PSGB# P-2019-1111

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Laforest

Complainant

• and -

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

Employer

BEFORE

Kathleen G. O’Neil

Chair

FOR THE COMPLAINANT FOR THE EMPLOYER

Mario Laforest Ann Fowler

Treasury Board Secretariat Employee Relations Advisor

HEARING SUBMISSIONS

December 3, 2020 (by teleconference) Written submissions completed December 10, 2020

Decision

1This decision deals with a complaint filed by Operational Manager Mario Laforest, claiming that his terms and conditions of employment related to overtime were breached on an occasion where the employer decided not to fill an overtime shift. The employer’s position is that there has been no breach of any term or condition of the complainant’s employment, and thus the complaint should be dismissed.

Factual and Procedural Overview

2On the morning of the hearing set for this matter, the Board received an email indicating that Mr. Laforest was experiencing technical difficulties being able to access the teleconference, which had been scheduled in that mode on consent of both parties. He indicated that he would like the matter to proceed in his absence and allow for the facts presented to stand on their own merit. In that email, he provided comments on documents that the employer representative had provided in advance of the hearing as evidence the employer was intending to rely on. In coming to the decision below, the Board has considered those written submissions together with post-hearing written submissions, the oral submissions made by the employer, Mr. Laforest’s written complaint and the documents submitted by the employer, including its Form 2 response.

3There was no dispute about the basic facts underlying this complaint. On May 21, 2019 at 8:21 a.m., Mr. Laforest was called with an offer of a twelve-hour overtime shift for the overnight shift beginning on the same day, and ending on the following date, May 22. He did not return the call at any time prior to the start of the shift. He had worked a twelve-hour overtime shift ending at 6 a.m. on May 21, so may have been sleeping when the call came in. No one else answered a call either, and the employer’s response to the situation was to run the shift with one less manager than usual. As a result, no one worked the overtime shift which Mr. Laforest was offered, and for which he is claiming compensation.

The Parties’ Positions

4Mr. Laforest’s current complaint is based on his assertion that he was entitled to a second phone call, and a secondary offer of overtime, according to the rules established in the overtime distribution system called HPRO, wherever there is a partial or full shift available. Although that system was initially designed for bargaining unit correctional officers, Mr. Laforest asserts that it has been applied to managers for some time and is therefore a term and condition of his employment. The secondary offer of overtime that he claims he also should have been offered was an opportunity to work an 8-hour shift from 2200 hours to 600 hours starting on May 21 and ending on May 22.

5The employer’s position is that, although Mr. Laforest would have been assigned the shift if he had called at any time prior to the start of the shift, it was within its rights to decide not to fill the vacancy when no one called back. In essence, there was no overtime shift given to anyone that night, so there can be no finding that someone worked the shift when Mr. Laforest was in line for it, in the employer’s view. The employer submits that Mr. Laforest would need to show why the shift needed to be filled, and since he has not provided documentation or evidence that would show that to be the case, the complaint should be dismissed.

6Mr. Laforest also did not provide any explanation in his submissions for why he never replied to the phone message offering the shift, other than that he was likely asleep when it first came in.

7Both parties referred to a decision of the Board in respect of an earlier complaint from Mr. Laforest about overtime opportunities reported as Laforest v. Ontario (Community Safety and Correctional Services), 2009 CanLII 66349 (ON PSGB). The employer refers to the portion of the decision dealing with unfilled shifts, noting that the grievances were dismissed where the shift remained unfilled and there was no evidence that a manager worked overtime.

8For his part, Mr. Laforest refers to the previous decision as demonstrating that being bypassed for overtime opportunities has been a problem for many years, and that the overtime protocol should be considered a term and condition of his employment, since the employer expects everyone to adhere to it.

9Specific to the current complaint, Mr. Laforest maintains that past practice and employer expectation in the process of following the HPRO Overtime protocol is that two calls are made, the first being for coverage for the full shift and the second offer is for any partial hours of the shift in excess of 4 hours, and that this was not done in his case.

