Mancini v. The Crown in Right of Ontario (Ministry of the Solicitor General), 2024 CanLII 83896

Public Service Grievance Board

PSGB# P-2023-03118

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Mancini Complainant

• and -

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

BEFORE Brian Smeenk, Chair

FOR THE COMPLAINANT Anthony Mancini

FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel

DECISION

1The Complainant, Anthony Mancini, was previously a Sergeant at the Central East Correctional Centre (“CECC”). He has been placed into the position of Staff Sergeant as part of the restructuring of various classifications by the Ministry of the Solicitor General (“the Employer”). In this complaint under The Public Service of Ontario Act, 2006¹ Mr. Mancini challenges his treatment in the restructuring. He complains about the changes to his terms and conditions of his employment when he was assigned to the Staff Sergeant position on January 8, 2024.

2Mr. Mancini’s three main arguments about being placed into the Staff Sergeant position are summarized in his application as follows. He alleges that the placement involved:

a. violation by the Employer of its employment policies, in particular its “Statement of Ethical Principles – Institutional Services Policy and Procedure Manual”;

b. the Employer’s pressuring him with undue influence to sign an “Option Letter” to opt for the Staff Sergeant position; and

c. breach of his rights under Section 2(d) of the Charter.

3The Employer makes a preliminary objection regarding the Board’s jurisdiction to consider all three arguments, as well as disputing the application on its merits. The Employer submits that the application is precluded by section 4(2) of Ontario Regulation 378/07 (“the Regulation”). That section circumscribes the Board’s jurisdiction. It provides in part that, “The assignment of the public servant to a particular class of position,” cannot be the subject matter of a complaint. That is the essence of the complaint and is thus outside the Board’s jurisdiction, argues the Employer.

4The parties agreed to proceed first with the preliminary objections regarding issues [a] and [b], while holding issue [c] in abeyance for possible later determination.

5This decision therefore deals with the Employer’s preliminary objections regarding the first two issues. For the reasons that follow, I have concluded that the preliminary objections must be upheld regarding issues [a] and [b].

THE FACTS

6The relevant facts are not in dispute. For the sake of clarity and completeness I will expand to some extent on the facts that the parties have expressly agreed upon by referencing other facts set out in the documents admitted into evidence on consent. This set of facts parallels those considered in two other, recent decisions of the Board dealing with the same restructuring of jobs: Dobos² and Cornish & Beattie³.

7The employment status of Sergeants has been in dispute for some time. Protracted litigation occurred before the Ontario Labour Relations Board (“OLRB”) in respect of efforts by the Public Service Association of Canada to represent Sergeants in the Employer’s Corrections division. The OLRB ruled⁴ that if Sergeants were deemed not to be managers pursuant to the traditional management function test, then either OPSEU or Association of Management, Administrative and Professional Crown Employees of Ontario (“AMAPCEO”) must represent those positions as a result of restrictions within the Crown Employees Collective Bargaining Act, 1993.⁵

8On February 24, 2022, the Grievance Settlement Board (“GSB”) issued the decision of Arbitrator Brian McLean (“McLean Decision No. 1”)⁶ The arbitrator found that AMAPCEO had relinquished its bargaining rights for the Sergeant and Staff Sergeant cadre. He found that any such rights were assumed by OPSEU as the bargaining agent for all employees employed at correctional institutions.

9The issue of whether the Sergeant position was incorrectly excluded from the OPSEU bargaining unit for being supervisory or managerial, was left for future determination. Arbitrator McLean referred the matter back to the Employer and OPSEU to jointly address.

10On May 5, 2022, the Employer announced that it had begun an organizational review of the supervisory and management functions within the correctional system, as a response to McLean Decision No. 1.

11On November 2, 2022, the Employer announced the result of the organizational review. It advised staff of a restructuring of its management level, introducing a supervisory level within its Institutional Services Division. More particularly, the Employer stated that, “In this new structure, the current Sergeant rank will no longer be utilized, and the existing responsibilities will be shared by a new position, the Correctional Supervisor, and a strengthened Staff Sergeant complement.”

12On December 14, 2022, the allocation of Staff Sergeant and Corporal (i.e. Correctional Supervisor) positions was announced. All together there had been 620 Sergeant and Staff Sergeant positions, out of which 572 were Sergeant and 48 Staff Sergeant positions. 572 Sergeant positions were eliminated, and the Staff Sergeant positions were inflated from 48 to 438. 182 Corporal positions were created within the OPSEU bargaining unit.

