he is disputing the employer’s right to assign him to duties that are not associated with his position, namely the duties of a Sergeant COM1. There are health and safety reasons why these duties should not be assigned to him, and the assignment of these duties included is not in his job description, contends Mr. Boucher.

19By way of remedy, he asks the employer to end this practice. His request for compensation, which was the central focus of his Notice of Intention to File a Complaint, is now only ancillary to his complaint, in that he asks for restitution if the Board decides that the employer is at fault for assigning this work to him.

20There is an important distinction between a complaint that is about being assigned to a certain classification and a complaint about being assigned work that is alleged to be outside of one’s own classification. In the Board’s jurisprudence, “class of position” has been interpreted as a reference to the class, or classification, to which an employee has been assigned and which determines, among other things, their pay range. Rather than excluding all disputes about transfers, reassignments, or the assignment of duties and responsibilities, subsection 4(2)2 has been understood to remove from the Board’s jurisdiction complaints about being assigned to a certain classification. In other words, subsection 4(2)2 has not been read to exclude from the Board’s jurisdiction complaints about being assigned work that is alleged to be outside of one’s own classification during an on-call rotation. See, for example, Hasted/Berezowsky v. Ontario (Community Safety and Correctional Services), 2015 CanLII 7473 (ON PSGB); Courchesne-Godin et al v. Ontario (Children and Youth Services), 2017 CanLII 89957 (ON PSGB), Ilika v Ontario (Community Safety and Correctional Services), 2014 CanLII 76834 (ON PSGB) and Doyle v Ontario (Municipal Affairs and Housing), 2018 CanLII 109219 (ON PSGB).

21At this stage, based on a fair review of the entire complaint (and keeping in mind that I have assumed that the facts as set out in the complaint are true and can be proven), it is at least open to Mr. Boucher to argue that he is being assigned work that he says is outside of his own classification. It is up to Mr. Boucher to argue why, if at all, this is improper, and why, if at all, he is entitled to additional compensation for performing that work. But at this stage, it is difficult to say that the complaint is just about him being assigned to a certain classification. The propriety of assigning the work of a Sergeant COM1 to Mr. Boucher during his on-call rotation is what appears to be at issue, and whether the allegations relate to health and safety or the integrity of his job description, these matters are not about “the assignment of the public servant to a particular class of position”. As a result, I find that the complaint is not beyond the Board’s jurisdiction.

22I turn now to the employer’s submission that Mr. Boucher did not raise the health and safety concerns in a timely manner, and that it is too late now for him to expand the grounds of his complaint. Mr. Boucher’s Notice of Intention to File a Complaint includes the following statement:

It has become a regular practice during the on-call period for the Deputy Superintendent to report for duty after hours and on weekends, to assume the duties and responsibilities of a Sargent COM1, a schedule 5 position. This is not within my job description, part of my on-call responsibilities or within my job classification. (emphasis added).

I accept that most of the Notice of Intention is taken up with claims for additional compensation for performing this work. Nevertheless, as is clear from this excerpt, these claims were not the only concerns that Mr. Boucher first advanced.

23Mr. Boucher’s application (Form 1) includes a number of allegations that the assignment of these duties to him is a risk to his own health and safety, and that it poses risks to the staff and inmates of the institution. He also asserts that because he does not have the specified (and mandatory) training or knowledge to perform many of the duties and responsibilities of the Sergeant COM1 position, he could make a wrong decision, which could place him at risk of discipline, dismissal, or otherwise expose him and the institution to liability.

24Mr. Boucher does not dispute that he is required to be on-call on a rotational basis, and that during the on-call period he may be required to assume overall responsibility for the administration and operation of the facility. In other words, he accepts that it is an existing term of his employment that the employer can assign duties to him while he is on-call. However, while he may not have fully articulated the full extent of his concerns or provided a detailed basis for his claims in his complaint, Mr. Boucher did identify the question of the assignments not being in his job description, part of his on-call responsibilities, or within his job classification in his Notice of Intent. The safety concerns are amply articulated in the application (Form 1). And although this was not the main purpose of the parties’ exchange of written submissions on the employer's preliminary objection, he has now provided additional particulars of this aspect of his complaint in his written reply. While it is up to Mr. Boucher to advance these claims in a hearing, it cannot be said that he did not raise them in his complaint, or that the employer, which has yet to file a response (Form 2) on the merits, is prejudiced by having to respond to them at this stage.

25As a result, for the reasons set out above, the employer’s preliminary objection is dismissed, and the matter may proceed on the merits.