PSGB# 2019-0548

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Berezowsky et al

Complainant

• and –

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

Employer

BEFORE

Reva Devins

Vice Chair

FOR THE COMPLAINANTS

Evelyn Berezowsky and Deborah Wood for themselves and Bryce Barber, Mike Edgar and Gregory Kitzul

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

Conference call on December 2, 2020 Written submissions on December 2, 2020; February 23 and March 8, 2021

Decision

1The Complainants, Ms. Berezowsky, Mr. Barber, Mr. Edgar, Mr. Kitzul and Ms. Wood have challenged the Employer’s refusal to grant their requests for enhanced severance benefits under the Voluntary Exit Program (“VEP”).

2The Employer raised a preliminary motion, asking that the complaints be dismissed on the grounds that the Public Service Grievance Board (the “Board” or “PSGB”) does not have jurisdiction to hear the complaints. The Employer relied on the Board’s decision in Tighe v. Minister of the Solicitor General, P-2015-0638, issued on May 29, 2020, in which I found that complaints of this nature do not raise an alleged violation of a term or condition of employment and the PSGB therefore does not have jurisdiction.

3A number of employees had submitted similar complaints regarding the administration of the VEP. Tighe was the first case to be heard, and although the cases were not formally consolidated, the Board provided all of complainants who might be affected by the jurisdictional dispute an opportunity to be heard. Similarly situated complainants were sent a copy of the Employer’s written submissions and the cases it relied upon. Ms. Berezowsky and Wood and Mr. Barber, Edgar and Kitzul took advantage of this opportunity and provided written submissions on the Board’s jurisdiction to consider complaints about the VEP. Their arguments were taken into account and expressly addressed in the final decision in Tighe.

Employer’s Submissions

4The Employer reiterated the position it took in Tighe that the VEP does not form a term or condition of employment until the employee’s application is approved by the Employer. The Employer submitted that when interpreting the Public Service Act of Ontario (“PSOA” or the “Act”), the legislation that governs the Board’s jurisdiction to hear complaints, the PSGB has consistently held that it will only enforce or interpret an existing term and condition of employment and cannot create new ones. While terms and conditions can include provisions in applicable legislation, such as the Human Rights Code, the allegations must relate to an existing term or condition of employment.

5The Employer argued that it did not make any commitments to existing employees when it communicated the existence of the VEP. Rather, it merely advised of an opportunity that might lead to revision of an employee’s existing contract. Counsel suggested that in accordance with the law governing contracts, the communication of the VEP was properly characterised as an invitation to treat: interested employees were invited to apply with an offer to leave under the conditions set out in the announcement, but the right to receive those benefits did not crystallise or form a term of the contract until approved by the Employer.

6Counsel maintained that employees initiated the VEP process by submitting a voluntary application to exit the OPS, but they remained free to withdraw their offer at any point before it was approved. Conversely, approval of the application remained in the sole discretion of the Employer. Ultimately, in the Employer’s view, there was no binding contract or term of employment until it accepted the employee’s offer. Counsel referred to the legal requirements related to invitations to treat that are set out in The Law of Contracts, Fifth Edition, Waddams and applied in UHN (Western and General Hospitals) and ONA, 2016 CanLII 6259 (ONLA) (Albertyn).

7The Employer acknowledged that once approved, the provisions of the VEP would become a term of employment and the Board would have jurisdiction to hear complaints about the Employer’s execution of those provisions. However, there was no “working condition or term of employment” over which the Board had jurisdiction prior to approval of a request for VEP.

8Counsel relied on a number of cases from the PSGB that have considered the limits of its jurisdiction, including findings that it does not have jurisdiction to hear a complaint generally alleging that the process or the decision was unfair or have the remedial authority to grant the relief requested by the Complainants: Scott et al v Ministry of Transportation, P-0001/96, July 7, 1998 (Lynk); L. Scarr v Ministry of Health, P-0131/96, May 7, 1997 (Leighton); Hasted/Berezowsky v Ministry of Community Safety and Correctional Services, P-2014-2665, January 18 2016 (Nairn); Mills v Ministry of Transportation, P/0015/97, March 13, 1998 (Walter); MacDonald et al v Ministry of Community Safety and Correctional Services, P-2012-4718, November 7, 2014 (O’Neil); Ransome v Ministry of Health and Long-Term Care, P-, October 30, 2006 (O’Neil); Garatt et al. v Ministry of Community Safety and Correctional Services, P-2003-1670, May 17, 2005 (O’Neil). Counsel also referred to the following case from the GSB: Sutherland v Ministry of Labour, GSB# 2006-0519 (Dissanayake).

