PSGB# 2020-0847

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Wickham-Johnson

Complainant

• and –

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

Employer

BEFORE

Thomas Kuttner, Q.C.

Vice Chair

FOR THE COMPLAINANT

Marlene Wickham-Johnson

FOR THE EMPLOYER

Jordanna Lewis Treasury Board Secretariat Legal Services Branch Counsel

HEARING

Written Submissions received on March 24, April 6 & 15, 2021

Decision

Introduction

1This is a complaint filed on June 24, 2020, pursuant to subsection 4(1) of O Reg 378/07 (“the Regulation”) under the Public Service of Ontario Act, 2006, SO 2006 c.35, Sch A, (“the Act”). In it, the Complainant, Marlene Wickham-Johnson, a Sergeant at the Toronto South Detention Centre (“TSDC"), alleges that the Employer violated staffing policies by implementing a new scheduling policy for statutory holidays thereby laying her off from a scheduled statutory holiday shift on May 18th, 2020; and further by being laid off again that day upon recall in violation of the eRoster policy. By way of relief, Ms. Wickham Johnson in her Form 1 Application seeks i.) twenty (20) hours of paid lost statutory holiday pay; ii.) the ability to earn a Statutory Lieu Day; and iii) an exemption from the new scheduling policy for statutory holidays.

2The parties met in a mediation session held before me on February 10, 2021 but were unable to resolve their dispute. At that time, the Employer indicated that it required further particulars of the complaint, and as well that it had a preliminary objection to the Board taking jurisdiction and entertaining this matter on the merits. By way of case management, I advised the parties that I would determine that matter on the basis of written submissions and directed the parties to file particulars and submissions on the preliminary objection according to an agreed schedule: the Complainant to file Particulars, including the specific policies and directives underlying her complaint on February 24, 2021; the Employer to file its Preliminary Objection on March 24, 2021; Ms. Wickham-Johnson her Reply to the Preliminary Objection on April 8, 2021; and the Employer its Sur-Reply on April 15, 2021.

3However, Ms. Wickham-Johnson failed to file Particulars as directed, refiling instead her Notice of Complaint and several e-mails from TSDC regarding scheduling, that were written subsequent to the date of the Complaint. In addition, she failed to file a Reply to the Employer’s submissions on its preliminary objection, simply reiterating instead that her grievance was about violation of the Stat on Stat policy and the overtime call back protocol. At its best, this submission can be said to be a statement of particulars as originally sought by the Employer. In Bazger, (2021) PSGB File P-2020-1180 issued on April 9, 2021, I wrote in similar circumstances:

Under Rule 15 of the Board’s Rules, where a party served with notice fails to attend a scheduled hearing, the Board may proceed to dispose of the complaint in that person’s absence and without further notice. By way of analogy under Rule 25, the Board may proceed with a complaint in the absence of a Reply from a Complainant, without further notice, where it has determined to proceed by way of written submissions and notice has been given to that effect.(at para 3).

4Accordingly, my findings of fact and this decision are based on the written materials filed in this matter (Form 1 Application and Form 2 Response) and the submissions of the Employer on its Preliminary Objection. This decision deals solely with the preliminary objection made by the Employer to the Board’s jurisdiction to entertain this matter on the merits. Where, as here, the Employer pleads that the Complainant has not made out a prima facie case for the relief sought, Rule 11 of the Board rules provides that the facts stipulated in the complaint are assumed to be true.

Background

5At the time of the Complaint, Ms. Wickham- Johnson was one of two Sergeants assigned to the Segregation Review Team (“the SRT”) at TSDC, where she had been engaged for two years. As she explained, her job function is “to work hand in hand with the management team and Correctional staff to ensure that the TSDC complies in reducing inmates who are housed in the conditions of confinement.” (Form 1). The SRT is scheduled on a compressed work week so as to ensure that a member of the Team is always available to complete Segregation Reviews daily in a timely manner, as per policy.

