PSGB# P-2023-02510; P-2023-02545

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Ball and Steenson

Complainants

• and -

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

Employer

BEFORE

Henri Pallard

Vice Chair

FOR THE COMPLAINANTS

David Ball and James Steenson

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel

SUBMISSIONS

February 2 and March 1, 2024

Decision

1David Ball and James Steenson, the Complainants, allege that they have not been properly compensated for the rapid antigen testing which they were required to conduct on themselves prior to reporting for work during the COVID-19 pandemic. More specifically, they were not compensated for the period from 18 February 2022 to 5 March 2023 and only partially compensated from 6 March 2023 to 30 April 2023 inclusively.

2The Ministry of the Solicitor General, the Employer, submits that the Complainants were properly compensated and that the Public Service Grievance Board, the Board, does not have jurisdiction. It raised two preliminary objections. First, the Board has already decided both matters before me on their facts and issues; the doctrine of res judicata bars me from considering the complaints. Secondly, the Complainants were out of time when they filed their complaints as they did not give notice of their complaints within 14 days after becoming aware of the alleged breach. On either ground, according to the Employer, the complaints should be dismissed.

3The Complainants disagree with the Employer’s submissions. First, their complaints have not been addressed; secondly, they raised the matter within 14 days of obtaining the information that they would not be compensated or that they were improperly compensated.

4At the Case Management Meeting held 18 January 2024, the parties agreed to sever a hearing on the merits of the grievances from the two preliminary objections raised by the Employer. We would first address the preliminary matters. If I were to dismiss the Employer’s preliminary objections, we would reconvene to take up the substance of the complaints. Therefore, this decision only addresses those two preliminary objections: res judicata and timeliness.

Issues

5There are two issues before me. First, I must determine the starting date for the 14-day time limit for the filing of this Complaint, that is, when the Complainants became aware or should have become aware of the Employer’s refusal to compensate them for the rapid antigen testing that they conducted on themselves and which was required by the Employer, prior to their reporting for work. Only if I find that the complaints were timely do I then need to decide whether the doctrine of res judicata applies to the matter before me.

Findings

6As set out below, with regard to the issue of timeliness, I find that the Complainants should have been aware much sooner than they allege that the Employer was refusing to compensate them for rapid antigen testing; their complaints were thus not made within the prescribed timelines. I conclude that I do not have jurisdiction to consider the complaints and I therefore dismiss them. In the circumstances, I do not need to determine whether the doctrine of res judicata applies.

Facts

7The Complainants have positions as Staff Sergeants in the Ontario correctional system, Schedule 5 Employees under the Employer’s Compensation Directive. On 18 February 2022, the Employer required Sergeants to complete a rapid antigen test outside of the workplace at least 48 hours before the end of each scheduled shift. The testing requirement ended on 30 April 2023.

8By a memo dated 29 May 2023, the Employer announced that Sergeants or Staff Sergeants who had worked at least one shift per week and submitted at least one rapid antigen test per week would be compensated for 30 minutes at the overtime rate retroactively from 6 March to 30 April 2023 inclusively. Those payments have been made.

Submissions of the parties

9The Employer referred me to Ontario Public Service Employees Union (Martin) v Ontario (Transportation) 2023 CanLII 28226 (ON GSB) (McKendy) (Martin). The Employer also relied on Kurczak v Ontario (Solicitor General), 2023 CanLII 102947 (ON PSGB) (Kuttner) (Kurczak); Taylor v The Crown in Right of Ontario (MCSCS) PSGB No 2016-2281 (Devins) (Taylor); Laforest v The Crown in Right of Ontario (SolGen) PSGB No 2018-3801 (Morgan) (Laforest); and Hasted/Berezowsky v The Crown in Right of Ontario (MCSCS) PSGB No P-2014-2665 (Nairn) (Hasted/Berezowsky).

10First, according to the Employer, I am bound by the principle of res judicata as set out in Martin. In Kurczak, the Board addressed the question of rapid antigen testing and the conditions for an award of compensation. According to the Employer, the issue before me was substantially decided in Kurczak and I am bound by that decision in light of the doctrine of res judicata. I must therefore dismiss the two complaints before me.

11Secondly, the Employer submits that the Complainants 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 notice given by the Complainants fell outside the 14-day period. Moreover, the Board has no jurisdiction to extend the timelines set out by Section 8 of Ontario Regulation 378/07, Public Service Grievance Board: Complaints and Hearings. Consequently, the Board does not have jurisdiction and I must dismiss the complaint.

12In their response to Employer’s submissions, the Complainants did not address directly the first of the two preliminary objections of the Employer. On this point, I understand their position to be that their grievance has not been adjudicated and consequently I have jurisdiction to hear their complaints. Their submissions were more fulsome on the issue of timeliness although they were more concentrated on the merits of their complaints. Referring to their correspondence with their superiors and the replies received, they submit that they only found out much later about the Employer’s breach of a term or condition of employment and that their notice therefore complies with the 14-day requirement. Again, they would conclude that I have jurisdiction.

Relevant regulatory provisions

13The 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,

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:

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.

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

14I begin by addressing the second of the Employer’s two objections, the timeliness argument. I only need to turn my mind to the Employer’s other argument based on res judicata if I find that the complaints were filed in a timely manner.