9Lastly, counsel for the Employer commented on the application of the duty of good faith set out in Bhasin v Hrynew, 2014 SCC 71. Counsel noted that the case arose in the context of a commercial contract and introduced two incremental steps to make the law more coherent and just. First, the SCC established that good faith contractual performance is a general organising principal of the common law. Second, that there is a common law duty to act honestly in the performance of contractual obligations. In the Employer’s submission, there are no alleged facts in the present case in which the doctrines set out in Bhasin could be invoked: the Complainant has not made any allegations or identified facts that would support a finding of bad faith or dishonesty.

10Counsel recognised that the complainants assert a lack of transparency that leaves them unable to determine whether there was bad faith in the determination of their application. However, counsel argued that the Board rejected a similar argument in Garratt et al, supra. The Employer submitted that in the ultimate analysis, the complainants have not identified a term or condition of their employment that entitles them to a particular process, a specific form of communication or transparency in the approval process. Nor have they identified any term or condition that was applied incorrectly or that guarantees approval of the VEP. In the absence of an existing term or condition of employment that has been allegedly breached, the PSGB is without jurisdiction to consider the merits of this case.

Complainants’ Submissions

11The Complainants repeated the concerns they raised when the jurisdictional issue was initially considered in Tighe that the approval process was unfair, vague and lacking transparency. They were not provided any insight into the vague reasoning behind the denial of their applications and they were not provided with any information regarding the criteria or process for VEP approval.

12With respect to jurisdiction, the Complainants state that “similar grievances of this nature have, in fact, recently been heard and benefited the Complainant. Details remain under a “gag order” lending support to the lack of transparency and unfair process in place.”

Analysis

13The PGSB has clearly defined jurisdictional limits and can only hear the full merits of a complaint in the specific circumstances spelled out by the legislature. In this case, section 4. (1) of Regulation 378/07 under the Public Service of Ontario Act permits a public servant “who is aggrieved about a working condition or about a term of his or her employment” to file a complaint with the Board. There are other circumstances where employees can file a complaint, such as when they have been dismissed or disciplined, however, they do not apply here. In order to proceed, I must be satisfied that the complaints allege a breach of a working condition or term of employment; if not, the Board has no authority to issue a decision on the merits or grant a remedy.

14In Tighe, supra, I found that the Board does not have jurisdiction to hear complaints about the Employer’s denial of VEP, except on the narrow basis that the denial was in contravention of the Ontario Human Rights Code or some other legislation. I concluded that:

a. The Employer did not introduce a legally enforceable term or condition of employment into the complainant’s existing contract when it communicated the possibility of an early exit from the OPS under the VEP.

b. The Employer’s pre-contractual representation was not a legally enforceable commitment.

c. The Employer did not introduce a policy or directive that bound them to a specific process by which the VEP would be decided or communicated.

d. Even if the VEP was a policy over which the Board had jurisdiction, the complainant had not identified any specific breaches of the policy or ways in which the Employer failed to honour commitments made to them in that policy. Nor was there any other established policy or practice, statute or regulation that codified the elements of the VEP that the complainant alleged had been improperly applied.

e. While the Board has jurisdiction to review existing terms or conditions of employment, in keeping with a long line of cases, it does not have jurisdiction over prospective terms or conditions. This conclusion was consistent with the Board’s limited remedial authority. The PSGB cannot create a new term or condition of employment, including those that alter compensation or eliminate positions.

15The Employer relies on the decision in Tighe to support its motion that the current complaints are beyond the Board’s jurisdiction and should therefore be dismissed. The Complainants’ submissions largely focused on the merits of their complaint. They limited their submissions on the jurisdictional question to an assertion that there are other cases where similar complainants were heard. They did not identify the cases and stated that they could not do so because of a “gag order”.

16Despite the Complainants assertions, the award in Tighe remains the only case that has been decided by the PSGB on this issue. The Complainants mention that there have been other complaints with a different outcome. They have not identified the other complaints and the reference to a ‘gag order’ suggests that the different outcome was the result of a mediated resolution. While I understand that this would be disheartening for the complainants, there is no way of knowing what was agreed or in what circumstances. It certainly does not provide a basis for me to reconsider my earlier conclusion that the Board does not have jurisdiction to entertain these complaints.

17When I considered the identical preliminary objection in Tighe, the Complainants were afforded an opportunity to make submissions precisely because that decision would potentially affect their rights going forward. Having considered their further submissions now, I am not persuaded that there is any basis to arrive at a different conclusion regarding the Board’s jurisdiction to hear complaints about the Employer’s refusal to grant a request for VEP. As previously held, these complaints do not raise an alleged violation of a term or condition of employment and the Board does not have jurisdiction to hear them.

18The Employer’s preliminary motion is allowed and the Complaints are dismissed.