PSGB# P-2023-03029

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Green

Complainant

• and -

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

Employer

BEFORE

Henri Pallard

Vice Chair

FOR THE COMPLAINANT

Brian Green

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

SUBMISSIONS

April 22 and May 14, 2024

Decision

1Brian Green, the Complainant, alleges that he did not receive the five additional vacation days that he was promised once he was confirmed in the position of Staff Sergeant. The Ministry of the Solicitor General, the Employer, submits the five additional vacation days were the consequence of an error in classification. Moreover, it adds, the document upon which the Complainant relies was not a legal document; it was prepared for information purposes only. Consequently, the Complainant’s claim is unfounded.

Facts

2The Complainant held the home position of Sergeant at the Central East Correctional Centre. From 2 May 2022 to 7 January 2024, he had a temporary assignment to the position of Staff Sergeant. On 8 January 2024, his temporary assignment became permanent. On 1 April 2024, the Complainant accepted the position of Correctional Supervisor (Corporal) within the OPSEU bargaining unit.

3On 2 November 2022, the Employer announced a restructuring at the management level. The Complainant was advised by letter dated 30 January 2023 that the restructuring would affect his position of Sergeant. On that same day, the Complainant signed the letter accepting the position. At the same time, he received a Questions and Answers document (the January Q&A) created by the Total Compensation Strategy Branch at the Treasury Board Secretariat. However, that document erroneously stated that the Staff Sergeant position would receive an additional five days vacation. It also contained the following disclaimer in a footer on each page:

DISCLAIMER: This document is for information purposes only and is not a legal document. It does not amend, supplement or replace the terms set out in source authority documents governing specified employees’ compensation, benefits and PM working conditions.

Within a week the Employer noticed the error and in February it sent out a new Questions and Answers document (the February Q&A) reducing the vacation entitlement by five days. It also contained the identical disclaimer.

4The classification and compensation of Sergeants are found in the Management Board of Cabinet (MBC) Compensation Directive. Sergeants are classified at the M07 level and Staff Sergeants at the M08 level. They are both schedule 5 employees. The wage rates for the new position of Correctional Supervisor (Corporal) paralleled the range for the M07 level position. However, the January Q&A at question 16 provided for five more days of annual vacation than the February Q&A. According to the Employer, that error is due to classifying the position as a schedule 6 position.

Issue and finding

5The issue before me is whether the Employer is bound by the January Q&A and must grant the Complainant an additional 5 days of annual vacation and a pay raise commensurate with a schedule 6 employee. For the reasons set out below, I find that I do not have jurisdiction to hear this matter because the notice of proposal to file the complaint was not filed within the time required. I also find on the merits that, if I had jurisdiction, the complaint would fail because the Employer is not bound by the January Q&A.

Submissions of the parties

6The Complainant submits that the parties created a legal and binding contract on 30 January 2023 when he signed the letter accepting the position. He was confirmed in the position on 8 January 2024. The Complainant did not provide any reply submissions to the Employer’s response to the complaint which is before me.

7The Employer makes three submissions. First, the Employer submits that the Complainant had to give notice of a complaint about an alleged violation of a condition or term of employment within 14 days of becoming aware of its occurrence. The Complainant did not file his complaint within the 14 days as required by paragraph 8(4)3 of Ontario Regulation 378/07, Public Service Grievance Board: Complaints and Hearings (the Regulation). Moreover, the Public Service Grievance Board has no jurisdiction to extend the timelines set out by Section 8 of the Regulation. Consequently, the Board does not have jurisdiction and I must dismiss the complaint.

8Secondly, it submits that the Board does not have jurisdiction over the complaint because subsection 4(2) of the Regulation bars it from hearing a complaint about assignment to a particular class of position.

9Thirdly, it submits that it is not bound by its description of the position as a Schedule 6 since that would be in violation of the Compensation Directive issued by the Management Board of Cabinet.

10The Employer referred me to Hasted/Berezowsky v The Crown in Right of Ontario (MCSCS) PSGB No P-2014-2665 (Nairn) (Hasted/Berezowsky).

Relevant regulatory provisions

11The relevant provisions of Ontario Regulation 378/07, Public Service Grievance Board: Complaints and Hearings (Regulation 378/07) are as follows:

Complaint about a working condition or a term of employment

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:

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

Notice of proposal to file a complaint

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

1. 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.

Period for dispute resolution

9.(1) A complainant is not entitled to file a complaint with the Public Service Grievance Board until expiry of the period provided under this section for dispute resolution.

(3) If the complainant was required to give a deputy minister notice of the proposal to make the complaint, and if the deputy minister or his or her delegate meets with the complainant within 30 days after the deputy minister receives the notice, the period provided for dispute resolution expires on the earlier of,

(a) the day that is 30 days after the meeting; or

(b) the day on which the deputy minister gives written notice to the complainant of his or her decision about the proposed complaint.

