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 the Solicitor General)

Employer

BEFORE

Andrew Tremayne

Vice-Chair

FOR THE COMPLAINANT

Guy Boucher

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

February 6, 2019 (written submissions completed on April 19, 2019)

DECISION

1The complainant, Guy Boucher, is employed in the Ministry of the Solicitor General as the Deputy Superintendent of Administration for the St. Lawrence Valley Correctional and Treatment Centre and the Brockville Jail. [Note: correctional services, which until recently fell under the Ministry of Community Safety and Correctional Services, is now carried out through the Ministry of the Solicitor General]. This decision deals with Mr. Boucher’s complaint challenging the employer’s decision to assign the duties and responsibilities of a Sergeant (also known as an Operational Manager) to him during his on-call rotation. At the hearing and in their written submissions, the parties used the terms “Sergeant” and “Operational Manager” interchangeably, however the term Operational Manager will be used consistently in this decision to avoid confusion.

2In a preliminary decision dated November 26, 2018, the Board dismissed the employer’s objection that the Board lacked the jurisdiction to hear this complaint and found that the matter could proceed on its merits. This decision addresses the merits of the complaint, and a brief summary of the parties’ arguments on the employer’s preliminary objection is useful as an introduction.

3In that objection, the employer argued that Mr. Boucher was essentially seeking compensation for the times that he was assigned the duties and responsibilities of an Operational Manager, namely compensation in the form of overtime and stand-by time, that would normally apply to the Operational Manager 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 simply do not apply to Schedule 6 employees, argued the employer, so the complaint was really about Mr. Boucher’s job classification, something over which the Board lacks jurisdiction.

4Mr. Boucher responded that he was not disputing his entitlement under the Compensation Directive for overtime and stand-by time, but rather requesting that the employer entirely cease the practice of assigning him to perform the work of an Operational Manager during his on-call rotation. However, Mr. Boucher took the position that if the Board found the employer to be at fault for assigning this work to him, and if the Board decided that a monetary award was warranted, it would be appropriate for the Board to compensate him accordingly.

5In dismissing the employer’s preliminary objection, the Board noted that subsection 4(2)2 of the Public Service of Ontario Act 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. It was therefore open to Mr. Boucher to argue that practice of assigning him to perform the work of an Operational Manager during his on-call rotation is improper. In other words, based on a fair review of the entire complaint as it was framed at that time (and keeping in mind that the Board assumed that the facts as set out in the complaint were true and could be proven), it was up to Mr. Boucher to argue why, if at all, this practice is improper, and why, if at all, he would be entitled to additional compensation for performing that work.

Background and Context

6As stated above, Mr. Boucher is the Deputy Superintendent of Administration for the St. Lawrence Valley Correctional and Treatment Centre and the Brockville Jail. 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, a point which is not in dispute.

7However, on some occasions, the particulars of which are set out in the complaint, the employer has assigned Mr. Boucher to perform the work of an Operational Manager during his on-call rotation. Mr. Boucher says that performing the work of an Operational Manager is not part of his job description. The Operational Manager position has a very specific role and requires detailed job knowledge and mandatory training and qualifications. As a Deputy Superintendent of Administration, he does not have this training or these qualifications, although, he argues, they are essential for anyone to be able to perform the work of an Operational Manager safely and effectively. This is contrary to sections 25-27 of the Occupational Health and Safety Act (OHSA) and to the employer’s own Occupational Health and Safety Policy, argues Mr. Boucher.

8Mr. Boucher requests the following remedy:

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

2. If the Board finds merit to my complaint and determines the employer to be at fault, am requesting restitution for the risk associated with the work, the stress placed on its employee associated with the assignment, the years of imposition with added workload and the deliberate disregard for the health and safety of its employees.

9The employer replies that the assignment (or transfer) of an employee such as Mr. Boucher to any position, including the position of Operational Manager, during an on-call rotation or otherwise, is a management right fettered only by arbitrariness, bad faith, illegality and health and safety. There were legitimate business reasons as to why Mr. Boucher or one of his senior management colleagues had to fulfill the role of Operational Manager on January 13 and February 4, 2018, submits the employer. It does not happen very often, and instances when a Deputy Superintendent is assigned to perform the work of the Operational Manager are rare and are becoming less frequent.