13On January 30, 2023, “Option Letters” were sent out to Sergeants asking them to choose between being assigned to a Staff Sergeant or a Corporal position. They also had the option to resign or retire from the Ontario Public Service. They were given twenty business days to make their decision by checking, signing and returning the election form. Mr. Mancini chose “Option 2”, i.e. to be considered for a Staff Sergeant position at Central East Correctional Centre. He was ultimately assigned to that position effective January 8, 2024, with a confirming letter dated January 11, 2024. It describes the “job title” as “Staff Sergeant”, and the applicable “classification” as “Manager 8 (M8)”. The applicable job description states that Staff Sergeant is the “Position Title”. The M8 classification is, as I understand it, a class of position within the Public Service’s compensation structure.⁷

14On June 27, 2023, the GSB issued another decision of Arbitrator McLean (“McLean Decision No. 2”)⁸. It dealt with OPSEU’s contention that the Employer was in violation of its collective agreement when it purported to directly assign individuals including Sergeants into the newly-created Corporal position. Arbitrator McLean ruled that the Employer had no right to do so and upheld OPSEU’s grievance. McLean Decision No. 2 required the Employer to respect the job posting provision of the OPSEU collective agreement, thus allowing OPSEU members to apply for the new Corporal positions in competition with the non-union Sergeants. While this did not affect Mr. Mancini, many Sergeants who had elected to move into the Corporal position were affected.

THE LEGAL FRAMEWORK

15Sections 4(1) and 4(2) of the Regulation, upon which the Employer relies, provide in material part as follows:

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,

(a) if the public servant is eligible under sections 5 and 7 to file such a complaint…

(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.

16The question before me is therefore whether the subject matter of Mr. Mancini’s complaint is about a working condition or conditions and, if so, whether it is about his assignment to a particular class of position. If the answer to the latter question is “yes”, the Board lacks jurisdiction to hear the matter.

JURISDICTION REGARDING THE FIRST ISSUE

17To rule on the Board’s jurisdiction to consider Mr. Mancini’s first issue, it is important to examine what he is arguing. He complains that, in assigning him to the Staff Sergeant position, the Employer “…changed my uniform from a blue shirt with epaulettes that have three bar rank chevrons to epaulettes with a crown followed by three bar rank chevrons.” He also complains that the Employer, “… changed the colour of my shirt from blue to white.” He argues that such changes are “… not consistent with my working conditions as a front-line manager…” He states that, “…wearing a white shirt is ludicrous, arbitrary and degrading…” because it is inconsistent with the nature of his actual duties. He says, “The notion of working frontline operations while wearing a white shirt and trying to keep it clean is a change to my working conditions which is arbitrary, degrading and disrespectful.” He further argues that it is “…arbitrary and degrading based on the compensation structure for managers in the OPS,” in part because managers like him make substantially less money than the people they supervise.

18Mr. Mancini relies on the Employer’s Statement of Ethical Principles. He alleges that the working conditions of which he complains violate Statements 2 and 4 thereof. Statement 2 provides in part as follows:

Under no circumstances shall any person be subject to… humiliating ... or degrading treatment.

Statement 4 provides in part as follows:

Contribute to sustaining an environment which is fair, equitable and free from all forms of discrimination and harassment.

19Mr. Mancini argues that his case is “parallel to” that considered by the Board in Drakos.⁹ In that case the Board had before it a complaint of a group of Operational Managers within the Employer who contended that they had been demoted or degraded contrary to the Statement of Ethical Principles, when the Employer unilaterally changed their rank titles from Lieutenant to Sergeant. There was no jurisdictional objection by the Employer in that case. The Board upheld the complaint, finding that the Employer’s action had been, “arbitrary, in the sense of not taking account of the relevant considerations of the impact on the Operational Managers, and in the sense of being basically unexplained.” The Board held that such treatment constituted “… a breach of the Complainants’ terms and conditions of employment, including the Statement of Ethical Principles and its prohibition of degrading treatment.” ¹⁰

20In his oral argument, Mr. Mancini emphasized that he does not dispute the re-assignment from pay classification M7 to M8, but rather the change of his uniform and rank of Sergeant. He says that many of his job functions are still the same, but he is now doing them as a Staff Sergeant. But he is now responsible for two prisoner pods rather than one. He argues that, as was the case in Drakos, his dispute is about the change of title and change of uniform, which are arbitrary; not the change of his classification. The changes complained of are contrary to the requirement of the Statement of Principles of having a fair and equitable workplace, he argues.

21Mr. Mancini recognizes, however, that there have been some changes in his obligations and duties as a result of his assignment to the Staff Sergeant position, along with an increase in pay. His requirement to supervise two pods instead of one has already been mentioned. His increased responsibilities also include, on paper at least, an increase in his duty and power to discipline subordinates.

22As noted above, the question before me is whether the subject matter of the complaint is about a working condition and, if so, whether it is about the assignment of Mr. Mancini to a particular class of position.

