PSGB# P-2020-2108

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Joncas

Complainant

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Allen Ponak

Vice Chair

FOR THE COMPLAINANT

Dean Joncas

FOR THE EMPLOYER

Jordanna Lewis Treasury Board Secretariat Legal Services Branch Counsel

SUBMISSIONS

Written submissions received on February 15; March 1 and March 8, 2021

Decision

ISSUE AND BACKGROUND

1Mr. Dean Joncas is a sergeant at the Ottawa Carleton Detention Centre (“OCDC”), part of the Ministry of Solicitor General. On November 28, 2020, Mr. Joncas filed a complaint with the Public Service Grievance Board (“PSGB”), “grieving the working conditions through systemic discrimination” (File # P-2020-2108). In particular, the complaint alleged: 1) lack of payment of meal allowances for sergeants working an extended shift; and 2) lack of payment of shift premiums while working overtime. The complaint alleged that employees below the rank of sergeant who work in OCDC receive such payments and the denial of these payments to the sergeant group was unfair and discriminatory. The complaint also claimed that sergeants had received meal allowances during extended hours in the past. As a remedy, Mr. Joncas requested compensation for all lost compensation dating back to January 2013 for shift premiums and April 2019 for meal allowances.

2The Employer disputed these claims, taking the position that Mr. Joncas had been paid in accordance with Ministry pay policies in effect for sergeants. It denied the allegations of systemic discrimination and suggested, as a preliminary objection, that no prima facie case had been made out that the Employer’s actions violated any anti-discrimination law or any Employer compensation policy. The Employer raised a further preliminary objection asserting that the complaint had been filed outside the mandatory time limits specified in the governing PSGB regulations.

3Following my appointment as adjudicator for this matter, a case management conference call was held on January 15, 2021 with Mr. Joncas and Ms. Jordanna Lewis, counsel for the Employer. It was agreed that the parties could address the Employer’s preliminary objections through written submissions. These submissions were received on February 15, 2021, March 1, 2021, and March 8, 2021 and the foregoing decision is based on those submissions.

SUBMISSION OF THE EMPLOYER

4The Employer submitted that, as a sergeant, Mr. Joncas is part of the Management Compensation Plan (“MCP”) and is excluded from the bargaining unit to which many of the employees whom he supervises belong. In other words, he is not governed by the collective agreement between the Ontario Public Service Employees Union (“OPSEU”) and the Government of Ontario. The compensation provisions that apply to Mr. Joncas are determined by the Employer through the MCP. Under the MCP, the Employer argued, Mr. Joncas “is not entitled to the meal allowances he has claimed nor is he entitled to shift premium allowances while working overtime” (Employer brief, paragraph 11).

5With respect to shift premiums, the Employer drew attention to section 26(2) of the MCP which states:

An employee who is entitled to be paid overtime when he or she works in the circumstances described in subsection (5) is not entitled to be paid a shift premium for the same period of work.

Section 26(5) indicates when shift premiums apply but section 26(2) “makes it crystal clear that since the Complainant is entitled to be paid overtime, he is not entitled to be paid a shift premium as well” (Employer brief, paragraph 22). The Employer argued that the Public Service Grievance Board (the “Board”) has no jurisdiction to “disturb those terms on mere allegations of unfairness” (Employer brief, paragraph 25). The Employer cited the following case in support of its position that employees in Mr. Joncas’ classification were not entitled to shift premiums under MCP (or its predecessor) notwithstanding that bargaining unit employees who they supervised received such premiums: Mark Drakos et al. v. Ministry of Community Safety and Correctional Services 2007 CanLii 30470.

6With respect to meal allowances during extended shifts, the Employer took the position that there is no provision in the MCP that entitles Mr. Joncas to a meal allowance on a shift extension. Thus, “he is simply alleging that he is no longer receiving a meal allowance that other employees in his workplace continue to receive. …… the Employer may exercise its discretion … and the Board does not have jurisdiction to disturb those decisions” (Employer brief, paragraph 53). Even accepting as true Mr. Joncas’ claim that he had received a meal allowance on extended shifts in the past, “the discretionary payment simply came to an end for his sergeant group” (Employer brief, paragraph 57). The Employer cited several cases including: OPSEU (Dubroff) v. Ministry of Environment 2008 CanLii 19779 (ON GSB) Dissanayake.

