PSGB# P-2017-3347

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Wilson

Complainant

• and -

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

Employer

BEFORE

Brendan Morgan

Vice-Chair

FOR THE COMPLAINANT

Lisa-Marie Wilson

FOR THE EMPLOYER

Shiran Brener Treasury Board Secretariat Legal Services Branch Counsel

SUBMISSIONS

December 17, 2018 and January 15, 2019

TELECONFERENCE September 14 and November 13, 2018

DECISION

BACKGROUND

1The Complainant, Ms. Lisa Marie Wilson, is employed by the Ministry of Community Safety and Correctional Services, (“CSCS or the “Employer”). This decision addresses the question as to whether the Complainant has the status to file a complaint pursuant to Section 5(1)(2)(1) of Regulation 378/07.

2The complaint involves the Complainant’s employment at the Employer’s Central East Correctional Centre (“CECC”) facility where she was engaged in a temporary assignment. Her job classification at the CECC was that of an ‘Acting Sergeant’.

3The Board understands that the Complainant accepted a subsequent assignment to the Employer’s Central North Correction Centre (“CNCC”) as a Staff Sergeant.

4On February 17, 2018, the Complainant filed a ‘Form 1- Application’ complaining that the compensation that she had been paid was less than what she believed she was entitled to as an Acting Sergeant at the CECC.

5The Employer filed its’ ‘Form 2 Response’ on May 7, 2018. Counsel for the Employer submitted that the Board should dismiss the complaint. Counsel maintained that the Complainant’s compensation was in accordance with the pay schedule.

6Counsel for the Employer further advised the Complainant and the Board that the Employer would seek to have the complaint dismissed on the grounds that the complaint was untimely pursuant to the provisions set out in Regulation 378/07 of the ‘Public Service of Ontario Act, 2006, (the “Act”).

7The Board scheduled a mediation session for June 11, 2018. Unfortunately, the parties were unable to resolve the dispute at mediation.

8The Employer advised the Board and the Complainant that it did not wish to further mediate the dispute. As mediation in the Board’s process is voluntary, the Board’s initial priority was to determine the validity of the Employer’s preliminary objection with respect to the timeliness of the Complainant’s complaint.

9On August 9, 2018, the Board issued a decision directing the parties to participate in a teleconference hearing. The purpose of the teleconference hearing was to receive legal and other submissions with respect to the Employer’s timeliness objections.

10The Board scheduled the teleconference for September 14, 2018.

11Mr. Mathew Cudahy assisted the Complainant during the teleconference hearing. Counsel represented the Employer.

12To summarize, the Employer submitted that the complaint be dismissed by the Board without a hearing. Counsel opined that the complaint breached the mandatory timelines for filing a complaint related to a working condition or term of employment as described in Regulation 378/07 Section 8 (4)(3) of the Act. Counsel submitted that the Complainant provided notice of her complaint approximately five months after she became aware of the problem with her compensation. This, Counsel submitted, was well beyond the 14 day period mandated by Regulation 378/07 Section 8(4)(3).

13The Complainant stated that she accepted the temporary assignment to CECC as an opportunity to broaden her career opportunities and experiences. The Complainant acknowledged that prior to her assignment to the CECC her home position was that of a Parole and Probation officer at the Employer’s facility in Mississauga, Ontario.

14The Complainant and her representative acknowledged that she was aware of the time line requirements under which she was required to file a notice pursuant to the Regulation. However, she submitted that the email notice provided to Deputy Minister Torigian, dated November 6, 2017, constituted a timely notice as required by the Regulation.

15The Complainant took the position that her complaint was an “on going grievance” and therefore not in breach of the timelines as interpreted by the Employer.

16On December 5, 2018, the Board issued a direction to the parties. It read, in part, as follows:

“Having reviewed the submissions of the parties and the document subsequently provided by the Employer it has come to the Board’s attention that the issue as to whether the Complainant has status to file a complaint pursuant to Section 5 (1)(2)(1) of Regulation 378/07 has not been addressed. Specifically, was the Complainant a member of a bargaining unit during her assignment at Central East Detention Centre and if so what effect does that have on the Board’s ability to assume jurisdiction over the complaint?