10The employer also submits that the Occupational Health and Safety Act (OHSA) restricts the rights of persons employed in the operation of a correctional facility to refuse work, and in any event, the complainant's assertions of a health and safety risk are speculative and hypothetical based on the evidence that is before the Board.

11For reasons which are set out below, I find that Mr. Boucher has not demonstrated that assigning him to perform the work of an Operational Manager during his on-call rotation was the result of arbitrariness or bad faith on the part of the employer. Specifically, I find that occasionally performing this work is part of Mr. Boucher’s job description as the Deputy Superintendent of Administration for the St. Lawrence Valley Correctional and Treatment Centre and the Brockville Jail and that there were legitimate business reasons as to why Mr. Boucher or one of his senior management colleagues had to fulfill the role of Operational Manager on January 13 and February 4, 2018.

12With respect to the health and safety concerns raised by Mr. Boucher, I find that his assertions of a health and safety risk are speculative and hypothetical based on the facts before the Board. I also find that the employer has not breached the OHSA or its own Occupational Health and Safety Policy, because the evidence did not establish that the employer failed to take every precaution reasonable in the circumstances for his protection.

Evidence

13Mr. Boucher testified at the hearing. He has worked in corrections for approximately 32 years. He started as a Corrections Officer, was promoted to Operational Manager in 2001, and became Deputy Superintendent of Operations at the Brockville Jail in 2010. Since 2012, Mr. Boucher has been the Deputy Superintendent of Administration for the Brockville Jail and the St. Lawrence Valley Correctional and Treatment Center. He reports to Tracy Gunton, Superintendent of the Jail and Treatment Center. There are 2 other Deputy Superintendents serving these institutions: a Deputy Superintendent of Operations at the Jail (the position which Mr. Boucher held from 2010 – 2012), and a Deputy Superintendent of Programs at the Treatment Centre.

14Mr. Boucher testified that the essence of his complaint is that on numerous occasions, the employer has assigned him to perform the work of an Operational Manager during his on-call rotation, and that this is improper and unsafe. The incidents which triggered his complaint took place on January 13 and February 4, 2018, when he was assigned to the position of Operational Manager during his on-call rotation. Mr. Boucher testified that he and his 2 Deputy colleagues have been assigned to the position of Operational Manager approximately 8 times between December 2017 and December 2018. He adds that in 2018, the two institutions generated a total of 250 incident reports for reasons including assault, fire, lock down, death of an inmate, escapes, and serious contraband. There were also many incidents where physical force and chemical munitions were used on an inmate or inmates.

15The job description for Mr. Boucher’s substantive position states, among other things, that he is to assume responsibility for the administration of the institution(s) during after-hours and weekends on a rotational on-call basis. He shares this responsibility with the other 2 Deputy Superintendents, which amounts to each Deputy Superintendent being on-call for approximately 17 weeks each year, Mr. Boucher says. There is an unofficial arrangement that for every week that a Deputy Superintendent is on-call, the employer provides 1 day off in lieu of compensation and an additional day off in lieu is provided if the Deputy Superintendent is required to fill in for an Operational Manager.

16Mr. Boucher says that the Operational Manager 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 (notably MK-3 Oleoresin Capsicum [OC] Foam), first aid and CPR, fire safety, warrants, suicide prevention, respiratory protection, and hazardous materials. There is also site-specific training for both the Jail and for the Treatment Centre. Some of the training requirements need to be refreshed every year or 2 years, and all of these requirements apply to anyone taking the position on a temporary assignment or acting basis. The position is considered to be a frontline managerial position with the responsibility to respond to and manage all emergency situations and determine the level of response required.

