PSGB# P-2014-2682

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Johnston et al

Complainant

• and -

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

Employer

BEFORE

Kathleen G. O’Neil

Chair

FOR THE COMPLAINANTS

Norm Walker, William Johnston, Tracey Gunton, Teresa Bramwell, Lisa Smith, Jim Antle, Sal Lentini

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

Teleconference February 19, 2019, written submissions completed April 5, 2019

DECISION

1This decision deals with a preliminary objection to the complaint of a group of superintendents and deputy superintendents at correctional facilities relating to a claim for stand-by pay. The employer’s position is that the matter should not proceed to a hearing on the merits as the complaint concerns the classification of the complainants, a subject over which the Board has no jurisdiction. Further, the employer argues that, even assuming the facts asserted by the complainants to be true, there is not a viable or prima facie case to be heard. The complainants take the contrary view.

2During a case management conference call, the parties agreed to make their submissions on the preliminary objection in writing.

Factual Overview

3Both parties asserted facts, about which there was little dispute. On a motion such as this, if there is any dispute, the facts asserted by the complainants are assumed to be true and provable, although if the matter proceeds to a hearing, the evidence introduced may lead to factual conclusions different from the facts asserted at this stage.

4At the time of the complaint, the complainants were the Superintendent and Deputy Superintendents at Central North Correctional Centre, and they are now superintendents and deputy superintendents at various correctional institutions in the province. In their positions, the Complainants are required to be on call for rotating periods and while on call must attend the institution once per weekend to do a tour of the facility and/or in the event of a major disruption.

5The Complainants are classified under the Institutional Management (AM) classification, Schedule 6, under the Management Compensation Plan [MCP] in the applicable Compensation Directive. The employer provides a lieu day in substitution when a Deputy Superintendent or Superintendent has to be on call over a weekend. The employer submits that this is on a without prejudice basis, while the complainants submit that the practice has become a term of their employment as it is a longstanding practice.

6The Complainants assert that they are required to be immediately available on a rotational basis, for recall to work and to perform the following duties:

• To be immediately available to respond to all issues that may arise at the facility by phone or Blackberry.
• To report any contentious incidents to the Region immediately or within a prescribed time limit that may be a risk to the ministry.
• To attend the facility in the event of a serious/emerging incident (ICIT, Disturbance, Serious Injury/Death of Offender/Labour Disruptions).
• To provide direction and make decisions for the Operational Management group after hours.
• To attend the institution, one day on the weekend/stat holiday (on a regular day off) and tour the key areas of the institution.
• Not to consume alcohol; because of the decisions they are required to make and the potential of having to drive to the institution.
• To remain in the geographic area of the institution with an expectation to attend in a timely manner in the event of a serious incident.

The Parties’ Positions

7The employer takes the position that the PSGB is without jurisdiction to hear this complaint because it is a classification grievance, and that in any event, it does make out a viable case for the remedies sought. Accordingly, the employer invites the Board to dismiss the complaints on a preliminary basis, without a full hearing on the merits.

8The remedies claimed by the complainants are as follows:

• That the Complainants' on-call be redefined as Stand-by;
• The Complainants be compensated as per the Compensation Directive as Schedule 3,4,5 Managers;
• Retroactive compensation for Stand-by duties dating back to November 27, 2013;
• General Damages of $25,000;
• Establishment of a working group comprising of MCP Schedule 6 Managers assigned to Standby duties.

9The employer takes the position that the above remedial requests amount to a request for overtime pay for any period the Complainants are doing tours or staffing a post in the institution and to be paid standby or on-call for the remaining period they are on call over a weekend, which is not a term or condition of employment which applies to the complainants’ Schedule 6 classification. Rather, the employer submits that the standard overtime provisions only apply to employees in the different classifications set out in Schedules, 3, 4 and 5 of the compensation directive of Management Board of Cabinet (MBC). According to section 10(3) of that MBC Compensation Directive, under the heading “Standard Overtime”, the following wording appears:

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.

Since the wording is very specific as to which classifications the language applies, and Schedule 6 employees are not mentioned in the above wording, the employer argues that they are not entitled to standard overtime, as they would be if their positions fell into Schedules 3, 4 or 5.