23In my view, while this complaint is about working conditions, it is also about being assigned to a particular class of position. It is therefore not within the Board’s jurisdiction.

24The complaint clearly addresses working conditions such as the change of uniform, including the epaulettes and the change to white shirts. These changes are alleged to violate several standards contained in the Statement of Principles, which is itself a working condition.

25While addressing the new working conditions, the complaint at the same time addresses Mr. Mancini’s “assignment to a particular class of position.” He has been assigned to the position of Staff Sergeant in the higher class of position of Manager 8 (M8). The working conditions complained of are those arising from and integral to his assignment to that class of position. While he states that he is not complaining about being placed in the higher M8 class, he nonetheless is complaining about being assigned to the Staff Sergeant position and all that comes with it except the pay grade. Mr. Mancini seeks remedies that include, “the return of my rank of Sergeant and blue shirt which is consistent with my roles and responsibilities as a frontline manager. I seek to have my working conditions restored…” But Mr. Mancini cannot un-bundle the working conditions of which he complains from the assignment to the position of Staff Sergeant in the M8 class of positions. His complaint is precisely that which is precluded by S. 4(2)(2) of the Regulation. He cannot escape that reality by saying that he does not complain about the increase in pay grade.

26I do not accept Mr. Mancini’s argument that his case is like that considered by the Board in Drakos. In that case, there was no objection under S. 4(2)(2) of the Regulation regarding the Board’s jurisdiction. The complainants’ classification remained that of OM16. There was also no change to their duties and responsibilities. Thus, the case did not involve their “assignment to a particular class of position.”

27The complaints in Drakos were really about working conditions per se. In the absence of any changes in their duties and responsibilities, the complainants’ rank title of Lieutenant had been eliminated and they were required to wear a different uniform. These changes were found to be degrading. They were found to have been made without due consideration and in an arbitrary manner, thus violating the Statement of Ethical Principles.

28Unlike in Drakos, we have in this case a jurisdictional objection. We have an actual change in the pay classification of the complainant. We also have a number of changes to his duties and responsibilities. Thus, here, it is not simply a matter of a change of title or rank that may be considered to be degrading. This case, instead, involves an actual re-assignment to a different “class of position.” Mr. Mancini complains about being assigned to the position of Staff Sergeant within the M8 class. Such an assignment or re-assignment is precisely what Section 4(2)(2) precludes a manager from bringing before the Board.

29I turn next to Mr. Mancini’s argument that this case is like that recently considered by the Board in Cornish & Beattie¹¹. In that case, the Board dismissed the Employer’s jurisdictional objections. Again, I disagree that the cases are alike.

30While Cornish & Beattie also involved a situation where Sergeants were re-assigned to another classification (in that case to the Corporal classification), the essence of the complaints was quite different from the instant one. Unlike Mr. Mancini, the complainants were not seeking a reversal of their re-assignments. Nor were they complaining about the terms and conditions applicable to their new position of Corporal. This again is unlike Mr. Mancini who complains about the uniforms, the title and indeed all other terms and conditions of his new classification assignment except the pay class. Cornish and Beattie, by contrast, complained about the Employer having allegedly reneged on their “final and binding” elections which arguably became contractual agreements; about being required to participate in an allegedly unfair competition process for the Corporal position; and about the Employer’s alleged violation of various policies that were terms and conditions of their employment, throughout the restructuring process. Those complaints were found to be about the complainants’ existing working conditions that were not precluded by S. 4(2)(2) of the Regulation, rather than being about assignment to a particular class. Those subject matters are quite different than what Mr. Mancini is arguing here.

31Finally regarding this first issue, I turn to Mr. Mancini’s argument that the challenged changes to his working conditions were arbitrary in nature. He asks me to consider paragraph 43 of Drakos where the Board made the following statement:

The Board’s jurisprudence has long recognized its jurisdiction to deal with allegations that treatment by the Employer is arbitrary, discriminatory or in bad faith, or in breach of policy such as the Statement of Ethical Principles. See for instance Chyczij v. Ontario (Ministry of Labour), 2006 CanLII 26472 (ON PSGB) and the older cases cited therein…

32While that statement of the law is accurate as far as it goes, as the Employer pointed out in its submissions, there is an important limitation to that principle. The limitation is that, as has been ruled in a number of its decisions, the Board cannot use that authority to delve into matters that are excluded from its jurisdiction by the Regulation or the Act. Thus in Bowmaster, the Board stated as follows:

[34] …. However, what is being fundamentally complained about are those matters excluded from the Board’s purview by paragraphs 4 and 5 o sub-section 4(2) of the Regulation…