Timeliness

Argument of the Employer

15With regard to timeliness, the Employer makes a two-pronged argument. First, the Complainants have been compensated for the period from 6 March to 30 April 2023 inclusively. Consequently, the matter is moot and I should dismiss the complaint. Secondly, the Complainants were required by paragraph 8(4)3 of Regulation 378/07 to provide the Employer with a notice of a complaint about the violation of the term or condition of employment—compensation for duties executed at the direction of the Employer outside of their normal working hours and away from their normal place of work—within 14 days of becoming aware of the violation. The Complainants did not notify the Employer within the required 14 days, i.e. by 4 March 2022 according to the Employer’s submissions. The Complainants did not challenge this date. The Employer’s response is that the timelines set out in sections 4, 8 and 9 of Regulation 378/07 are mandatory and that the Board does not have the jurisdiction to extend these timelines. The Board reaffirmed that approach to its powers in Kurczak.

16I agree with the accepted interpretation of the Board’s lack of jurisdiction to modify the timelines set out in Regulation 378/07. The jurisprudence of the Board consistently sets out that these are mandatory directives and that it is not free to modify them. See Taylor at para 11, and Laforest at para 46.

17I therefore must determine whether the Complainants gave notice within the 14-day period. That requires that I determine when the Complainants became “aware of the circumstances giving rise to the complaint”. See Hasted/Berezowsky at para 22. Furthermore, the notice must be given to the appropriate Deputy Minister as required by paragraph 8(1)1 of Regulation 378/07.

Argument of Complainants

18According to the Complainant David Ball, he should have been compensated at 1.5 times his hourly rate in accordance with the Compensation Directive of 27 January 2014. Moreover, as he completed the rapid antigen testing from 13 February 2022 to 27 April 2023, he should have been compensated for some 14 months and not two months. When he had made previous requests about compensation, the standard answer was to direct his inquiry to his Superintendent. Consonant with those directives, he states that he repeatedly inquired of his Superintendent F. Hooper if he was getting paid. She responded that she believed that they were but did not have a timeline. On 14 September 2023, he made inquiries with Nicole Langdon, the Human Resources Advisor at the Treasury Board Secretariat, about payment. On 15 September 2023, Superintendent Hooper informed the Sergeants that they would be paid on 30 September 2023. He was not paid. On 11 October 2023, he again asked Ms. Langdon about compensation. On 25 October 2023, she advised him to submit a ticket. On 31 October 2023, she informed him that he would not be paid. On 7 November 2023, Thomas Elliott, the Business Administrator at the Central North Correctional Centre confirmed that he would not receive any further compensation than what was previously provided. The Complainant therefore submits that he only became aware that he would not be compensated on 31 October 2023. He filed his grievance with the Deputy Minister on 8 November 2023, and given the lack of response, he filed his Application with the Board on 11 December 2023. He submits that he thus met the 14-day requirement.

19The Complainant James Steenson substantially relies on the arguments of the Complainant David Bell.

Analysis

20I will address first the complaint filed by David Bell.

21There is no disagreement that the Complainant was not paid for conducting the rapid antigen testing from the time that he was required to begin testing himself on 18 February 2022 until 6 March 2023 (the “non payments”). From 6 March until 30 April 2023, he was compensated, but not at 1.5 times his regular rate (the “disputed payment amounts”). The Complainant alleges that this violated one of the terms and conditions governing his employment relationship.

22As in Kurczak (para 26), I must determine when the Complainant became aware of the alleged violation. He submits that he was not aware that he would not be compensated at 1.5 times his regular rate until 31 October 2023 when he received confirmation that he would not in fact be paid for conducting the mandatory rapid antigen tests on himself before reporting for work. Therefore, the 14-day time period set out in subsection 8(4)3 of Regulation 378/07 with regard to his obligation to give notice to the Employer to contest the decision to not compensate him only arose at that point in time. The Employer submits that the Complainant was aware since the beginning of the requirement to conduct rapid antigen testing that he was not being paid and he should have made his complaint then.

23It is a fact that the Complainants were not being paid since the implementation of the testing requirement. If the Complainants had examined their pay, they would have known that they were not being paid. I find that they either knew or reasonably ought to have known at the end of the first pay period after the rapid antigen testing requirement was implemented that they were not being paid for conducting those tests on themselves. Therefore the 14-day period began to run at that time and must be calculated from the day of the first nonpayment after the implementation of the mandatory testing, that is March 2022. It follows that the complaint made on 8 November 2023 to the Deputy Minister for nonpayment did not fall within the 14-day period as it was made some 20 months after the nonpayment. Also, even if each subsequent nonpayment was considered to be a new violation that gave rise to a new cause of action or right to file a complaint with the Deputy Minister (a point that need not be decided here), these alleged violations for nonpayment would also be out of time as the Complainant did not file a complaint within any of the subsequent 14-day periods.

24With regard to the complaint about the disputed payment amounts, the Complainant was notified about the proposed payment by a memo dated 29 May 2023 from Kevin Sawicki, Executive Director, Institutional Services. It is at that time that he became aware of the disputed payment amount and the 14-day notice period began to run. That window for filing a complaint would then have closed on 12 June 2023. As the complaint was only filed with the Deputy Minister on 8 November 2023, it is out of time.

25With regards to the complaint filed by James Steenson, the same reasoning applies subject to any modification to the relevant dates in his complaint. I thus find that his complaint is also out of time.

Res judicata

26The doctrine of res judicata prevents a party from litigating a second time an issue that has already been determined by a court or tribunal. In the employment context, once an issue has been decided by a court, a tribunal or an adjudicator, the parties to the grievance—the employer, the employee or, where applicable, the union—are bound by that decision.

27The issue of res judicata only arises if the complaints comply with the required timelines set out in Regulation 378/07. As I have found that they were not, it is not necessary for me to determine whether the doctrine of res judicata is applicable in the circumstances.

Conclusion

28The complaints were made out of time as the Complainants knew very early on that they were not being compensated. I find that the complaints are untimely and I sustain the preliminary objection of the Employer.

29Accordingly, these complaints are dismissed.