10By contrast, emergency overtime is not restricted to employees in Schedules 3, 4 and 5, but is specifically provided for in Section 13(1) of the Compensation Directive, under the heading “Overtime During an Emergency”, as follows:

This section applies, (a) in case of a forest fire emergency; and (b) in case of any other emergency that Management Board of Cabinet declares to be an emergency requiring extraordinary measures to protect public health, public safety or property.

The employer emphasizes that this section is clear that overtime is only available in those specific emergency circumstances. There is no suggestion that the facts of this case involve such emergencies.

11As for stand-by pay, the employer notes that it is also restricted to classes other than Schedule 6, further to section 22(3) of the MBC Compensation Directive, under the heading “Pay for Stand-By Duty”, which reads as follows:

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.

12Additionally, the Employer’s position is that the Complainants’ grievance is tantamount to a “classification” complaint: i.e., in essence, they are complaining that they should be placed in a different schedule of the Compensation Directive (Schedule 5) so that they can receive these stand-by and overtime entitlements.

13In support of its arguments, employer counsel refers to previous decisions of the PSGB. For instance, in Johnston et al. v. Ontario (Ministry of Community and Social Services), 1999 CanLII 13882 (ON PSGB), Vice-Chair Leighton found that Schedule 6 employees had no general entitlement to overtime pay or other premium payments such as standby pay. Only because there was the authority of a specific Order-in-Council (OIC) declaring the 1996 OPSEU strike to be an emergency was there entitlement in those special circumstances. Similarly, in Mously et al. v. Ontario (Ministry of the Solicitor General and Correctional Services), PSGB # P/0068/96, dealing again with facts related to the OPSEU 1996 strike, the PSGB found that Schedule 6 employees were entitled to overtime compensation in an emergency situation, because it was stipulated in a binding OIC. This was contrasted to the regular situation in which there is an employer discretion as to whether or not such compensation is paid at all.

14The employer also relies on Section 3 (1) of the Compensation Directive which states:

The hours of work per week which shall be performed by regular employees of the classifications set out, … (d) in Schedule 6, shall vary in accordance with the requirements of the classification but shall not be less than 36¼ hours.

As well, the employer notes that the Job Description for Deputy Superintendent and Superintendents includes “operation of the facility during rotational on-call periods” and as such is a term and condition of their employment.

15Further, employer counsel submits that the overtime provisions of the Employment Standards Act, 2000 (Part VIII) do not apply because the provisions of that statute do not apply to a Superintendent or Deputy Superintendent because they are persons “whose work is supervisory or managerial in character”, referring to section 8(b) of O. Reg. 285/01, pursuant to the Employment Standards Act “exemptions re Overtime Pay”).

16The Employer’s position is that in assigning on-call work, the Employer has not contravened any statute, the Compensation Directive or any of its policies concerning hours of work. Rather, in the employer’s view, its approach to the issue was within its management rights to assign and compensate the work as it did.

17Further, the employer submits that the Board has no free-standing jurisdiction to review the exercise of management rights for reasonableness or effectiveness, referring to the decision of the Grievance Settlement Board (GSB) in, Ontario Public Service Employees Union v. Ontario (Environment), (Re Dobroff), 2008 CanLII 19779 (ON GSB) a leading management rights case, and the authorities cited therein.

18In sum, the employer argues that, unless the complainants can point to a term or condition that fetters management’s right to assign the work here in question, there is no viable basis on which this complaint can succeed. Consequently, the employer requests that this matter be dismissed for failing to set out a prima facie case that the Board can adjudicate.

19By contrast, the complainants ask that the matter be allowed to be considered on its merits.

20The complainants do not accept the employer’s position that their compensation for on-call duties is completely discretionary. Rather, the complainants maintain that the existing approach of providing a day off for On-Call weeks is a ministry-wide, long standing practice that pre-dates these complaints, and has thus become a term and condition of their employment. The complainants note that they and all On-Call Deputy Superintendents throughout the province have relied on this as compensation for the requirement to be available and to tour institutions outside of normal hours/weekends (something not required of all Schedule 6 employees).