17The Board directed the parties to provide written submissions on the “status” issue. The Employer was to submit its materials by December 17, 2018. The Board further directed that the Complainant submit its response to the Board and Employer by January 7, 2019, with the Employer having the option of replying to the Complainant’s submissions by no later than January 14, 2019.

18Finally, the Board directed the Parties attention to five of the Boards relevant authorities for their consideration.

SUBMISSIONS OF THE PARTIES

(a) Employer Submissions

19Counsel for the Employer provided its submissions to the Board and Complainant on December 17, 2018.

20The Employer requested that the Board dismiss the complaint as the Complainant was, at all relevant times, a member of the Ontario Public Service Union, (“OPSEU”).

21Members of OPSEU, Counsel further submitted, fall under the jurisdiction of the Crown Employees Collective Bargaining Act (“CECBA”). Her membership in OPSEU and statutory coverage by CECBA prevented the Complainant from bringing a complaint to the PSGB.

22Counsel directed the Board’s attention to five facts that, in the Employer’s opinion, were not in dispute:

(1) The Complainant is currently seconded as a Sergeant at the CNCC

(2) The circumstances surrounding the complaint arose during the Complainant’s temporary assignment as a Sergeant at the CECC.

(3) When she accepted the assignment at CECC the Complainant’s home position was and remains as a Probation and Parole Officer which is an OPSEU bargaining unit position.

(4) The complaint is about the pay she received in the acting position at CECC.

(5) The complaint is about a working condition and term of her employment.

23Counsel further submitted that Section 5 of Regulation 387/07 establishes who is not eligible to file a complaint with the Board. It reads:

5. (1) Subject to subsections (2) and (3), a public servant or other person is eligible to file a complaint if he or she was appointed by the Public Service Commission under subsection 32(1) or (2) of the Act to employment by the Crown.

(2) If any of the following circumstances existed at the material time, a public servant or other person is not eligible to file a complaint:

1. He or she was a member of a bargaining unit represented by a bargaining agent under the Crown Employees Collective Bargaining Act, 1993 or under the Ontario Provincial Police Collective Bargaining Act, 2006.

24Given that the Complainant’s home position was in an OPSEU bargaining unit and subject to the framework of CECBA Counsel submitted that she remains a member in good standing of OPSEU. The Complainant is a dues paying member of OPSEU and continues to be “afforded the protections” under CECBA.

25Counsel cited Article 8.5.2. of CECBA which states that:

“When an employee is temporarily assigned to a non-bargaining unit position, he or she shall continue to pay dues to OPSEU and continue to be covered by the Collective Agreement for the entire term of the temporary assignment.”

26Finally, Counsel relied upon four authorities in support of the position that the Complainant lacked status to bring her complaint to the Board.

27In Cartwright v. Ontario (Ministry of Community Safety and Correctional Services), 2002, CanLII 53197 (ON PSGB), the Board dismissed multiple grievances brought by acting Operational Managers with respect to unpaid pay increases. The Board took the position that the Complainants were at all relevant times members of OPSEU and should look to CECBA to protect their interests.

28Counsel stated that the Board’s approach in ‘Cartwright’ is reflected in the decisions of Ireland v. Ontario (Ministry of Community and Correctional Services), 2006 CanLII 30739 (ON PSGB), Lafreniere v. Ontario (Community Safety and Correctional Services), 2008 CanLII 70542 (ON PSGB) and Roknic v. Ontario (Community Safety and Correctional Services) 2009 CanLII 15650 (ON PSGB).

29All of the above cases, Counsel submitted, stand for the proposition that the PSGB lacks the jurisdiction to hear complaints when a Complainant’s employment rights are protected by a collective agreement such as CECBA. As a result, the Board should follow the statutory guidelines and jurisprudence and dismiss the Complainant’s complaint without further adjudication.

