PSGB# P-2017-2377

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Aspiotis

Complainant

• and -

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

Employer

BEFORE

Brendan Morgan

Vice-Chair

FOR THE COMPLAINANT

Jim Aspiotis

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

SUBMISSIONS TELECONFERENCE

June 6 and 22, 2018 October 5, 2018

DECISION

BACKGROUND

1The Complainant, Mr. Jim Aspiotis, is employed by the Ministry of Community Safety and Correctional Services (“CSCS” or the “Employer”). The Complainant’s home position is located at the Employer’s Toronto South Detention Centre. There is a dispute between the parties as to the Complainant’s position at the time of the filing of the complaint.

2The Complainant is a long service employee with the Employer. His employment with the Ontario Public Service commenced in 1993. His full-time employment as an ‘Operational Manager’ began in 1998.

3On or about November 17, 2017, the Complainant filed a Form 1 Application with the Board complaining about the results of a’ restructuring’ that had taken place within the “Correctional Services Oversight and Investigations Unit” (CSOIU’). As a result, the Complainant was re-assigned to the position of ‘Deputy Superintendent’ at the Employer’s Toronto South Detention Centre. The Complainant alleged his home position was made redundant and, further, that he had been improperly reassigned to the position of Deputy Superintendent.

4The Complainant took the position that the Employer’s decision to reassign him was not a work performance issue. In the alternative, if it was, the Employer had an obligation to manage his work performance before the reassignment took place.

5The improper reassignment of the Complainant was, in his opinion was arbitrary and made in bad faith. One of the consequences of reassigning the Complainant was to make his Staff Inspector position redundant.

6The Complainant submitted that by making his position ‘redundant’ certain rights should have been provided to him by the Employer. These include, but are not restricted to, “surplus rights”.

7In the alternative, the Complainant alleged that the Employer’s actions should be understood as ‘disciplinary’ in nature which has lead to his being ‘constructively dismissed’ from his employment.

8The Employer in the course of filing of its Form 2 Response and its subsequent written submissions raised a series of preliminary objections that the reassignment of the Complainant was not reviewable by the PSGB as the complaint fell outside of the Board’s regulatory authority.

9The four preliminary objections raised by Counsel for the Employer are described in detail in paragraphs 21 through 25, below.

10Counsel for the Employer submitted that the Complainant’s complaint should be dismissed on any or all of its four preliminary objections.

11In raising these objections the Employer relied upon Regulation 378/07 of the ‘Public Service of Ontario Act, 2016’ (the ‘Act’), specifically Sections 4.(2)2 and 4 and the Board’s jurisprudence.

12The Employer did agree to engage in a mediation session. Counsel for the Employer advised the Board and the Complainant that should the mediation fail to produce a resolution the Employer intended to pursue the preliminary objections.

13A mediation session was scheduled by the Board for April 26, 2018.

MEDIATION SESSION

14Unfortunately, the parties were unable to resolve the complaint at the April 26, 2018, mediation session.

15At mediation the parties advised the Board that a Ministry of Community Safety and Correctional Services internal staffing review had the potential to resolve the issues outlined in the complaint as part of a broader resolution of staffing matters. The parties and the Board agreed to maintain a dialogue about the progress, if any, of this review and what impact it might have on the complaint later on in the calendar year 2018.

16With respect to the Employer’s preliminary objections the parties were directed to provide written submissions, commencing with the Employer. The Complainant was then to provide its written response with the Employer being provided with the opportunity to reply to the Complainant’s submissions if it chose to do so at a date prescribed by the Board.

THE MINISTRY REVIEW

17The Parties filed their respective submissions in accordance with the time limitations set out by the Board. The parties and the Board agreed that the Board would wait for the Parties to advise the Board as to the progress of the Ministry review before attending to the Parties’ written submissions.

18The Board scheduled a tele