(5) If the deputy minister or chair of the Public Service Commission, as the case may be, or his or her delegate does not meet with the complainant within 30 days after receiving the notice, the period provided for dispute resolution expires 30 days after the notice was given to the deputy minister or chair.

Analysis

12In my analysis, I begin by addressing the Complainant’s submissions and then turn to the Employer’s submissions.

Complainant’s submissions

13The Complainant’s argument relies on the January Q&A. He states that the offer that he accepted on 30 January 2023 was a binding and legal contract and that the Employer cannot unilaterally modify it. The Employer responded that the January Q&A could never rise to the status of a binding contract because it contained a disclaimer in a footer on each page.

14I note that the mistake in the January Q&A is a unilateral mistake. The rule on unilateral mistakes is to let the burden fall on the party who caused the problem. It is not clear that an objective third party would have known that the vacation term was a mistake. Consequently, the Employer cannot rely on the plea that it was a mistake. However, there is no reason why the disclaimer should not be given its full effect as an exclusion clause. It therefore exempts the Employer from any consequences for its error.

15I also note that the disclaimer applies to the Q&A and does not apply to the letter of 30 January 2023. That letter does not have any clause that imports into it the terms of the Q&A. Hence, the letter of 30 January 2023 is the controlling document and it makes no reference to vacation days. Consequently, even if the letter was a stand-alone contract, the Complainant cannot rely upon it to ground his claim for an additional five vacation days. If I had jurisdiction (to be discussed below), I would find that his complaint thus fails for lack of any document binding the Employer to the additional 5 vacation days.

Employer’s submission

16According to the Employer, I do not have jurisdiction to hear the complaint for three reasons. First, the complaint was made out of time; secondly, it pertains to an assignment to a particular class of position; and, thirdly, the error is a violation of the Compensation Directive.

17I begin by addressing the Employer’s argument with regard to timeliness. I only need to address the other two arguments if I find that the complaints were filed in a timely manner. The Employer has the burden of proving its allegations on the balance of probabilities.

Timeliness

18The Employer submits that the Complainant was required to file his notice of complaint within 14 days either of his first acting assignment as a Staff Sergeant, that is 2 May 2022, or of his receipt of the February Q&A. As the Employer correctly points out, 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”. Hasted/Berezowsky at para. 22. If a complainant does not comply with this requirement, this Board does not have jurisdiction over that matter.

19Regarding the Employer’s first argument that the Complainant was required to file his notice within 14 days of his first acting assignment as a Staff Sergeant, the Employer did not state when the 14 day period to give notice of the complaint began to run or when it came to an end. The Complainant did not address this matter in his complaint and did not file any reply to the Employer’s response. Consequently, I know neither when the 14 day period arguably began nor when it ended in relation to this assignment. Given the lack of submissions on this point, it is not clear why the Complainant should become aware of the breach of the term pertaining to vacation days when he takes up his first acting appointment as a Staff Sergeant. It appears to me that the Complainant would only know that he was being denied the five vacation days when he would try to use those five days. However, I have no evidence before me if that occurred. As the Employer submits that the Complainant has not complied with the 14 day notice provision, it bears the burden of proving non compliance. It has not done so in relation to this assignment. I therefore find that the Employer has not proven that the Complainant ought to have known of the alleged breach of the vacation provision when he took up his first acting assignment as a Staff Sergeant.

20In the alternative, the Employer submits that the time to file the complaint began to run when the Complainant became aware of the Employer’s mistake. He ought to have known of the breach when the February Q&A was provided to him. Again, the Employer has not provided any dates as to when this occurred. In the absence of a response from the Complainant, I am left to reconstruct what transpired. The Complainant did not dispute the Employer’s assertion in its submissions that the February Q&A was communicated to him in February. Assuming that the February Q&A was communicated to the Complainant at the latest possible time in February 2023, that is on the 28th, he would have until 14 March 2023 to file his notice of complaint. Both the January Q&A and the February Q&A address the matter of vacation entitlements, the January Q&A at Question 16 and the February Q&A at Question 18. The same table appears in both documents. However, when comparing the data in the two tables, it is clear that the February Q&A has reduced the Annual MCP Allocation by five days. I therefore find that the Complainant ought to have known of the alleged breach of the vacation provision by 28 February 2023. Given that he filed his notice of complaint on 11 January 2024, I find that he is beyond the 14 day period which expired on 14 March 2023. Therefore, this Board does not have jurisdiction to hear this complaint.

Conclusion

21In light of my finding above, I do not need to address the other two submissions of the Employer.

22I conclude that the complaint was made out of time as the Complainant ought to have known much earlier that he would not receive the five vacation days found in the January Q&A. I find that the complaint is untimely and I sustain the preliminary objection of the Employer. In any event, even if I had jurisdiction, I would find that the complaint fails because there was no legally binding document before me that bound the Employer to the additional 5 vacation days claimed by the Complainant.

23Accordingly, the complaint is dismissed.