PSGB# P-2022-11825

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Sanders

Complainant

• and -

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

Employer

BEFORE

Brian Smeenk

Chair

FOR THE COMPLAINANT

Noel Sanders

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel

HEARING WRITTEN SUBMISSIONS:

July 6, 2023; Employer: May 11, 2023 Complainant: None

Decision

1The Complainant, Noel Sanders, is employed as a Sergeant at the Central East Correctional Centre (“CECC”) of the Ministry of the Solicitor General (“the Employer” or “the Ministry”). In this application under The Public Service of Ontario Act, 2006, S.O. 2006, c.35, Sched. A (“PSOA”), he challenges his treatment in relation to the Ministry’s restructuring of certain classifications, including the Sergeant position, announced November 2, 2022.

2This application was originally scheduled to be heard together with two related applications in PSGB # P2022-11297 and #P2022-11458. The Employer made the identical preliminary objection regarding the Board’s jurisdiction to hear all three applications. The parties were directed to make written submissions regarding the preliminary objections, followed by a short hearing. Prior to the hearing, the other two applications were withdrawn, leaving only that of Mr. Sanders. This decision thus deals with the Employer’s preliminary objection to Mr. Sanders’ application.

Background

3The following facts were agreed to by the parties.

4On May 5, 2022, the Ministry announced an organizational review of supervisory and management functions in correctional institutions. At the time the review was initiated, the structure consisted of 572 Sergeants and 48 Staff Sergeants totaling 620 positions.

5The announcement referenced the February 24, 2022, Grievance Settlement Board (“GSB”) decision in Association of Management, Administrative and Professional Crown Employees of Ontario (Association) v Ontario (Solicitor General), 2022 CanLII 31316 (ON GSB). In that decision, Arbitrator McLean found that the Association of Management, Administrative and Professional Crown Employees of Ontario (“AMAPCEO”) had relinquished their bargaining rights for the Sergeant and Staff Sergeant cadre. He further ruled that the Ontario Public Service Employees’ Union (“OPSEU”) holds the bargaining rights for the group, should it be determined that the positions are incorrectly excluded from union bargaining units. Arbitrator McLean referred the matter back to the Employer and OPSEU to jointly address.

6Sergeants are classified at the M07 level and are schedule 5 employees under the Management Board of Cabinet (“MBC”) Compensation Directive. Effective April 1, 2023, the salary range for the M07 classification is $64,468 - $97,599.

7Staff Sergeants are classified at the M08 level and are schedule 5 employees under the Compensation Directive. Effective April 1, 2023, the salary range for the M08 classification is $68,671 – $107,149.

8On November 2, 2022, the Ministry announced the result of the organizational review and advised staff of a restructuring of the management level, introducing a supervisory level to the structure within the Institutional Services Division of the Ministry.

9The Employer received MBC approval to create a new classification within the OPSEU bargaining unit called Correctional Supervisor. The salary range for this position parallels the range for the previous M07.

10The November 2, 2022, communication made it clear to all impacted staff that there would be no involuntary job loss as a result of the restructuring.

11Beginning November 8, 2022, up to and including January 17, 2023, senior leadership toured all institutions to share key messaging regarding the upcoming restructuring and answer questions from the field (one was held at CECC; the full schedule of meetings is omitted here).

12An extensive set of Q&As was developed and updated based on questions that came in from the field.

13On December 14, 2022, the Ministry announced that the revised structure would continue to have 620 positions, broken down as 438 Staff Sergeants and 182 Correctional Supervisor positions. Each Superintendent received their institution’s allocations which they were able to share with the impacted Sergeants.

14CECC was allocated 33 Staff Sergeants and 25 Correctional Supervisors, for a total of 58 Full Time Equivalents.

15On December 29, 2022, Mr. Sanders contacted the Deputy Solicitor General (“DSG”) and provided his notice of intent to file a complaint under the PSOA.

16By way of letters dated January 30, 2023, Mr. Sanders and other Sergeants were given a choice to compete for and be considered for a promotion to the Staff Sergeant position, which is a higher classification of M08 with a higher salary range, or to remain in his Sergeant position and be reclassified into the Correctional Supervisor role, an OPSEU-represented position. He also had the option to resign or retire from the Ontario Public Service.

17Election packages included a cover page, personalized letter, two (2) extensive Q&A documents, updated Staff Sergeant job description, new Correctional Supervisor job description and a brochure for the Employee Family and Assistance Program (EFAP).

18Responses to the election letters were due to the Employee Transition Unit by 4:30pm on February 28, 2023.

19Mr. Sanders, in his response dated February 27, 2023, elected Option 2 – to be considered for a promotional opportunity as a Staff Sergeant. Mr. Sanders included the following notation:

“NB- Signed under duress on Feb 27, 2023 at 1400 hours. I disagree with restructuring as has been proposed. I have a GSB grievance mtg with others on Mar 07, 2023 + I feel this is inappropriate to sign without reservation”.

20Following a review of the aggregate responses received at CECC, it was determined that a competition for those who elected to be considered for Staff Sergeant would not be required. As a result, Mr. Sanders received a letter dated March 6, 2023, advising him that he would be directly assigned to a Staff Sergeant position.