6On Friday, May 15, 2020, Deputy Superintendent of Administration, Jim Aspiotis, issued a memorandum to all Staff advising of “Staffing Adjustments on Statutory Holidays (Employer’s Book of Documents 1, [BOD 1] Tab 2). It stipulated that “due to operational requirements” Program areas, such as SRT would henceforth not require staffing for statutory holidays which fall on a weekday commencing with the Victoria Day holiday on Monday May 18th. The Complainant contacted Mr. Aspiotis that day to voice her concern, but he advised her to complete the Segregation Reviews for May 18th, either the day before or the day after that date, which the Complainant considered to be “illegal” and to contradict the policy.

7Ms. Wickham-Johnson was laid off as per the memorandum, but initially called back and assigned to the Behavioural Care Unit. However, she was laid off again by a Staff Sergeant who hired another Sergeant in her stead for the overtime shift, which Ms. Wickham-Johnson considers to have been a violation of the eRoster policy. When she reported to work on Tuesday, May 19, 2020, Ms. Wickham-Johnson discovered that four Sergeants and two Staff sergeants had completed the Segregation Reviews on May 18th, the day of her lay off. Nevertheless, her supervisor directed her to review and correct that documentation. This, the Complainant considers to be “unfair treatment” inasmuch as she was scheduled on a regular day to redo the work which others had completed while being paid 32 hours compensation.

Submissions

8Counsel for the Employer, Ms. Lewis, filed extensive written submissions on its preliminary objection to the Board’s jurisdiction to entertain this matter. In her opening argument Ms. Lewis stressed that “no term or condition of the Complainants employment has been breached”. The Employer is not required to schedule the Complainant on a statutory holiday, and is completely within its rights to alter a Sergeant’s shifts “based on operational requirements”. (Employer submissions, para 9). The Complainant has not made out a case for the relief sought and the complaint should be dismissed pursuant to Board Rule 11 for failure to establish a prima facie case.

9To establish a prima facie case, a Complainant must establish i) an existing term or condition of employment; ii) breach by the Employer of that term or condition of the employment contract; and iii) a connection between the breach and the remedy requested. Absent a term or condition of employment, or some overriding legal principle, the Board is without jurisdiction either to find a breach or to award a remedy. The Act vests in the Employer discretion to determine staffing and scheduling as part of its managerial rights and to develop policies and tools to manage same at the TSDC. The Employer, by way of the May 15, 2020 memorandum determined that the Complainant was not required to work a previously scheduled statutory holiday. The Board has no free-standing jurisdiction to review such exercise of managerial rights either with respect to scheduling or otherwise.

10At all material times the Complainant was a Sergeant assigned to the SRT at TSDC. Her terms and conditions of employment remained that of a Sergeant, and her scheduling was at all times subject to managerial discretion, as was exercised by the memorandum of March 15th. The Complainant’s plea of unfair treatment by reason of the change to the statutory holiday schedule is not sufficient to ground a prima facie case. General pleas that the Employer must act with integrity and trust and has failed to do so, do not rise to the level of a contractual term or condition of employment. The only constraint in the exercise of managerial rights is that the Employer not act in a manner that is arbitrary, discriminatory or in bad faith.

11The Employer submits that the complaint “fails on the first and second part of the no prima facie test — specifically the complainant has not identified a term or condition of her employment that entitles her to a shift on a statutory holiday nor has she identified any breach by the employer of an existing term or condition of employment.” As to the third criterion of the no prima facie case, subsection 4(2).2 of the Act states that “The assignment of the public servant to a particular class of position” cannot be the subject of a complaint about a working condition or term of employment.

12The Employer can assign and reassign the Complainant, who is a Sergeant, to different posts in the institution. There is no jurisdiction in the Board to override the Employer’s decisions with respect to Sergeants, simply because the decision impacted the Complainant’s schedule in a negative way, or the Complainant considers the decision to have been “illegal”. The Complainant, although assigned to the SRT at TSDC, remains a Sergeant, and her assignment does not change the terms and conditions of her employment such that she has differentiated staffing entitlements on statutory holidays. The Employer was not obligated to keep her on schedule to work on May 18, 2020, a statutory holiday. There is no remedy for the Complainant’s discontent with the direction regarding statutory holidays given in the memorandum of May 15, 2020. That the Complainant had to redo the work of staff sergeants scheduled to work on May 18th, in no way suggests a prima facie breach of her terms or conditions of employment.