17As a Deputy Superintendent of Administration, Mr. Boucher says that he does not have this training and these qualifications, although these are essential for anyone to be able to perform the work of an Operational Manager safely and effectively. In contrast, the mandatory training requirements for his substantive position are relatively minimal. In his view, the employer has refused to implement changes to ensure that he and others in his classification are not assigned to the Operational Manager’s position.

18Detailed and comprehensive Crisis Management Plans are maintained at each institution to ensure the provision of timely and effective operational responses to emergency situations. Emergency situations covered by the plans include, but are not limited to, hostage taking incidents, inmate hunger strikes, riots and disturbances, escapes, bomb threats, external assaults on the institution, emergency evacuations, public utility disruptions, and inmate work stoppages. Mr. Boucher says that having to deal with the possibility of an emergency situations is the primary function of the on-call rotation, but when the employer assigns him to the Operational Manager position during his on-call rotation, this eliminates the availability of a senior officer (namely himself) to respond to a crisis situation. This in turn places the safety of employees, inmates and the safety and security of the general public at risk. In other words, his primary responsibility during his on-call rotation is to respond to a serious situation at the Jail or the Treatment Centre, says Mr. Boucher. For example, it would be impossible for him to report to the Treatment Centre during a serious emergency situation while he is assigned to the Jail as an Operational Manager.

19Mr. Boucher conceded that his training record shows that had been offered training in several of the areas required for the Operational Manager position, including community escort training, first aid and CPR, and dealing with inmates with mental health challenges. Some of these he withdrew from, did not complete, or he was absent due to illness. He also conceded that there were no incidents on January 13 or February 4, 2018 (the dates which triggered his complaint) when he was assigned to the position of Operational Manager during his on-call rotation. He agreed that he did not raise any concerns about his safety or his ability to perform in that position on either of these 2 times he was assigned to it or at any other time he was assigned to the position, and that the first time he raised any of these concerns was when he filed this complaint.

20Ms. Gunton, the Superintendent of the Jail and Treatment Center, testified at the hearing on behalf of the employer. She disagreed with Mr. Boucher’s testimony that he is not qualified to act as an Operational Manager. The Operational Manager usually directs and supervises staff and is not typically on the front line, personally using force, handcuffs, or chemical munitions; Mr. Boucher is qualified to direct and supervise staff and he regularly does so. There may be times when an Operational Manager needs to step in, but in her experience, even if they have not done so for a while, they manage.

21In addition, there are employees regularly working in this and other “front line” positions who can’t perform certain tasks or use certain equipment because of workplace accommodation measures or because they are otherwise restricted from carrying prohibited weapons. Ms. Gunton testified that these employees still work on the floor without carrying chemical munitions, for example. The distinction is that employees need to be trained in the use of chemical munitions before they are allowed to carry them, but there is no hard and fast requirement that an employee actually carry them. Similarly, an employee whose training on the use of handcuffs may have lapsed, could be rusty, but will still likely be capable of using them. Ms. Gunton also notes that not every employee carries handcuffs.

22If there was ever an incident with an inmate and every other option had been tried or considered, it would be appropriate for someone such as a Deputy Superintendent who had not been trained in the use of chemical munitions or handcuffs to use that equipment if it was needed to do the job. If an employee was not trained but had to carry or use this equipment because there were no other options, it would be allowed, in her view.

23Ms. Gunton testified that Mr. Boucher did not raise any concerns, either for his personal safety or otherwise, when he worked as an Operational Manager on January 13 and February 4, 2018. On February 4, Mr. Boucher simply told her that he would be working that night because the employee who was scheduled to work had called in sick and others were not answering their phones. She did not order Mr. Boucher to work the shift, and she is usually notified after the shift has started, as was the case here.

24Ms. Gunton expects any employee who feels unsafe at work, including Mr. Boucher, to let her know. She would then work with them to find out why, and help to mitigate the risks. The Operational Manager is in charge of the buildings and is her designate, says Ms. Gunton, so not filling the position is simply not an option. Someone must be in charge of operations at all times to make sure that everything is running and that procedures are being followed. If Mr. Boucher could not have filled in on January 13 and February 4, 2018, Ms. Gunton says, she would have gone in herself. If there had been any kind of incident she would have gone in right away. There is also a Regional Manager on-call at all times who can assist or come in as necessary.