10In the submissions that Mr. Laforest forwarded on the morning of the hearing, he asserted that the employer had not implemented the remedies flowing from the earlier complaint dated April 1, 2009, which resulted in the decision cited above. He asked for monetary compensation in respect of the older grievance, stating that he believed the employer continued to act in bad faith. As that was not a submission the employer could have anticipated from the current complaint, the Board asked for written submissions from the employer on that point and Mr. Laforest was given an opportunity to reply.

11The employer’s position in response to Mr. Laforest’s suggestion that the 2009 decision was not implemented is that the decision was fully complied with and thus Mr. Laforest’s allegations are unfounded, as well as being an expansion of the scope of his current complaint. Furthermore, the employer submits that since the prior decision is 11 years old and Mr. Laforest is an experienced complainant at the PSGB, it is reasonable to conclude that if there had been non-compliance, he would have raised this concern earlier.

12In any case, the employer submitted that if there were concerns with the implementation of the 2009 decision, the appropriate process to be followed would be to pursue his allegations of non-compliance in the context of the earlier complaint, rather than raising it with the current complaint. The employer reserved its right to raise and rely on any and all preliminary objections that may apply if he pursued that route, including timeliness, delay and waiver.

13By contrast, Mr. Laforest asserts that it is unfair of the employer to suggest that it is reasonable to conclude that had there been non-compliance with the 2009 decision, he would not have waited 11 years to voice his concern. Rather, Mr. Laforest notes that he pursued his career as an Operational Manager and applied his focus on his endeavors at a number of institutions, and that the employer was aware of the errors indicated by the PSGB in the prior decision.

Considerations and Conclusions

14The main issue to be determined is whether any term or condition of Mr. Laforest’s employment were breached when he was not called a second time or offered a secondary opportunity to work overtime on May 21, 2019. Although the HPRO protocol was not in evidence, I will assume for the purposes of this decision that the overtime distribution protocol is a term and condition of his employment, and that it provided what Mr. Laforest asserts that it did, as the employer did not directly take issue with that assertion at the hearing of this matter.

15In order to succeed in this complaint, Mr. Laforest would have to show that the overtime protocol was not followed, and that he suffered some damage as a result. In overtime complaints, the damage is usually that someone else worked the overtime that would have rightfully belonged to the complainant if the process had been followed. That is the crucial piece missing here; although an overtime shift was offered, no one accepted it, and no one worked it. There is no evidence before me that overtime was worked by someone else on the night of May 21 when it was Mr. Laforest’s turn to work it. Much like the case from 2009, there is no evidence that the employer was obliged to fill the shift with overtime. More specific to the facts of the current complaint, there is also no evidence which would permit me to conclude that the employer was required to fill it at all. Although the facts of the situation in 2009 were somewhat different, the following portion of the decision cited above, at paragraph 26, still applies:

It is common ground that the Operational Manager running a shift, or doing the scheduling for another shift, has a significant amount of discretion in how to staff a shift to get the necessary work done. There is nothing in the material before me sufficient to find that the unfilled shifts were required to be filled with overtime, so that the grievances are dismissed in regards to claims for unfilled shifts or partial shifts on which no manager worked overtime.

16In this case, Mr. Laforest has not established that it is a term and condition of his employment that, even if no one responds to calls offering an overtime shift, that the employer is required to continue to offer that shift, or part of it. I have no basis on the material before me to find that the employer breached any term or condition of Mr. Laforest’s employment when it was decided that the institution could run without filling the offered overtime shift. Accordingly, I find that Mr. Laforest has not established that he is owed anything from the employer in respect of the shift on May 21, 2019.

17For the above noted reasons, the complaint in respect of the overtime shift of May 21, 2019 is dismissed.

18As for the allegations concerning the implementation of the 2009 decision cited above, I agree with the employer that this is an expansion of the case beyond what could reasonably be inferred was in dispute from the complaint filed in 2019. Further, 11 years is too long to wait to bring forward an allegation that a previous decision was not complied with. After a much shorter time that that, the employer would be reasonably entitled to conclude that there were no further issues in respect of that case. Accordingly, the complainant is not entitled to anything in respect of his allegations in respect of the 2009 decision.

19In summary, for the reasons provided above, the complaint is dismissed.