13In sum, all of the Complainant’s allegations amount to claims for general unfairnesss. However, the Employer did not act in a manner that was arbitrary, discriminatory or in bad faith in the issuance of the March 15, 2020 memorandum. The Board has no jurisdiction to substitute the Complainant’s preferred outcome regarding the May 18, 2020 shift, over the Employer’s valid exercise of management rights based on the operational requirements that existed at that time at TSDC. The complaint should be dismissed at the prima facie stage.

14In her Sur-Reply of April 15, 2021, Ms. Lewis stressed that the terms and conditions of the Complainant’s remuneration are set out in the Management Compensation Directive (“MCD”) issued pursuant to subsections 33(3) & (4) of the Act. (Employer’s Book of Documents 2 [BOD 2] tab 2). It provides for payment of overtime when worked and payment of holiday pay, but does not provide for entitlement for overtime hours or stat-on-stat recall, in any particular circumstances.

15The Complainant relies on the Provincial Overtime Protocol for the Ministry of the Solicitor General (“the Protocol”) (BOD 2, Tab 1) to ground her complaint of failure to schedule her for an overtime assignment, but the Protocol only applies formally to bargaining unit employees, although the Employer applies it to operational managers to maintain a consistent scheme of distribution for overtime at correctional institutions. The Protocol is not a term or condition of her employment. As it relates to overtime recall, the case is governed by the recently released decision of the Board in Bazger, supra.

16The Employer may cancel a holiday shift based on operational reasons. By reason of the May 15, 2020 memorandum the Complainant was not required to work on May 18th. The Complainant was not on the stat-on-stat recall list or the overtime list for May 18th. She received regular holiday pay in accordance with the MCD.

17In sum, the Complainant cannot point to any term or condition of her employment which the Employer has violated. The decision of the Employer to offer overtime to management employees on a holiday is entirely at the Employer’s discretion and the applicable policy is the MCD, not the Protocol. The Board has no jurisdiction to consider or grant the remedies requested and the complaint should be dismissed as it discloses no prima facie breach of a term or condition of the Complainant’s employment.

18In support, counsel referenced the following jurisprudence: MacDonald et al v Ontario (Community Safety and Correctional Services), 2014 CanLII 76836 (ON PSGB) (O’Neil); Allen et al v Ontario ( Community Safety and Correctional Services), P-2007-2921 (O’Neil); Ilika v Ontario (Community Safety and Correctional Services), 2014 CanLII 76834 (ON PSGB)(O’Neil); Taylor v Ontario (Community Safety and Correctional Services), 2017 CanLII 65620 (ON PSGB)(Devins); Woodward et al v Ontario (Community Safety and Correctional Services), 2006 CanLII9192 (ON PSGB)(O’Neil); Johnston v Ontario (Community Safety and Correctional Services), 2019 CanLII 65197 (ON PSGB)(O’Neil); Huppmann v Ontario (Community Safety and Correctional Services), 2016 CanLII 7471 (ON PSGB)(Nairn); Ontario Public Service Employees Union (Dobroff) v. Ontario (Environment), 2008 CanLII 19779 (ON GSB)(Dissanayake); Bazger v Ontario (Ministry of the Solicitor General), (2021) PSGB P-2020-1180 (Kuttner).

Decision

19The jurisdiction of the Board on a managerial complaint is rooted in subsection 4(1) of the Regulation which stipulates:

4(1) Subject to subsection (2), a public servant who is aggrieved about a working condition or about a term of his employment may file a complaint about the working condition or term of employment with the Public Service Grievance Board.

20The Complainant’s grievance is two-fold. First, she complains that the Employer, by memorandum dated May 15, 2020, improperly laid her off from a scheduled statutory holiday on May 18th to which she was entitled, a so-called stat-on-stat. Secondly, she complains that following that layoff, the Employer failed to recall her to an overtime shift on May 18th, in breach of the Provincial Overtime Protocol. Insofar as this complaint alleges breach of the Provincial Overtime Protocol (“the Protocol”), the facts are practically on all fours with those in the Bazger case. In both, the complainants either were, or would have been scheduled to work a shift on an overtime basis in accordance with the Protocol, or as Ms, Wickham-Johnson put it, the “eRoster” which was established as per the Protocol for overtime assignments.

