PSGB# P-2020-1180

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Bazger

Complainant

• and -

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

Employer

BEFORE

Thomas Kuttner, QC

Vice-Chair

FOR THE COMPLAINANT FOR THE EMPLOYER

Hamza Bazger Maria-Kristina Ascenzi

Treasury Board Secretariat Legal Services Branch Counsel

HEARING

Written submissions completed March 5, 2021

Decision

1This is a complaint filed 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 which the Complainant, Hamza Bazger, a Sergeant at the Toronto South Detention Centre (“TSDC"), alleges that the Employer violated the Provincial Overtime Protocol on March 1, 2020, by failing to schedule him for an overtime shift on that date, and contacting and hiring another Sergeant in his stead. By way of relief, Mr. Bazger in his Form 1 Application seeks twelve (12) hours of paid overtime and formal training in overtime allocation for the manager who assigned overtime on March 1, 2020 in violation of the Protocol.

Background

2The parties met in a mediation session held before me on February 5, 2021 but were unable to resolve their dispute. At that time, the Employer indicated 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 submissions on the preliminary objection according to an agreed schedule: the Employer to file its Preliminary Objection on March 5, 2021; Mr. Bazger his Reply to the Preliminary Objection on March 19, 2021; and the Employer its Sur-Reply on April 5, 2021.

3However, Mr. Bazger failed to file a Reply, although given an extended opportunity to do so. 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. Accordingly, 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 the 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.

4As a Sergeant, Mr. Bazger is an operational manager – his classification under the Management Compensation Directive (“the MCD”) is that of a Schedule 5 employee (Employer’s Book of Documents (“EBD”), tab 2, p.121). Directly under his authority are Correctional Officers who are employees for the purposes of the Crown Employees Bargaining Act, 1993, SO 1993, c.38., and bargaining unit members. The Provincial Overtime Protocol for the Ministry of Community Safety and Correctional Services (“the Protocol”), to which the Complainant made reference in his Form 1 Application, (also found in EBD, tab 1) stipulates at page one that “As per the Collective Agreement (Article COR8), a local overtime distribution system must distribute overtime fairly and equitably” and that the intent of the Protocol is to “distribute overtime in a fair, equitable and consistent manner”.

5In point of fact, as the Employer pointed out in its submissions, it is its practice to apply the Protocol to operational managers so as to maintain a consistent scheme of distribution for overtime at correctional institutions, but it maintains that there is no contractual, or legal obligation that it do so. Rather, provisions for the payment of overtime for managerial employees is found in the Management Compensation Directive (“the MCD”) issued by the Management Board of Cabinet under its general authorization, pursuant to subsections 33(3) and (4) of the Act, to issue directives determining benefits, other remuneration and terms and conditions of employment for public servants. (EBD tab 2, at p. 4). The MCD provides for the payment of overtime when worked, but does not provide for entitlement to overtime hours in any particular circumstance, as does the Protocol. (EBD tab 2, at pp. 18-21).

Submissions

6For the Employer, Ms. Ascenzi submitted that “There is no statute, regulation, policy or directive which would support a claim that overtime is a working term and condition of the Complainant’s employment.” (at para 16). Subsection 4(1) of the Regulation stipulates that “a public servant who is aggrieved about a working condition or about a term of his or her employment” may file a complaint with the Board. To succeed a Complainant must establish i) that there is an existing term or condition of employment; ii) that there is a breach of that term or condition of employment; and iii) that there is a link between the breach and the remedy sought.

7The Board has no authority to set new terms of employment or give opinions as to whether they are fair. It does not have the authority to review or set the terms and conditions of a manager’s employment. So long as the Employer has not acted in a manner which was discriminatory, arbitrary or in bad faith, the Board has no authority to question the exercise of managerial discretion. The Board may dismiss a complaint, where the Complainant, as here, has failed to establish a prima facie case, even assuming the facts stated in the complaint to be true.

8In support, counsel referred to the following cases: Hugh MacDonald et al v Ontario (Community Safety and Correctional Services), 2014 CanLII 76836 (ON PSGB); Laird v Ontario (Community Safety and Correctional Services), 2009 CanLII 43638 (ON PSGB); Ransome v Ontario (Health and Long-Term Care), 2006 CanLII 42782 (ON PSGB); Beauchamp v Ontario (Solicitor General), 2020 CanLII 97315 (ON PSGB).

9Mr Bazger made no submissions on the Employer’s Preliminary Objection.

Decision

10The Board’s jurisdiction is rooted in subsection 4(1) of the Regulation which stipulates in relevant part:

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 the term of employment with the Public Service Grievance Board.

As the Board has noted in the Laird case supra, “Since the Kanga case, supra, [Kanga v. The Crown in Right of Ontario (Ministry of Health) (1986) CanLII 95 (ON PSGB)] the board has held consistently that these words must be given a broad and liberal interpretation.” This accords with the provisions of the Legislation Act, 2006, 2006 SO c.21 Sch F which stipulate at section 64:

64(1) ) An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.

64(2) ) Subsection (1) also applies to a regulation, in the context of the Act under which it is made and to the extent that the regulation is consistent with that Act.

11That being said, 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. In the Ransome case supra the Board was considering the Employer’s Pay on Assignment policy on promotion in a claim for relief where the complainant was being paid at a salary rate lower than that of employees promoted after him. There, Vice-Chair O’Neil (as she then was) made the following observations which are equally applicable in the case before me:

This is a complaint about the absence of a term or condition of employment of the kind he would like, rather than a request to remedy a breach of an identifiable existing term or condition of his employment. The facts before me simply do not form a sufficient basis for such an argument to succeed. What the grievor is claiming would be tantamount to creating a term or condition of employment, rather than awarding a remedy for the breach of an existing term or condition of employment.

As with many cases that come before the Board, several of which are cited above, the grievor’s dissatisfaction with the situation is very understandable. However, the employer is entitled to set the terms of employment for managers in light of its estimation of what is required to retain sufficient competent staff, and the Board is not entitled to “remedy” a situation unless it finds a breach of an established term or condition or employment, or a sufficient basis to conclude that the employer conduct is arbitrary, in bad faith, or discriminatory in the sense of based on some illegal ground.

14In the Hugh MacDonald case supra, Vice-Chair O’Neil (as she then was) commented in general:

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.)

The complaint made here, founders on the first of these requirements: there is no existing term or condition of employment related to the facts complained of that is part of Mr. Bazger’s contract of employment.

15Rule 11 of the Board’s Rules addresses the situations where the Board may dismiss a complaint without a hearing or consultation:

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

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.

17This complaint is dismissed.