(b) Complainant’s Submissions

30The Complainant requested an extension to file its response. The Board reviewed the reasons for the request and the submissions from the Employer opposing the extension. The Board provided the Complainant with an additional eight days to file its response to the Board and the Employer.

31The Board and Employer received the Complainant’s submissions on January 15, 2019.

32The Complainant’s submissions were brief and succinct.

33The Complainant confirmed that on May 8, 2017, she began working as an “Acting Manager/Sergeant at Central East Correctional Centre.”

34The Complainant described this assignment as “temporary”. It was the Complainant’s submission that she viewed this assignment as a “developmental opportunity”.

35The Complainant acknowledged that her home position “is that of a Probation and Parole officer which falls under the OPSEU Collective Agreement.” The Complainant did not suggest that her home position has changed since she filed her Form 1 Application on February 17, 2017.

36Further, the Complainant submitted that she continues to pay dues to OPSEU and, further, continues to be a member of the bargaining agent. However, the Complainant suggested that the payment of union dues to OPSEU only covers her pension and benefits contributions. The Complainant’s submissions suggests that her union dues do not provide for other services that she otherwise may be entitled to from the bargaining agent.

37Finally, the Complainant submitted that her pay dispute complaint to the PSGB arose during her temporary assignment in an excluded position. This was not a position or employment issue covered by the OPSEU collective agreement and, as a result, the PSGB had jurisdiction to hear the complaint.

DECISION

38Having reviewed and considered the submissions of the Employer and the Complainant the Board is of the view that it has no jurisdiction to hear the complaint.

39It is clear, based on the submissions of the Complainant alone that, at all relevant times during her temporary assignment she continued to be a dues paying member of the OPSEU bargaining unit.

40Two particular legal instruments discussed below provide guidance as to why the Complainant is ineligible to file a complaint with the PSGB.

41Firstly, Section 5 (1) of Regulation 378/07 of the Act defines those employees who are ineligible to file a complaint including:

1. He or she was a member of a bargaining unit represented by a bargaining agent under the Crown Employees Collective Bargaining Act, 1993 or under the Ontario Provincial Police Collective Bargaining Act, 2006.

42Secondly, Article 8.5.2 of the OPSEU collective agreement states that:

“When an employee is temporarily assigned to a non-bargaining unit position, he or she shall continue to pay dues to OPSEU and continue to be covered by the Collective Agreement for the entire term of the temporary assignment.”

43Reviewing the Complainant’s submissions together with Section 5(1)1 of Regulation 378/07 and Article 8.5.2 of OPSEU’s Collective Agreement it is clear that the Complainant is a member in good standing of OPSEU and is therefore ineligible to file a complaint at the PSGB. The Complainant does not dispute that her home position was and remains as a Parole and Probation Officer, a classification covered by the OPSEU collective agreement.

44Counsel for the Employer is correct in stating, and the submission provided by the Complainant concur, that the Complainant was a member of OPSEU at the time she accepted the temporary posting at the CECC.

45The Complainant’s temporary assignment to the Staff Sergeant position at CECC reflects the circumstances described in Article 8.5.2 of the OPSEU Collective Agreement. She has continued to pay dues to OPSEU and there is no evidence before the Board that she otherwise ceased to be a member of the bargaining agent OPSEU.

46Finally, the Board’s jurisprudence on this issue has been consistent. These include Cartwright v. Ontario (Ministry of Community Safety and Correctional Services), 2002 CanLII 53197 (ON PSGB), Ireland v. Ontario (Ministry of Community and Correctional Services), 2006 CanLII 30739 (ON PSGB), Lafreniere v. Ontario (Community Safety and Correctional Services), 2008 CanLII 70542 (ON PSGB) and Roknic v. Ontario (Community Safety and Correctional Services), 2009 CanLII 15650 (ON PSGB).

47The Board has consistently upheld the principle that employees on a temporary assignment or otherwise covered by a Collective Agreement are not eligible to file a complaint at the PSGB, no matter the issue. The fact situation described by the Complainant in the present matter before the Board does not warrant a different result than any of the authorities listed above.

48For the reasons noted above, the complaint is dismissed.