21In Bazger, I wrote as follows of such a complaint:

[11]… one must read the operative words of the Regulation — “about a working condition or about a term of his employment” — within the context that the Act vests in the Employer broad managerial rights. These can only be limited by statute, such as the Human Rights Code, RSO 1990, c. H-19; or by some contractual term, such as, for instance, that provided by the collective agreement between OPSEU and the Province in the overtime Protocol for employees in the bargaining unit. However, the Complainant, as a managerial employee, does not enjoy the benefit of the Protocol, which he cites as the document governing the implementation and assignment of overtime in his case. But this is manifestly not so. As the Protocol explicitly states its terms apply “as per the Collective Agreement…”. Whereas in the case of a managerial employee, the governing document is the Management Compensation Directive.

12Its terms vest in the Employer a broad discretion to implement an overtime scheme. Although in the exercise of that discretion the Employer has elected to apply the overtime Protocol to managerial employees in the ordinary course, this is without divesting itself of that underlying broad discretion. Thus, as occurred in the case of the Complainant on March 1,2020, the Employer elected not to follow the overtime Protocol, but rather assigned another Sergeant to an overtime shift on that date, instead of the Complainant, who otherwise under the Protocol would have had a right to that overtime assignment.

13The Board has no jurisdiction to alter or amend the Management Compensation Directive which establishes the terms and conditions of employment of a managerial employee.

16Here, based on the facts as set out above, and upon the applicable Board jurisprudence, I find that the Complainant has not made out a prima facie case for the relief sought. In the circumstances the Employer’s preliminary objection is sustained: the Board has no jurisdiction to entertain the within complaint.

So too, here, the Board has no jurisdiction to entertain the complaint of Ms. Wickham-Johnson that the Employer failed to follow the Protocol on May 15, 2020, by assigning a Sergeant other than herself to work an overtime shift on May 18th.

22That leaves for consideration, the Complainant’s first complaint, that by way of its Memorandum of May 15, 2020, the Employer laid her off from a scheduled statutory holiday assignment (a stat-on-stat) for May 18th, Victoria Day, to which she was entitled. It is to be recalled that, as stated above, on May 15th, Deputy Superintendent of Administration, Jim Aspiotis, had issued a memorandum to all Staff advising of “Staffing Adjustments on Statutory Holidays” (Employer’s Book of Documents 1, [BOD 1] Tab 2). It stipulated that “due to operational requirements” Program areas, such as SRT would henceforth not require staffing for statutory holidays which fall on a weekday, commencing with the Victoria Day holiday on Monday, May 18th.

23Was the Complainant entitled to a stat-on-stat assignment for May 18, 2020? Again, the Complainant being a managerial employee, one must look to the MCD to determine her statutory holiday entitlement. In terms of status, Ms. Wickham-Johnson is an operational manager under Schedule 5 of the MCD, (BOD 2, tab 2, p. 121). For such an employee one finds that the MCD provides merely for payment of holiday pay for a statutory holiday, but no entitlement to work a statutory holiday. An assignment to work on a holiday lies at the sole discretion of the Employer. (BOD 2, tab 2, paras 19; 32).

24In the MacDonald case supra, Vice-Chair O’Neil (as she then was) made the following general comment as to when the Board is able to award a remedy to a Complainant:

As noted in earlier decisions of this Board, in order for the Board to be able to award a remedy to a complainant, there must first be an existing term or condition of employment related to the facts complained of, something that is part of the complainant’s contract of employment. This is something more than a belief that something is unfair, no matter how deeply held. Secondly, there must be a breach of that term or condition of employment, and thirdly, there must be a link between that breach and a remedy that the Board is empowered to give. (at para 17.)

25Here, as in Bazger the complaint founders on the first of these requirements: there is no existing term or condition of employment which entitles Ms. Wickham-Johnson to a stat-on-stat holiday assignment. The Board has no jurisdiction to entertain such a complaint.

26In sum, based on the facts underlying this complaint and upon the applicable Board jurisprudence, I find that the Complainant has not made out a prima facie case for the relief sought. Accordingly, the Employer’s preliminary objection is sustained: the Board has no jurisdiction to hear the within complaint.

27This complaint is dismissed.