25Ms. Gunton described one time when Mr. Boucher told her that they were short a manager, although she did not recall when this took place. They discussed staffing options, and one concern raised was that one manager was concerned about working in the secure treatment unit because although he had received the appropriate training, he had not actually worked there. The situation was addressed by having another experienced manager come in and shadow the inexperienced manager for 4 hours and for an on-call manager to provide additional support. In other words, the various concerns were addressed and the situation was resolved.

26It does not happen often that a Deputy Superintendent has to work a shift as an Operational Manager, testified Ms. Gunton. Efforts are always made to find other staff to fill the position, but sometimes employees don’t answer their phones. Sometimes staff are ordered to stay at work and fill the next shift, which causes scheduling problems for the next day but fixes the situation in the short term.

27Measures have also been put in place to reduce the number of times that a Deputy Superintendent is called in to fill in for the Operational Manager. There are more opportunities for employees to be acting as Operational Managers, job shadowing has been introduced, and there are acting Managers in these and other areas. These measures have created a larger pool to fill the shifts of the Operational Manager.

28Deputy Superintendents are responsible for the administration of the institutions after-hours and weekends, on a rotational on-call basis. Although performing the work of an Operational Manager is not specifically set out as part of a Deputy Superintendent’s job description, oversight of the institutions is, and if an Operational Manager cannot be found to fill a shift, then filling the position of Operational Manager is part of a Deputy Superintendent’s duties, says Ms. Gunton.

Parties’ Submissions

29Mr. Boucher argues that the work of an Operational Manager is outside his classification, not within his terms of employment, not within his job description, not part of his on-call responsibilities, and without any means for compensation under the Ministry's Compensation Directive. He adds that every time the employer assigns him to the position of Operational Manager, he is placed at a greater risk because he does not have the tools, the equipment, and the training necessary to protect himself and others. Assigning him to the position also exposes him to discipline and other adverse consequences.

30For example, Mr. Boucher argues, he cannot fulfill the duties and responsibilities that are required of the Operational Manager's position in the event of a fire at the institution, because a Deputy Superintendent does not receive training in fire evacuation and perform monthly fire evacuation drills, nor does he participate in MSA and fire extinguisher training. When he is acting as Operational Manager, he cannot ensure that COs have properly donned protective respiratory equipment prior to sending them into a fire evacuation. This would be a total procedural failure with the potential for serious injuries or loss of life.

31The employer`s Institutional Services Policy and Procedures Manual includes provisions on the use of force, handcuffs, MK-3 (OC) foam, MK-4 (OC) spray, fire safety, and respiratory protection. The essence of these policies is that the Superintendent is responsible for ensuring that all correctional staff are properly trained before using this equipment and that corrections staff follow proper procedures regarding the use of this equipment.

32Mr. Boucher also argues submits that the employer has breached various provisions of the OHSA and the employer’s own Occupational Health and Safety Policy.

33The employer submits that the assignment (or transfer) of an employee such as Mr. Boucher to any position, including the position of Operational Manager, during an on-call rotation or otherwise is a management right fettered only by arbitrariness, bad faith, illegality and health and safety requirements.

34The employer notes that the job description for Deputy Superintendents includes the following:

Purpose:

To manage, coordinate, and oversee identified functions within a correctional institution to ensure public safety and support the care, custody and control of offenders. These functions include:

Operations - oversight of Operational Managers and staff reporting into them.

Programs - offender institutional and local community programs including: chaplaincy, psychology, social work, health care, counseling, and rehabilitation services; recreational programming; and volunteer and community liaison programs.

Services - institutional support service operations including food services, laundry, housekeeping and maintenance.

To assume overall responsibility for the administration and operation of the facility during rotational on-call periods.

Working Conditions:

Work is conducted within a secure detention/custody facility setting that functions on 24 hours a day, 7 days a week with occasional exposure to erratic behavior, verbal abuse, and the potential for physical danger.