7According to the Employer, Mr. Joncas had failed to establish a prima facie case both with respect to his meal allowance and shift premium claimed violations, even after assuming that he had not been paid either shift premiums or meal allowances. The Employer asserted that under Rule 11 of the Public Service Grievance Board the complaint could be dismissed as a preliminary matter. Rule 11 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 reasons.

The Employer cited the following cases in support of its argument that the complaint could be dismissed on the ground that Mr. Joncas had failed to make a prima facie case to support the complaint: James Allen et al. v. Ministry of Community Safety and Correctional Services P-2007-2921 (O’Neil); and, Hugh MacDonald et al. v. Ministry of Community Safety and Correctional Services P-2013-0273 (O’Neil).

8The Employer turned to the allegation that it had discriminated against Mr. Joncas. According to the Employer, the complaint does not establish a prima facie case for discrimination. In particular, it was submitted that discrimination must be based on an enumerated ground in human rights law, such as age or disability or race. The complaint did not reveal any such ground – “the complainant’s classification as sergeant in the Ontario Public Service is not an enumerated ground under the Human Rights Code” (Employer brief, paragraph 74). Further, the Employer argued that “honest and genuine belief in discrimination is not prima facie evidence of discrimination” (Employer brief, paragraph 85). In the Employer’s submission, the “fact that various employees in the OPS are paid differently does not mean the Complainant was discriminated against” (Employer brief, paragraph 87). The Employer cited the following case in support of its position that Mr. Joncas’ complaint had failed to disclose a basis for discrimination: Mitchell v Kerry’s Place Autism Services, 2012 HRTO (Mitchell).

9Finally, the Employer asserted that Mr. Joncas’ complaint was untimely and could be dismissed on that basis. It noted that the complaint was about the lack of shift premium pay dating back to 2019 and meal allowances dating to 2013. Thus, it could be inferred that Mr. Joncas was aware of the alleged breaches by 2019 and 2013, respectively. Yet, his complaint was not filed until November 2020. The Employer pointed out that the governing statutory regulations contain strict and mandatory time limits and that Mr. Joncas “was required to notify the Deputy Minister within 14 days of becoming aware of the working condition or term of employment that gave rise to the complaint” (Employer brief, paragraph 95). The complaint was filed far in excess of 14 days after Mr. Joncas became aware that he was not receiving meal allowances or shift premiums and therefore, the Employer argued, must be dismissed as untimely. The Employer submitted that the Board had no jurisdiction to relieve against a time limit violation, citing Hasted/Berezowsky v The Crown in Right of Ontario (MCSCS) PSGB 2014-2665.

SUBMISSION OF MR. JONCAS

10Mr. Joncas responded to the Employer’s preliminary application that his complaint be dismissed. He disagreed that the complaint failed to disclose systemic discrimination, citing definitions provided in the Human Rights Code (“Code”) as follows: “also called institutionalized discrimination, refers to a method of discrimination which occurs regularly in the workplace as an inherent part of the company through interactions and processes creating a disadvantage for people with a common set of characteristics” (Joncas brief, paragraph 1). He argued that the Employer’s practices and policies were “systematically discriminatory to the sergeant group… intentionally treating them differently, as the Ministry does between the correctional officer and sergeant group” (Joncas brief, paragraph 5). He pointed that sergeants work closely with correctional officers, the main difference lying in the supervisory role of sergeants and the fact that sergeants are not covered by the OPSEU collective agreement. He submitted that because correctional officers received shift premiums during overtime and meal allowances on extended shifts, sergeants were victims of systemic discrimination.

11Mr. Joncas took issue with the Employer’s claim that the compensation policy for sergeants restricted the Board’s jurisdiction to intervene. He suggested that the Board has the authority and duty to overturn bad policies arguing that “women having the right to vote was a result of a law and policy changed because it was wrong” (Joncas brief, paragraph 8). He pointed to Indian Residential Schools as another wrong policy that was changed, reiterating that sergeants were clearly being discriminated against compared to correctional officers and that the Board should right an obvious wrong.

12Mr. Joncas disagreed that the regulations precluded the granting of meal allowances, citing the case of another sergeant who had been granted meal allowances by the deputy director of his facility in Ottawa (Joncas brief, paragraph 9). In Mr. Joncas’ view, this created a past practice that should be applicable to his case.