The Complaint

21In the particulars of his application, Mr. Sanders states that on December 23, 2022 he was advised by the Ontario Pension Board that, if he were to return to OPSEU in the newly-created Correctional Supervisor position, he would need to pay approximately $11,000 to the OPSEU Pension Plan. He further states that in 2015, when he left the OPSEU Pension Plan to become a Youth Services Manager, he did not receive any financial compensation, but now he must pay if he were to return to that Plan. This does not appear to be fair and equitable, he states.

22By way of remedy, Mr. Sanders states in part:

I understand that I could not be called an Operational Manager and be part of the Union. I do not understand why I am effectively being demoted with a lesser job title of Correctional Supervisor. I have been a Sergeant since the summer of 2017 and I wish to maintain that title, a title that aligns with other established hierarchical positions and follow precedent.

The Preliminary Objection

23The Employer submits that at its root this complaint arises as a result of a re-classification of Mr. Sanders’ home position. Ontario Regulation 378/07 (“the Regulation”) sets out what types of matters the Board can accept. Section 4(2) precludes complaints about, “the assignment of the public servant to a particular class of position.”

24It is submitted that the Board has held many times and it is well established law that this clause restricts the Board’s jurisdiction over complaints about the classification and/or re-classification of a position in the Ontario Public Service. The Employer cites Johnston et al v. Ontario (Ministry of Community and Social Services), 2019 CanLII 65197 (ON PSGB) (“Johnston”).

25The Employer submits that Mr. Sanders is clearly complaining about the assignment to a certain classification. There is no existing term and condition of employment concerning his current M07 classification being complained about. He will hold the promotional position of Staff Sergeant and accordingly the Board cannot hear complaints about that, in accordance with the well-established jurisprudence set out in the Johnston decision.

26Further, the Employer submits that Mr. Sanders has not made any complaint about the terms and conditions of his prospective Staff Sergeant position (which he elected to accept). The complaint filed by Mr. Sanders is thus both moot and does not set out a prima facie case regarding any breach by the Employer of an existing term or condition of employment. It should be dismissed on that basis.

27Mr. Sanders did not file any written submissions regarding the Employer’s preliminary objection. Nor did he appear at the hearing of July 6, 2023. He did, however, confirm with the Board’s Registrar following that hearing that he did not intend to withdraw his application.

The Applicable Legal Framework

28The Board’s Rules and Practice Notes allow consideration of motions such as the one brought by the Employer in this case. Rule 15 provides as follows:

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.

29The Regulation describes and limits the subject matter of complaints that an eligible public servant may bring before the Board. In addition to discipline and dismissal matters, section 4 of the Regulation describes the complaints about working conditions or terms of employment that the Board may consider:

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

(2) The following matters cannot be the subject of a complaint about a working condition or about a term of employment:

1. The term or duration of the public servant’s appointment to employment by the Crown.

2. The assignment of the public servant to a particular class of position.

3. A dismissal without cause under subsection 38 (1) of the Act or a matter relating to such a dismissal.

4. The evaluation of a public servant’s performance or the method of evaluating his or her performance.

5. The compensation provided or denied to a public servant as a result of the evaluation of his or her performance

[emphasis added]

Analysis and Decision

30The primary issue before me is whether Mr. Sanders’ application makes out a case for the orders or remedies requested, even if all the facts stated in the complaint are assumed to be true and assuming that the Board has jurisdiction to consider his application.

31I agree with the Employer’s submission that there is no arguable case on the face of the application. The application does not make out a prima facie case for the remedies requested.

32In the application, Mr. Sanders does not allege any violation of his existing terms and conditions of employment, about which the Board might hear evidence and argument. Nor does he complain about being assigned to the Staff Sergeant position. Nor does he complain about a violation of terms and conditions of employment in the prospective Staff Sergeant position.

33While the Employer argues that the Board should not hear an application about the terms and conditions applicable to a new position into which a complainant is being assigned, I need not decide that issue here. Mr. Sanders has not complained about any such terms and conditions. Rather, he has complained about the terms and conditions that would have applied, had he elected to accept a transfer to the Correctional Supervisor classification.

34Such a transfer or reclassification to the Correctional Supervisor position did not and will not happen in this case.

35I note, parenthetically, that Mr. Sanders’ application was filed with the Board on February 7, 2023. That was before Mr. Sanders made his election on February 27, 2023 to accept the Staff Sergeant position. At the time of this application, therefore, it may be that Mr. Sanders was contemplating accepting reclassification to the Correctional Supervisor position. In any event, he did not do so.

36Mr. Sanders’ complaint, therefore, about the effect on him of moving into the OPSEU Pension Plan, had he accepted reclassification as a Correctional Supervisor, is moot. He simply did not make that election. Those circumstances have not and will not arise.

37Thus, in the absence of such an election, and in the absence of any actual allegations of a breach by the Employer of the terms and conditions of Mr. Sanders’ employment as a Sergeant, or those that will be in effect when he takes up the Staff Sergeant position, there is no allegation that, if proven, would warrant any remedy, assuming without deciding that this Board has jurisdiction to consider it.

38The application is therefore dismissed.