PSGB# P-2016-0624

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Nesbitt et al

Complainant

• and -

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

Employer

BEFORE

Marilyn Nairn

Vice-Chair

FOR THE COMPLAINANT

Craig Hillen

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

DECISION

1This group complaint was filed with the Board on June 21, 2016 by a number of Deputy Superintendents at Central East Correctional Centre. It notes that they are classified as Schedule 6 managers under the applicable Management Compensation Plan (“MCP”). It alleges that the Employer had treated them in an unfair, unequal, and inequitable manner in that the Employer had not exercised its authority to implement a directive providing for the complainants’ fair and equitable compensation in respect of periods of standby and on call. The complaint asserts that a historic provision of 5 days of compensating time off was not fair or consistent compensation, as other Schedule 6 managers received this compensation without having to perform the standby/on call duties. By way of remedy, the complainants primarily sought to be compensated in the same manner that managers are compensated under Schedules 3, 4, and 5 of the MCP, including retroactive compensation and damages.

2It was the position of the Employer that the complainants were effectively seeking to be moved from Schedule 6 under the MCP to another Schedule in the directive and that this Board had no jurisdiction to consider such a request or make such an order based on the limitations set out in sub-section 4(2) 2 of O. Reg 378/07 made pursuant to the Public Service of Ontario Act, 2006, S.O. 2006, c. 35, which provides:

4 (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.

3The matter was scheduled before the Board on January 5, 2017. At that time, discussions were held between the parties with two of the named complainants representing the group. At the conclusion of those discussions the parties agreed to adjourn this complaint sine die, asking the Board to follow-up in one year if the complaint had not otherwise been re-scheduled or withdrawn.

4The Registrar of the Board attempted to follow up with Kevin Nesbitt, the lead complainant, only to learn that Mr. Nesbitt had retired. Further to a telephone conversation between the Registrar and Craig Hillen, the other representative complainant attending on January 5, 2017, an email was sent to Mr. Hillen on April 15, 2019, seeking an update with respect to the status of the complaint. That email states, in part:

A failure to respond to the Board by May 24, 2019, as to the status of this complaint will result in the Board deeming the complaint to have been abandoned and it will be dismissed.

5On April 16, 2019 Mr. Hillen sent an email to each member of the group of complainants who remained active employees, which he copied to the Registrar. The email was also sent to a number of individuals who were not named as complainants in this complaint. While the contents of that email appear to reflect some misunderstanding of the discussions held on January 5, 2017, the email does make clear that, unless the Board received a response by May 24, 2019 as to the status of the complaint, it would be deemed abandoned and would be dismissed. Mr. Hillen went on to state that he would not be taking the lead and asked that someone else do so. An individual not named as a complainant in this complaint responded on April 16, 2019, again copying the Registrar and advising that, while supporting the complaint, he was unable to take the lead. No other correspondence has been received by the Board from any of the complainants.

6Further to the Registrar’s notice and the deadline set out therein, and having regard to the email, which evidences communication of that deadline, the Board has received no advice as to the status of this complaint, nor any indication that any of the complainants intend to pursue the matter. An indication of support from someone not named as a complainant is insufficient.

7I find therefore that this complaint has been abandoned. It is hereby dismissed.