13Mr. Joncas did not agree that his complaint was untimely. He suggested that he had raised the issue with Superintendent Michael Wood who had requested he wait until the matter could be investigated. When the superintendent informed him that his compensation requests would not be granted, he had filed the current complaint. Any delay, Mr. Joncas argued, lay with management, not him (Joncas brief, paragraph 9).

14Accordingly, Mr. Joncas requested that the merits of the complaint be heard.

EMPLOYER REPLY

15The Employer replied that “the entirety of the Complainant’s discrimination case rests on a distinction between sergeants and correctional officers – a distinction that cannot ground a human rights claim in any way” (Employer reply, paragraph 11). The Employer reiterated that Mr. Joncas had failed to identify the term of employment that had been violated. On the contrary, he had conceded that that applicable policies did not support his case but instead asked the Board to correct what he believed to be an obvious wrong. The Employer submitted that “the Board has consistently rejected this type of argument as insufficient to establish prima facie entitlement to discretionary compensation, particularly when made by sergeants in correctional institutions” (Employer reply, paragraph 23).

16With respect to the timeliness of the complaint, the Employer agreed that Superintendent Wood did not issue a decision about Mr. Joncas’ claim until October 1, 2020. However, the time clock for filing a claim did not stop while Mr. Joncas awaited word from his superintendent. The Employer submitted that Mr. Joncas “made a choice … to wait until Superintendent Wood got back to him” (Employer reply, paragraph 36) and that this reason for failing to meet the time limits “however sympathetic or compelling, do not assist the Complainant when the Board lacks the jurisdiction to relieve against them” (Employer reply, paragraph 37).

17Accordingly, the Employer asked that the complaint be dismissed.

DECISION

18It is the Board’s decision to uphold the Employer’s preliminary application that the complaint be dismissed. It is our determination that the complaint is untimely, that Mr. Joncas has failed to establish grounds for a discrimination claim, and that, even if the Board accepted that all facts as submitted by Mr. Joncas are true, the complaint cannot succeed.

A. Timeliness

19It is the Board’s conclusion that the complaint is untimely. The complaint was filed on November 28, 2020. On its face, it refers to meal allowances for the fiscal year of “April 2019 to present” and “shift premiums lost since January 2013”. Under Regulation 378/07 of the Public Service of Ontario Act, notice of a complaint about a working condition or term of employment must be given “within 14 days after the complainant becomes aware of the working condition or term of employment giving rise to the complaint”. The Board draws the inference that Mr. Joncas was aware that he was not receiving meal allowances for extended shifts or shift premiums during overtime for a period well in excess of the 14 days. It is unnecessary to pin down the precise date at which Mr. Joncas became aware that he was not receiving these payments. It is sufficient to note that in the complaint itself, as well as his written submission, Mr. Joncas stated that he raised the matter with Superintendent Wood and that he held off filing his complaint “since the beginning of the year” (i.e. the beginning of 2020), while he awaited the superintendent’s response. I find that Mr. Joncas was aware of the terms of employment that lie at the heart of his complaint by early 2020. By November 2020, his complaint was long out of time.

20It is well established in the Board’s jurisprudence that the time clock for filing a complaint does not stop while a response is being sought. The 14 day clock begins ticking the moment an employee becomes aware of the issue underlying the complaint (see, Hasted/Berezowsky). Unlike under some legislative regimes and collective agreements, the Board has no discretion to relieve against time limit violations in cases, such as this one, where the delay in filing was for sound labour relations reasons – i.e. to give his superiors a chance to look into the matter. The Board has no choice but to find that the complaint is untimely and must be dismissed.

B. Discrimination

21Even if the complaint was timely, the Board would still dismiss it. The essence of Mr. Joncas’ discrimination complaint is that correctional officers receive shift premiums during overtime and meal allowances during extended shifts and sergeants do not receive these payments. While Mr. Joncas no doubt considers this unfair, it is not discriminatory from a legal perspective. Our anti-discrimination protections in Canada are embedded in our human rights legislation – in Ontario this means the Ontario Human Rights Code. At the risk of oversimplifying, the Code does not provide unlimited protection against any kind of alleged discrimination but instead provides protection against discrimination based on specific characteristics. These characteristics are expressly listed or enumerated in the legislation. Included in this list of protected characteristics are age, race, family status, and disability among others. There are 17 protected grounds that are expressly listed in the legislation.

