PSGB# P-2023-00152; P-2023-00168; P-2023-00189; P-2023-00214 P-2023-00240; P-2023-00241; P-2023-00346; P-2023-00432 P-2023-00817; P-2023-01044

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Kurczak et al

Complainant

• and -

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

Employer

BEFORE

Thomas Kuttner, KC

Vice Chair

FOR THE COMPLAINANT

Chris Clysdale et al

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

SUBMISSIONS

July 7, August 11 and August 18, 2023

Decision

Introduction

1These are ten (10) Complaints filed before the Board 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”). As they raise a common complaint — non-payment by the Employer of compensation for the performance of Mandatory Rapid Antigen Testing (RAT) outside of scheduled working hours and outside of the workplace — the Board consolidated them for processing, hearing and determination.

Background

2The Complainants are primarily Sergeants (Operational Manager 1) and as such are Schedule 5 Employees under the Employer’s Compensation Directive. On February 18, 2022, the Institutional Services Division of the Ministry of the Solicitor General initiated a mandatory RAT initiative requiring all staff at adult correctional facilities and youth justice facilities, including Sergeants, to undergo RAT every forty-eight (48) hours outside of the workplace and on their own time. The mandatory RAT initiative was fully concluded on May 1, 2023.

3On October 26, 2022, the Grievance Settlement Board issued a Decision in Ontario Public Service Employees Union v Ontario (Solicitor General)¹ in which Arbitrator McLean held inter alia:

[24] The applicable test for determining whether a required activity constitutes work is set out in the cases referred to by the union which are cited above: “Generally speaking, where an employer makes a claim on an employee’s time, the employee is entitled to compensation”. There is no question that the employer has made such a claim on the employees’ time in these circumstances where the employer insists that an employee must self-administer a medical test and fill out an electronic form within a specified timeframe and there is often no practical way for that test to be completed during working hours.

4On January 27, 2023, OPSEU and the Province, represented by the Treasury Board Secretariat, entered into Minutes of Settlement (MOS) implementing that Decision, pursuant to which the parties agreed that from January 24, 2022 to March 31, 2023:

For each week the employee has completed at least one rapid test, reported the result to the Employer, and attended the workplace for at least one shift, the employee will be compensated with a single payment of 30 minutes (0.5 hours) at the overtime rate. For clarity, the employee will receive a total of 30 minutes (0.5 hours) per week, irrespective of the total number of antigen tests and reported results conducted during the week.

5The MOS affected employees at adult correctional facilities and youth justice facilities, including Correctional Officers, but not managerial employees who supervise them including the Complainant Sergeants. These now seek to be compensated for RAT they have undergone using the same MOS formula, commencing from the initial implementation of the RAT initiative in February 2022. The first of the ten Complaints was submitted to the Deputy Minister on March 23, 2023.

6The Employer, of its own initiative, confirms that they will be issuing overtime payments for RAT completed by Schedule 5 managers retroactive to the week of March 6, 2023 up to and including April 30, 2023. The payment will mirror that of the MOS and amount to 30 minutes at the overtime rate for each week that the complainant was in attendance and submitted at least one RAT. This decision has been communicated to excluded Schedule 5 managers, including the Complainant Sergeants.

The Employer’s Preliminary Timeliness Objection

Employer’s Submissions

7The Employer submits that the Complaints should be dismissed, because the Complainants did not comply with mandatory statutory timelines and notice requirements. Therefore, the Board does not have jurisdiction to consider the Complaints prior to the period which has already been compensated for.

8Per subsection 8(4) of the Regulation, notice of a complaint about a working condition or a term of employment must be given within 14 days after the complainant becomes aware of the term of employment giving rise to the complaint. As such, the complainant is not entitled to any remedy for any timeframe greater than 14 days prior to the notice.

9Pursuant to subsection 8(4)3 of the Regulation, the Complainants were 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 Complaints. This working condition is the requirement to complete RAT prior to attending work; it is not becoming aware of compensation provided to OPSEU staff pursuant to the same RAT policy.

10While the Board has recently stated that on its face subsection 8(4)3 of the Regulation is somewhat ambiguous, the Board has been clear that the time limits under section 8 of the Regulation start to run once a Complainant “becomes aware of the circumstances giving rise to the Complaint”.

11To comply with the Regulation and have compensation back to February 18, 2022, a Complainant was required to provide notice to the Deputy Minister within the prescribed 14 days, which would have been March 4, 2022. In these circumstances, the Board has consistently stated that it does not have jurisdiction to bypass the mandatory requirements of sections 8 and 9 of the Regulation. Accordingly, when a Complainant fails to comply with these timelines, the Complaint must be dismissed.