21This compensation arrangement was accepted by the Complainants prior to the changes to On-Call reporting requirements which they maintain changed the situation for the complainants from merely On-Call to Stand-By. In light of these changes, this complaint was lodged. The complainants are of the view that changes to policies and directives have effectively changed the requirement to be available to return to the institution in the circumstances described above from being “reasonably available” to being “immediately available”, which is the main difference between the definitions of On-Call and Stand-By in the compensation directive, which reads as follows:

Definitions from Compensation Policy Directive On-Call - An employee is considered to be on call when the 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. Stand-by - An employee is considered to be on stand-by when the employee keeps himself or herself available for immediate recall to work during a period (authorized by his or her supervisor) that is not his or her regularly scheduled work period.

22The complainants are of the view that the employer is not making the proper distinction between the two concepts, as reflected in the employer’s submissions, which they see as using the terms interchangeably. They do not accept that one day off is fair compensation for the additional duties and responsibilities that are now required. The complainants refer to specific policies in this regard, such as the Restraint Chair policy which requires ongoing and constant monitoring of their Blackberry devices to review inmate status and approve ongoing use of the restraint chair every 2 hours and report to the Ministry’s Regional authorities as required by the policy. As well, the complainants state that the employer’s IT policy on the criteria for allocating Blackberry devices also contemplates that employees approved for BlackBerrys are “required to be immediately contactable via e-mail…and requires constant e-mail communication...”. This too exceeds the On-Call requirement of being reasonably available and is more accurately described by the Stand-By requirement to be immediately available, in the complainants’ submission.

23The complainants also observe that failure to meet these new Stand-By requirements has attracted performance management measures from the employer. The complainants summarize the situation as having gone from being reasonably available for call-back to sleeping with the Blackberry by the bed.

24In support of their contention that the demands have increased, the complainants filed the following directives and policy documents, which I have carefully considered:

• Inmate Incident Reporting Manual, dated August 2013
• Compensation Directive, dated January 27, 2014
• ISPP [Institutional Services Policy and Procedures] Manual excerpt - Priority 1 Requirement for Reporting Within First 24 hours, dated December 24, 2013
• ADM [Assistant Deputy Minister] memo April 29, 2013, re revised inmate reporting processes
• Restraint Chair Instructions, Timeframes and Responsibilities
• BlackBerry policy: Correctional Services Handheld device Policy
• Classification and Position Administration Directive, effective November 1, 2012

25In the complainant’s view, through these operational policies and memoranda, the employer has changed the work, workload and responsibilities of the Complainants in relation to the On-call function so that it should be considered to be standby. Further, the complainants maintain that the increased workload and responsibilities involved in their on-call function have been imposed by the employer without regard to the employer’s compensation practices (documented or otherwise).

26The Complainants also contend that the current treatment of compensation for on-call or stand-by duty points to a violation of compensation policy by the employer and/or a neglect of duty by the MBC in not exercising its authority to determine other remuneration. Reference is made to the Public Service of Ontario Act, 2006, [the PSOA], Section 33, which provides as follows:

Salary or wage ranges (2) The Management Board of Cabinet may, by directive, determine salary ranges or wage ranges for public servants appointed by the Public Service Commission. 2006, c. 35, Sched. A, s. 33 (2).

Other remuneration (3) The Management Board of Cabinet may, by directive, determine other remuneration, including benefits, for public servants appointed by the Public Service Commission. 2006, c. 35, Sched. A, s. 33 (3).

Other terms, conditions of employment (4) The Management Board of Cabinet may, by directive, establish other terms and conditions of employment for public servants appointed by the Public Service Commission and for deputy ministers. 2006, c. 35, Sched. A, s. 33 (4); 2009, c. 33, Sched. 17, s. 10 (5).

27In response to the Employer’s position that the Board lacks jurisdiction because this complaint amounts to a request for overtime pay for any period the Complainants are doing tours or staffing a post in the institution and to be paid standby or on-call for the remaining period they are on call over a weekend, the complainants maintain that they are not seeking overtime but rather appropriate compensation for Stand-By duties.

28Further, the complainants reject the suggestion that their complaint should be seen as a classification dispute, or a request that the Board review their classification. Rather, the complainants dispute the assignment of duties that are not associated with their position, namely the additional duties laid out in operational policy documents and memoranda and not in their job descriptions.