22The Code does not prevent an employer from treating different classifications of employees differently as long as the differential treatment does not run afoul of one of the protected grounds (for example, treating a mostly female group of employees differently from a mostly male group doing the same job). There is no protection in the Code for “employee classification”. An employer is able to determine the compensation and working conditions of its employees and is legally entitled to decide one group can receive certain benefits that another group is denied. That is not discrimination as defined in the applicable legislation.

23In the current case, Mr. Joncas alleges that correctional officers are entitled to shift premiums when they work overtime and receive meal allowances during extended shifts. As a sergeant he does not receive these payments. His assertion about correctional officers may well be true (there have been no submissions on the compensation provisions for correctional officers), but even if that is the case, the fact that Mr. Joncas does not receive the same payments does not violate that Ontario Human Rights Code. It is perfectly legal for the Employer to choose to compensate different classifications of employees differently. I note that correctional officers are covered by the collective agreement between the Ministry and OPSEU and that sergeants, as managerial employees, are governed by the Management Compensation Plan. The fact that the compensation provisions of the collective agreement and the MCP are different is hardly surprising. This differential treatment cannot constitute discrimination under Ontario law.

24Accordingly, the Board concludes that Mr. Joncas has failed to make a prima facie case of discrimination. His complaint of systemic discrimination, therefore, must be denied.

C. Rule # 11

25There is a third preliminary ground under which this complaint is dismissed. Rule # 11 under the PSGB’s “Rules and Practice” has been set out earlier in this award. It enables an adjudicator to dismiss a case on a preliminary application if, even assuming the complainant’s facts are all true, the complaint still cannot succeed. In this case, that means accepting that: 1) Mr. Joncas has not been paid shift premiums while working overtime; 2) Mr. Joncas has not been paid meal allowances during extended shifts; 3) Mr. Joncas received meal allowances in the past during extended shifts; 4) at least one sergeant has recently received a meal allowance during an extended shift at OCDC; and 5) correctional officers routinely receive shift premiums and meal allowances in the same circumstances. The Board is satisfied that assuming all these facts are true, Mr. Joncas’ complaint cannot succeed.

26With respect to shift premiums, section 26(2), cited earlier in the award, is determinative – an employee being paid overtime cannot also be paid a shift premium for the same work. This provision is unambiguous and cannot be overcome based on the facts at hand.

27With respect to meal allowances, discretion to grant or not grant meal allowances in individual situations is delegated to senior management under sections 4.1 and 4.2 of the “Travel, Meal, and Hospitality Directive” of the Management Board of Cabinet. Mr. Joncas’ complaint is not that this discretion was exercised unfairly or arbitrarily towards him in a particular situation. Rather the basis of his claim is that sergeants received them in the past, he knows of one sergeant at OCDC who recently was granted a meal allowance, and correctional officers receive them.

28The Board has already addressed the differential treatment of sergeants and correctional officers which is based, among other reasons, on the fact that correctional officers are governed by a collective agreement and sergeants are not. The sergeant-correctional officer difference cannot be a basis for challenging the discretion of senior management to provide meal allowances to sergeants. Second, the fact that sergeants may have received meal allowances in the past or that a sergeant at OCDC recently was granted a meal allowance merely reinforces the discretionary rights of senior management in this regard. It provides no factual basis of inappropriate exercise of that discretion. The complaint and submissions of Mr. Joncas do not provide even the hint of such evidence. Therefore, neither the past practice nor the granting of a meal allowance to another sergeant, without a great more evidence, can form the basis for a successful challenge to lack of meal allowances for Mr. Joncas.

29Accordingly, Board accepts the Employer’s submission that the complaint should be dismissed under Rule # 11.

AWARD

30It is the Board’s conclusion that the complaint should be dismissed on a preliminary application for the following reasons:

1. The complaint is untimely.

2. Mr. Joncas has failed to make a prima facie case for discrimination.

3. Even accepting all facts as alleged by Mr. Joncas to be true, the complaint cannot succeed. It is therefore dismissed under PSGB Rule # 11.