12Unlike the Ontario Human Rights Tribunal, the Board does not have statutory authority to extend time limits as permitted by the Human Rights Code². Accordingly, the Board has no similar statutory power to consider a Complainant’s explanations for failing to comply with the timelines and notice requirements of the Act.

13Given the foregoing, the Complaints were filed out of time and as the Board has no jurisdiction to relieve against the mandatory time limit, the Employer requests that the Board dismiss these Complaints.

14In support, Counsel referenced the following cases of the Board: Taylor v The Crown in Right of Ontario (MCSCS), PSGB No. P-2016-2281; Ashdown et al v The Crown in Right of Ontario (MCSCS), PSGB No. P-2016-0603; Hasted/Berezowsky and the Crown in Right of Ontario (MCSCS), PSGB No. P-2014-2665; Laforest v The Crown in Right of Ontario (SOLGEN), PSGB No. P-2018-3801; and, Muldoon v The Crown in Right of Ontario (MCSCS), 2011 CanLII 83724 (ON PSGB).

Complainants’ Submissions

15The Complainants submit that the Board has the ability to determine when the Complainants became aware of the Employer’s violation of the terms and conditions of employment and should reject the Employer’s canned position that timelines were violated. The Complainants respect that the Board is bound by Statute to reject a grievance that is in violation of the Act if it determines that timelines as per section 8 of the Regulation have not been adhered to.

16The Complainants submit that the Employer has failed to provide a valid argument that the timelines have been violated and has provided several precedents that are only vaguely associated with the merits of the Complainants’ grievances. The Board should reject the use of the precedents supplied by the Employer.

17The Complainants submit that they only became reasonably aware of the wrongdoing inflicted by the Employer in or around the beginning of March 2023. Therefore, the timeline should begin at that point. The Complainants may have thought that the Employer will act in a consistent manner and refuse to treat them in a fair and equitable manner dating from February 2022. But it was not until the Decision was made publicly available that the Complainants knew that they were being treated differently and have been wronged as per the terms and conditions of employment.

18The legally common definition of the word “reasonable” is a set of facts or circumstances that cause 12 normally cautious and prudent persons to come to a similar conclusion. The Complainants assert that it is not reasonable to expect that the employees were mistreated starting in February 2022 and should have filed a grievance in March 2022 and every 14 days thereafter as the Employer submits.

19It was not until the Grievance Settlement Board issued a Decision that determined that the Employer violated the terms and conditions of the Union represented employees and agreed to compensate them appropriately. The Complainants submit that the Board is obligated to consider with the widest possible discretion the term “became aware”.

20The Employer has made its preliminary objection and has failed, in the assertion of the Complainants, to present an argument with merit that would be applicable to these Complaints.

21The Complainants submit that they have not been made whole by the resolution of partial payment for the period of March 6 to May 1, 2023, in that the Employer has failed to provide compensation for the entirety of the period where it demanded that work be completed outside the institution and on the employees’ own time.

22The Complainants request that the Board find the preliminary objection of the Employer to be unfounded and allow these Complaints to go to arbitration or another resolution process. The Complainants made reference to Ashdown supra in support. They rejected the applicability to their circumstances of the other cases cited by the Board.

Employer Reply Submissions

23The Complainants certainly knew that they were doing RAT at home in February and March 2022, and receiving no compensation for it, with no suggestion that they would one day be compensated for it. There is no evidence of what came about in March 2023 that they didn’t have in either February 2022 or October 2022, when the OPSEU – GSB decision came out, that prompted them to file Complaints in March and April 2023.

24The Complaints or subsequent submissions do not indicate any event occurring in March 2023 that would have caused them to come into knowledge of a breach to trigger the 14-day timeline to file a Complaint under the Act, and certainly not an event which could allow for a remedy back to early 2022.

25Accordingly, all we know is that they filed their Complaints, and the Employer in good faith, backdated 14 days to compensate them from that date forward. On this basis, the decision in Hasted/Berezowsky supra is on all fours with this scenario. The clock starts to tick when a Complainant comes into the knowledge of a breach or a change of their terms and conditions of employment. Since that did not happen when RAT started, it makes sense that it starts from the date the first Complaint was filed.

Analysis and Decision

26At issue here is the determination of the time when the Complainants became aware of the working condition or term of employment giving rise to the Complaints. The parties agree that the working condition or term of employment at the heart of their dispute was non-payment by the Employer of compensation for the performance of Mandatory Rapid Antigen Testing (RAT) outside of scheduled working hours and outside of the workplace.