29Additionally, the complainants note that, during the period of time since the filing of this grievance the employer has struck a committee of senior managers to review and address the concerns raised in this grievance and to make recommendations to MBC regarding compensation for Schedule 6 managers. Thus far no information has been provided about this process or its outcome.

30The complainants disagree with the employer’s statement that there has not been a contravention of policies. Stand-By duties have not been articulated in the complainants’ job descriptions but rather added by placing expectations in Operational Policies and Memoranda from Assistant Deputy Ministers, which they argue is a practice in violation of policy and contrary to the Classification and Position Administration Directive which requires “that Management creates positions as it organizes work and the position’s duties and responsibilities are determined and described in a job specification. All positions must be described, evaluated and classified.”

31The complainants rely on the Board’s recent decision in Boucher v Ontario (Community Safety and Correctional Services), 2018 CanLII 119631 (ON PSGB) to support their request that this complaint be allowed to forward to a full hearing.

Considerations and Conclusions

32The Board’s rules allow consideration of motions such as the one brought by the employer in this case. Rule 12 reads:

Where the Board considers that a complaint does not make out a case for the orders or remedies requested, even if all the facts stated in the complaint are assumed to be true, the Board may dismiss the complaint without a hearing or consultation. In its decision the Board will set out its reasons.

33The issues arising in respect of the above-noted facts are as follows, which will be dealt with in turn:

a) Is this a complaint about classification? b) Have the complainants established a viable case in respect of their claim to stand-by pay? c) Have the complainants established a viable case in respect of their other claims in respect of call-in or stand-by duties?

a. Is this a complaint about classification?

34There is no doubt that the PSGB lacks subject-matter jurisdiction over classification grievances. The relevant statutory provisions from Regulation 378/07 under the PSOA states:

Complaint about a working condition or a term of employment 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.

35As articulated most recently in Boucher v Ontario (Community Safety and Correctional Services), 2018 CanLII 119631 (ON PSGB), however, not all references to classification in a complaint before the PSGB put the matter outside the Board’s jurisdiction. Rather, 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 the assignment of duties and responsibilities, subsection 4(2)2 of Regulation 378/07 says that “the assignment of the public servant to a particular class of position” cannot be the subject of a complaint to this Board. This has been understood to remove from the Board’s jurisdiction complaints about being assigned to a certain classification, rather than another, such as where a complainant is seeking a decision to the effect that he or she has been assigned to the wrong classification. See, also, 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).

36In this case, the complainants are not suggesting they should be assigned to a different classification. They are disputing one aspect of their remuneration, relating to on-call or stand-by duties. Employer counsel accurately observes that the remedy claimed, insofar as it relates to a claim for stand-by pay pursuant to the compensation directive, is a claim for a provision pertaining to a different classification. This fact has consequences which will be discussed below, but does not turn this complaint into a complaint about the “assignment to a particular class of position”. Assignment to a different class of position would entail a change to all the terms and conditions of employment of the alternate classification, rather than just one.

37Accordingly, I do not find this complaint to be a classification grievance which is beyond the Board’s jurisdiction.

b. Is there a prima facie case in respect of stand-by pay?

38As noted above, the complainants argue that the evolution of their duties to return to the institution has transformed their on-call duties into stand-by, as defined in the applicable compensation directive. The facts asserted by the complainants certainly make out an arguable or prima facie case that they are required to be immediately available for return to the institution, in a number of circumstances, and of an increased emphasis on timely reporting of serious incidents involving inmates or staff. However, that is not enough to entitle them to the compensation set out in the directive referred to, as it is explicitly limited to employees in different classifications than the complainants.

39Therefore, I accept the employer’s position that the complainants have not made out a prima facie case for entitlement to stand-by pay under the applicable compensation directive. More generally, the complainants have not identified a term or condition of employment pertaining to their own Schedule 6 classifications which entitles them to a specific type of compensation for stand-by or being immediately available to return to the institution. If such a term had been identified, the Board could enforce it. However, the Board does not have the power to create a new way to compensate the complainants for stand-by or intensified call-back duties.

c. Is there a prima facie case in respect of other remedies claimed?