May be required to manage emergency medical crises and security breach situations, manage aggressive behavior, and contain and resolve emergency situations.

Shift work could include evenings, nights, weekends and statutory holidays including “on-call” responsibilities.

Oversight of the institutions is part of a Deputy Superintendent’s job description, and if an Operational Manager cannot be found to fill a shift, then the senior managers are responsible for filling that position, and if absolutely necessary, performing the work themselves.

35The employer submits that s. 20 of the Ministry of Correctional Services Act places the statutory requirement of administering a Correctional facility on the Superintendent. In the absence of the Superintendent, the responsibility is delegated to the Deputy Superintendent. The obligation of the Superintendent is the care custody and control of inmates that are placed in the facility on a 24 hour, 365 days per year basis. Ms. Gunton testified that when there is no Operational Manager available to fill a shift, the position must be filled by someone. To run the institution without management in the building is to put the care custody and control of the inmates at risk and to fall short of a statutory duty. In other words, submits the employer, it is simply not an option to have no management in the facility, and on January 13 and February 4, 2018 the Operational Managers who were scheduled to work had called in sick and others were not answering their phones.

36For all of these reasons, argues the employer, there were legitimate business reasons as to why Mr. Boucher or one of his senior management colleagues had to fulfill the role of Operational Manager on January 13 and February 4, 2018.

37Moreover, Ms. Gunton testified that attempts are made to have reassignments to the Operational Manager position used sparingly, and her evidence, which was not challenged, is that the instances of this are becoming less frequent. When a Deputy Superintendent such as the complainant is required to fill in for an Operational Manager there is also an informal arrangement to compensate them by way of providing an additional day off in lieu, which confirms that the employer acknowledges the importance of the assignment.

38The OHSA restricts an employee's right to refuse work in limited circumstances, submits the employer. One of those circumstances is in the case of a person employed in the operation of a correctional facility. This restriction on workers’ rights was enacted by the legislature to recognize that a balancing must occur between the safety of workers in some limited vocations and the life, health or safety of another person which in this case is the inmates in the facility along with fellow employees.

39If the Board were to order the Employer to not assign the complainant or any other person employed in the operation of a Correctional Facility to perform work in a position where there is a legitimate business reason to do so, the Board would be completely writing down a key section of the OHSA, the employer submits. The Act’s restrictions on workers’ rights were enacted by the legislature to recognize that a balancing must occur between the safety of workers in some limited vocations and the life, health or safety of another person, which in this case is the inmates in the facility along with fellow employees. The Board has no authority to read down the OHSA.

40Furthermore, the evidence before the Board is that no incident took place that would have triggered the use of any appliance such as handcuffs or OC foam where the requirement for specialized training is needed on either of the dates mentioned in the complaint. With the greatest respect, submits the employer, the complainant's assertions of health and safety risks are speculative and hypothetical based on the facts before the Board.

41The employer adds that it appreciates Mr. Boucher’s service to the Crown, and submits that if he has concerns about his own training, the employer is committed to taking steps to address those concerns in order that he feels safe and healthy in his workplace. In this regard, should the Board be concerned about Mr. Boucher’s health and safety, then the employer submits that the Board’s jurisdiction is limited to declaratory relief, and the issue of appropriate training should be remitted to the parties to determine what is required.

Issues and Analysis

42The issue to be decided is whether it is improper for Mr. Boucher to be assigned to perform the work of an Operational Manager during his on-call rotation. For the reasons set out below, I find that it is not. As a result, Mr. Boucher’s complaint is dismissed.

43The Board has held that the onus is on a complainant to prove that a non-disciplinary transfer was arbitrary, discriminatory, or made in bad faith. Murphy v. Ontario (Ministry of Transportation), PSGB # 1992-0017; Aspiotis v. Ontario (MCSCS), PSGB # 2017-2377. The employer’s right to transfer an employee is also subject to health and safety requirements. The parties agreed this is the appropriate test to be applied in this matter.