27The Employer submits that the Complainants became aware of the RAT initiative upon its implementation on February 18, 2022. The Complainants concede that the implementation of the unpaid RAT initiative was in February 2022. But their submission is that they only became aware of their entitlement to compensation for their mandatory RAT participation in March 2023, when i] the arbitral Decision of the Grievance Settlement Board in OPSEU v Ontario (Solicitor General) supra; and ii] its implementation by the parties thereto by way of the MOS dated January 27, 2023, became known to the public.

28A close reading of the relevant provisions of the Regulation on Filing a Complaint, in light of the Board’s jurisprudence, will determine the outcome of this issue. These are as follows:

8. (1) A person who proposes to file a complaint shall give notice of the proposal to the following person or entity:

9. A complainant who, at the material time, worked in a ministry shall give the notice to his or her deputy minister.

4. The notice must be given within the following period:

3. For a complaint about a working condition or a term of employment, within 14 days after the complainant becomes aware of the working condition or term of employment giving rise to the complaint.

29There is no doubt that, the 14-day time limit in subsection 8(4)3 to file a notice of proposal to the Deputy Minister of an intention to file a complaint with the Board, is mandatory. Failure to comply with it deprives the Board of jurisdiction to entertain the complaint. In Barnes v Ontario (MCSCS)³, the Board wrote:

The Board has previously determined that this 14-day time limit for providing a Notice of Proposal to file a complaint is mandatory and that the Board has no discretion to relieve against the time limit. A failure to adhere to the time limit deprives the Board of jurisdiction to entertain the complaint. See the Board’s decision in St. Amant v Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 4673 (ON PSGB) and paragraph 28 of Bourgeault v Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 84294 (ON PSGB). (Nairn, at para. 8).

See as well, the decision of the Board in Muldoon supra, and more recently, to the same effect, its decision in Thomas v Ontario (Solicitor General)⁴.

30The Complainants would have the Board determine that the event which kick-started the 14-day time period stipulated at subsection 8(4)3 of the Regulation should be the time at which they became aware that the employees whom they supervise were entitled to compensation dating back to when the mandatory RAT initiative was implemented.

31But awareness of the time at which the Employer took remedial action to so compensate the staff employees in the bargaining unit represented by OPSEU, is not the appropriate time from which to calculate the 14-day period stipulated at subsection 8(4)3 of the Regulation.

32Rather, the working condition or term of employment from which to calculate the 14-day period of subsection 8(4)3 was the implementation of the mandatory RAT initiative in February 2022. Of this, the Complainants were acutely aware at or about the date of its implementation.

33As the Employer has submitted, the within case is on all fours with that of Hasted/Berezowsky. There, the complaint concerned the Employer’s failure to compensate the complainants for on-call duties performed when the complainants were assigned to Acting Deputy Superintendent duties at the Toronto Intermittent Centre. As here, the complainants only became aware of this Employer failing, many months after the on-call program had taken effect. The complainants sought to calculate the 14-day period for giving Notice of Intent to file grievances from that later date. The Board rejected the submission and wrote:

The complainants argue that this is what happened; they filed their complaint within 14 days of learning of the alleged breach of the working condition or term of employment. I disagree. The complainants were scheduled for on call duties throughout their acting assignment without complaint. To suggest that one can accept identified terms of employment without challenge, only to have an opportunity to challenge them long after those terms are no longer applicable as a result of a change in assignment, is to put the employer in an untenable position and alleviates the employee of any responsibility to ensure that they are being compensated appropriately. It also renders meaningless the short and mandatory time limits set by the Regulation in clear contradiction to its intended purpose of bringing issues to the attention of the employer at the earliest, failing which the Board is rendered powerless to deal with the issue. (Nairn, at para 23).

34Similarly here, the Complainants had accepted the mandatory RAT initiative without challenge in February 2022, and are seeking, long after, compensation for their participation in that initiative. The short and mandatory time limit set by subsection 8(4)3 of the Regulation for the giving of Notice of Intent to file a Complaint has not been complied with, and the Board is without jurisdiction to entertain these Complaints.

35The preliminary objection of the Employer is sustained. Accordingly, these Complaints are dismissed.

Footnotes

1. 12022 CanLII 106485 (ON GSB).
2. 2RSO 1990, c. H.19 at ss 34(2).
3. 32017 CanLII 25427 (ON PSGB).
4. 42022 CanLII 31381 (ON PSGB).