40The other elements of the complaint are summarized in the complainants’ submission that they are seeking appropriate compensation for the stand-by duties required of them. They note that a committee was formed to look into the issue but that no information has been forthcoming as to the status of that effort. This aspect of the submissions made by the complainants is an indication that the nub of the complaint is that the complainants are of the view that they are not sufficiently well compensated for the intensification in demands when they are on stand-by or on-call. Although this position is very understandable in light of the facts asserted by the complainants, the PSGB does not have the mandate to set better compensation for complainants, or to require the employer to do so.

41In respect of this latter point, the complainants note that the PSOA has provisions giving the employer the right to determine salary and other remuneration by directive, but that they have not done so in respect of on-call or stand-by for Scheduled 6 managers. The provisions in question indicate that the employer may make such provisions but does not require the employer to make any particular provisions. Further, it cannot be said that the employer has made no provision for pay for on-call or stand-by duties. The thrust of the complaint is that the current provisions are insufficient. This does not amount to a complaint that has a reasonable likelihood of success. It may be that the committee that has been struck will find a new approach to compensation for these duties, or that the employer will take a different approach in the future towards the compensation of Schedule 6 call-in or stand-by duties. In the interim, the material before the Board does not establish a specific provision applicable to Schedule 6 employees that the Board is in a position to enforce.

42It is certainly open to the employer to consider the complainants’ request that a working group of Schedule 6 managers assigned to stand-by duties be established, but without the identification of an existing term or condition of employment that would require this to occur, the PSGB does not have a viable basis to order the employer to do so.

43In their original complaint, the complainants mention the fact that the history of wage freezes has contributed to wage compression with subordinates as well as poor morale, and that inconsistencies in compensation among the management group are seen as unfair. Similarly, they view the expectation that some managers work during their time off without further compensation as inconsistent with current employment standards. Further, the Ministry has identified a serious deficit in succession planning, which the complainants see as a result of the fact that the combination of the workload and compensation package for managers at their level is not appealing to candidates in lower level classifications. These concerns are completely understandable, but the Board is not in a position to remedy them without a pre-existing term of employment that would require them to be addressed in a specific way.

44I have carefully considered the other submissions made by the complainants as well, but do not find that they identify a viable case with a prospect of success either. For instance, as noted above, the complainants see it as a contravention of the Classification and Position Administration Directive that stand-by duties have not been articulated in their job descriptions but rather added by placing expectations in Operational Policies and Memoranda from Assistant Deputy Ministers.

45The complainants cite wording from the employer’s Classification and Position Administration Directive which states “that Management creates positions as it organizes work and the position’s duties and responsibilities are determined and described in a job specification. All positions must be described, evaluated and classified.” However, the complainants have not identified any term or condition of employment that requires the employer to put all details of their duties in the job description, or that the employer has no right to modify procedure or policy pertaining to the general statements in the job description. The complainants did not dispute that “operation of the facility during rotational on-call periods” was part of their job description, so that the Board does not find that this aspect of the complaint has any chance of success, in light of the undisputed duties of Schedule 6 managers related to giving managerial direction when on-call.

46The complainants also rely on the Board’s recent decision in Boucher v Ontario (Community Safety and Correctional Services), 2018 CanLII 119631 (ON PSGB) to support their request that this complaint be allowed to go forward to a full hearing. There are definitely similarities between the complaint that was allowed to proceed to a hearing in the Boucher decision, cited above, and this complaint. They both relate to on-call duties for Schedule 6 managers, and what is or is not part of the job description at that level. However, there are important differences which explain why that complaint was not dismissed on a preliminary basis, whereas this one will be. Most importantly, Mr. Boucher was not disputing his entitlement under the Compensation Directive for overtime and stand-by time. Rather, he requested that the employer cease the practice of assigning him the work of a Sergeant during his on-call rotation, because of special training and skills that were required for that work and the safety implications of the practice.

Summary

47In summary, the employer’s motion is successful because the Board finds that, although this is not a classification grievance, it does not make out a viable case for the remedies claimed, even assuming all the facts stated in the complaint to be true.

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