44Mr. Boucher’s first argument is that performing the work of an Operational Manager is not part of his job description. The job description of a Deputy Superintendent says that the purpose of the position is “to manage, coordinate, and oversee identified functions within a correctional institution to ensure public safety and support the care, custody and control of offenders [emphasis added].” These functions include: “oversight of Operational Managers and staff reporting into them,” and “to assume overall responsibility for the administration and operation of the facility during rotational on-call periods [emphasis added].”

45In my view, as the Deputy Superintendent of Administration for the St. Lawrence Valley Correctional and Treatment Centre and the Brockville Jail, Mr. Boucher is part of a small cadre of senior managers who are responsible for the oversight of these two institutions. Someone must be in charge of operations at all times to make sure that everything is running and that procedures are being followed. The Operational Manager is in charge of the buildings and is the Superintendent’s designate, and as Ms. Gunton made clear, not filling the position is simply not an option. As a result, if an Operational Manager cannot be found to fill a shift, then the senior managers are responsible for filling that position, and if absolutely necessary, performing the work themselves. This responsibility is a small but essential part of a Deputy Superintendent’s more general and overall responsibility for the operation of the Treatment Centre and the Jail.

46The Working Conditions section of Mr. Boucher’s job description includes clear references to the health and safety risks that are of concern to him, namely “occasional exposure to erratic behavior, verbal abuse, and the potential for physical danger [emphasis added].” It is also specifically mentioned that the Deputy Superintendent “may be required to manage emergency medical crises and security breach situations, manage aggressive behavior, and contain and resolve emergency situations [emphasis added].” In my view, this provides additional support for the employer’s position that Mr. Boucher may sometimes be required to work in situations where he may be exposed to health and safety risks. While these risks must be managed in accordance with all of the applicable health and safety requirements that are set out in the OHSA (a point which is addressed in greater detail below), it is well within the scope of Mr. Boucher’s duties and responsibilities that he may from time to time be exposed to hazardous situations.

47Mr. Boucher has been assigned to perform the work of an Operational Manager very few times. His own evidence is that he and his two Deputy colleagues were assigned to the position of Operational Manager approximately eight times between December 2017 and December 2018. Two of these occasions took place on the dates which triggered his complaint, namely January 13, 2018 and February 4, 2018. Given that the facilities operate on a 24 hour, 365 days per year basis, and that the position of Operational Manager must always be filled, the number of times that Mr. Boucher and his senior management colleagues have been called upon to actually fill this position is extremely low. In my view, this is reasonable for work which cannot be said to be one of the core duties and responsibilities of a Deputy Superintendent but which is appropriately described as part of his more general and overall responsibility for the operation of the Treatment Centre and the Jail.

48The Board has held that managers in a correctional facility are expected to demonstrate and uphold high standards; they must not only perform but also model a managerial role Gronski v. Ontario (MCSCS), 2015 CanLII 67988; Lee v. Ontario (MCSCS), PSGB # 2016-1344; and Huppmann v. Ontario (SOLGEN), PSGB # 2016-1778. While these decisions involve complaints about disciplinary measures, the comments are equally applicable here. As mentioned above, Mr. Boucher is part of a small cadre of senior managers who are responsible for the oversight of two facilities. No written policy is necessary to establish an expectation that a Deputy Superintendent discharge their responsibility for the custody and supervision of every person in their institutions as well as their duty to the public, to the best of their abilities, within the limits of the resources provided by the employer for them to do so. Similarly, it is not necessary for the written job description to set out in detail the complete range of a Deputy Superintendent’s overall duties and responsibilities, particularly when it comes to their general responsibility for the operation of the facilities where they work.

49Ms. Gunton gave evidence, which was not challenged, about the employer’s efforts to minimize the number of times that a Deputy Superintendent has to work a shift as an Operational Manager. When an Operational Manager who is scheduled for work calls in sick or is otherwise unable or unwilling to report for duty, efforts are always made to find other staff to fill the position, but sometimes employees don’t answer their phones. Sometimes staff are ordered to stay at work and fill the next shift, which causes scheduling problems for the next day but fixes the situation in the short term. There are also more opportunities for employees to be acting as Operational Managers, job shadowing has been introduced, and acting Manager positions have been created in these and other areas. These measures have created a larger pool to fill the shifts of the Operational Manager, testified Ms. Gunton. In my view, these measures reflect a reasonable and good-faith effort by the employer to minimize the number of times that a Deputy Superintendent has to work as an Operational Manager. The evidence simply does not support Mr. Boucher’s contention that the employer has refused to implement changes to ensure that he and others in his classification are not assigned to the Operational Manager’s position. The standard is not perfection, and there will always be situations when an Operational Manager simply cannot be found to fill a shift.

50For all of these reasons, I find that performing the work of an Operational Manager is, in the limited circumstances in which this had occurred based on the evidence before the Board, part of Mr. Boucher’s job description. There were legitimate business reasons for why Mr. Boucher or one of his senior management colleagues had to fulfill the role of Operational Manager on January 13 and February 4, 2018. As a result, Mr. Boucher has failed to discharge the onus to show that this was arbitrary, discriminatory, or done in bad faith.

51Mr. Boucher’s second argument is that as a Deputy Superintendent of Administration, he does not have the extensive training and qualifications that are essential for anyone to be able to perform the work of an Operational Manager safely and effectively.

52First, I note that Mr. Boucher has worked in corrections for approximately 32 years. He started as a Corrections Officer, was promoted to Operational Manager in 2001, became Deputy Superintendent of Operations at the Brockville Jail in 2010, and has been Deputy Superintendent of Administration for the Treatment Centre and the Jail since 2012. Mr. Boucher is a seasoned and highly experienced employee who has worked in corrections for most of his career and has risen to senior managerial ranks. On this basis alone, it is difficult to agree with his contention that he was not qualified to act as Operational Manager on the few occasions when he was assigned to do so.

53Ms. Gunton explained why she disagreed with Mr. Boucher’s evidence that he is not qualified to act as an Operational Manager. She testified that the Operational Manager usually directs and supervises staff and is not typically on the front line, personally using force, handcuffs, or chemical munitions. She testified that there may be times when the Operational Manager needs to step in, and the person may not have done so for a while, but they manage. Mr. Boucher did not have to be on the front line and personally use force, handcuffs, or chemical munitions when he was assigned to the position of Operational Manager on January 13 or February 4, 2018, nor is there any evidence before the Board that he has been required to do so at any other time since he became Deputy Superintendent of Operations. This aligns with Ms. Gunton’s evidence.

54Second, Ms. Gunton also testified that there are employees who regularly work in front-line positions who can’t perform certain tasks or use certain equipment, either because of workplace accommodation measures, or because they are otherwise restricted from carrying prohibited weapons, or for other reasons. These employees still work on the floor without carrying chemical munitions. She made the distinction between employees who need to be trained in the use of chemical munitions before they are allowed to carry them, and the absence of any requirement that an employee actually carry them. Similarly, she testified that an employee whose training on the use of handcuffs may have lapsed may be rusty, but they will still likely be capable of using them; moreover, not every employee carries handcuffs. In other words, there is no hard and fast requirement that Mr. Boucher carry handcuffs and chemical munitions when he works as an Operational Manager.

55If there was ever an incident with an inmate and every other option had been tried or considered, testified Ms. Gunton, it would be appropriate for someone such as a Deputy Superintendent who had not been trained in the use of chemical munitions or handcuffs to use that equipment if it was needed to do the job. In other words, if Mr. Boucher felt that he had to carry or use this equipment because there were no other options, it would be appropriate for him to do so. In my view, this properly allays any concerns that Mr. Boucher may have about facing disciplinary consequences as a result of working as an Operational Manager.

56The detailed job knowledge, mandatory training, and extensive qualifications that are required for the Operational Manager are set out above and need not be repeated here. The employer did not dispute that some of the training requirements need to be refreshed every year or 2 years, and that all of the requirements apply to anyone taking the position on a temporary assignment or acting basis. In my view, there is a difference between the extent to which an employee who is permanently in a position (or who is assigned to a position for a significant period of time) is expected to possess the detailed job knowledge, mandatory training, and extensive qualifications for the position on the one hand, and the expectations for a seasoned senior manager who is rarely assigned to the position on the other hand. It is reasonable for some flexibility and common sense to be applied in the application of the employer’s policies, particularly when the assignment is rare or only happens in exceptional circumstances.

57In any event, the evidence strongly suggests that many of Mr. Boucher’s concerns could be addressed by additional training or by refreshing or recertifying his existing qualifications. It is open to Mr. Boucher to identify any concerns about his training as it relates to health and safety matters. The employer has encouraged Mr. Boucher to do so, and it has committed to addressing his reasonable concerns. The Board endorses and echoes that encouragement.

58With respect to the OHSA and the employer’s own Occupational Health and Safety Policy, Mr. Boucher mentioned sections 25-27 of the OHSA (and similar sections from the Policy) in his submissions, although he did not specifically explain how the employer has actually contravened either. However, his point appears to be that the employer should under no circumstances be permitted to ask him to fill in for the Operational Manager.

59The OHSA requires the employer (and a supervisor) to “take every precaution reasonable in the circumstances for the protection of a worker.” (ss. 25(2)(h) and 27(2)(c)). Mr. Boucher was not on the front line nor did he personally use force, handcuffs, or chemical munitions when he was assigned to the position of Operational Manager on January 13 or February 4, 2018, and there is no evidence before the Board that he has been required to do so at any other time since he became Deputy Superintendent of Operations. The Operational Manager usually directs and supervises staff and is not typically on the front line, personally using force, handcuffs, or chemical munitions. If the Operational Manager needs to step in, the person may be rusty, but they manage. These are the overall circumstances in which Mr. Boucher has found himself when he has acted in the position of Operational Manager.

60In addition, there is a robust array of resources available to assist Mr. Boucher or any other Deputy Superintendent assigned to the position of Operational Manager as needed. There is a Regional Manager who is on-call at all times and who can assist or come in as necessary. Ms. Gunton would have worked as the Operational Manager if Mr. Boucher had declined to do so, as she would have had there been any kind of incident.

61Taken together, the totality of the evidence shows that the employer takes the matter seriously, and that it has adopted a variety of measures to minimize the number of times that Mr. Boucher and the other Deputy Superintendents have to work as an Operational Manager. It has also made available a robust array of resources to assist Mr. Boucher, who has worked in corrections for 32 years, as needed, during the very few times he has worked as an Operational Manager. The employer is not required to take every precaution that is available to protect Mr. Boucher. It is required to take every precaution that is reasonable to protect Mr. Boucher and other Deputy Superintendents, when they from time to time do the work of an Operational Manager. In my view, in light of all of the relevant circumstances and based on the evidence before the Board, the employer has met the appropriate standard. As a result, the evidence does not establish that there has been a violation of the OHSA.

Disposition

62Having carefully considered the evidence and the parties’ submissions, I find that Mr. Boucher has not demonstrated that assigning him to perform the work of an Operational Manager during his on-call rotation was the result of arbitrariness or bad faith on the part of the employer. Specifically, I find that occasionally performing this work is part of Mr. Boucher’s job description as the Deputy Superintendent of Administration for the St. Lawrence Valley Correctional and Treatment Centre and the Brockville Jail and that there were legitimate business reasons as to why Mr. Boucher or one of his senior management colleagues had to fulfill the role of Operational Manager on January 13 and February 4, 2018.

63With respect to the health and safety concerns raised by Mr. Boucher, I find that his assertions of a health and safety risk are speculative and hypothetical based on the facts before the Board. I also find that in the circumstances, the employer has taken every precaution reasonable to protect Mr. Boucher and other Deputy Superintendents when they from time to time do the work of an Operational Manager. As a result, the evidence does not establish that there has been a violation of the OHSA.

64For all of these reasons, the complaint is dismissed.