[35] Having regard to the specific exclusion in the Regulation, I find that the Employer is effectively protected from a complaint at the Board asserting that it acted in a manner that was arbitrary, discriminatory or in bad faith in respect of matters concerning pay for performance…. [T]his Board has no inherent authority and the clear language of the Regulation specifically excludes these allegations from the Board’s jurisdiction to consider and/or remedy.¹²

33More recently, in Cornish & Beattie I described the principle and the limitation this way:

[51] Thus, in addition to being entitled to try to prove and argue specific violations of the Employer’s policies, it is open to the Complainants to seek to demonstrate the unfair, unreasonable, arbitrary or bad faith application of existing terms and conditions of employment that are not expressly excluded from the Board’s jurisdiction, as described in the preceding passages. This is what I understand the Complainants to be arguing.¹³

[emphasis added]

34In this case, as in Bowmaster but unlike the situation in Cornish & Beattie, Mr. Mancini seeks to demonstrate arbitrary and unreasonable changes in his working conditions in relation to a subject matter that is expressly excluded from the Board’s jurisdiction: his assignment to a class of position. The Board’s ability to consider complaints about arbitrary decisions does not extend to such excluded subject matters.

JURISDICTION REGARDING THE SECOND ISSUE

35In the application, Mr. Mancini complains that the Employer exercised undue influence in forcing him to make an election to accept the Staff Sergeant position too quickly and without sufficient information. While this was not pursued by Mr. Mancini in oral argument, as it was not expressly withdrawn, I will address it.

36In his application, Mr. Mancini argues that, while he signed the Option Letter and chose “Option 2” to be considered for the Staff Sergeant position, he “felt pressured to make a selection without sufficient information.” He alleges that the Option Letter, “… was not really an option, but an ultimatum…” Forcing him to make a choice in that manner was an exercise of undue influence by the Employer, which had a fiduciary obligation towards him, he alleges. The exercise of his option should therefore be considered void.

37I have concluded that this issue is also beyond the Board’s jurisdiction, by operation of section 4(2)(2) of the Regulation.

38To repeat, section 4(2)(2) excludes from the Board’s jurisdiction any working condition complaint that is about, “The assignment of the public servant to a particular class of position.” That is clearly what Mr. Mancini is complaining about even though he is here addressing the manner of the election process that the Employer opted to apply when making the assignment in question.

39The application of section 4(2)(2) to oust the Board’s jurisdiction is not dependent on how the Employer chooses to assign managers to a particular class of position. The Employer ordinarily has the discretion to make such assignments in the manner it sees fit.¹⁴ If it has not fettered its discretion, it may normally decide to assign without according the manager[s] with the kinds of elections that were offered here. The fact that an election process was implemented in order to facilitate these assignments does not give Mr. Mancini any greater right to bring a complaint to the Board about the assignment than if there had been no election process.

40Put another way, there is nothing in Mr. Mancini’s complaint that would indicate that any particular kind or quality of election process had become an enforceable working condition for Mr. Mancini. There is nothing before the Board that would indicate that Mr. Mancini had any right to a process that differed from the one that the Employer had designed. For example, there is nothing to substantiate a right to a longer time to make his election nor a right to more information than that provided, such as he claims was his due. To the contrary, section 4(2)(2) indicates that the Employer may make assignments to a class of position in the manner it deems appropriate, without those decision being the subject of an application to the Board, unless the assignment involves the violation of other employee rights that the Board is empowered to enforce.

41In summary, the Regulation explicitly removes from the Board’s jurisdiction the subject matter of “assignment to a particular class of position.” Mr. Mancini’s allegations about the process used by the Employer to assist it in making his assignment to Staff Sergeant, the election process, in the absence of any alleged violation of enforceable terms and conditions of employment, are beyond the Board’s jurisdiction.

DISPOSITION

42For all of these reasons, the Employer’s preliminary objections to the Board’s jurisdiction to hear and consider evidence and argument regarding the first two issues outlined in paragraph 2 of this decision are upheld. Those elements of the application are dismissed.

43There remains the third issue outlined in paragraph 2: whether the placement of Mr. Mancini into the Staff Sergeant position resulted in breach of his rights under Section 2(d) of the Charter and any jurisdictional objection the Employer may have regarding that issue.

44The Registrar is directed to schedule a Case Management Meeting with the parties in order to discuss and determine the process for dealing with this remaining issue.

Footnotes

1. 1S.O 2006, c.35, Sched. A
2. 2Dobos v Ontario (Solicitor General), PSGB #P-2023-02515 (June 6, 2024).
3. 3Cornish & Beattie v Ontario (Solicitor General), PSGB #P-2023-02648 and #P-2023-02650 (June 6, 2024).
4. 4Public Service Alliance of Canada v. The Crown in Right of Ontario, 2017 CanLII 51086 (ON LRB).
5. 5S.O. 1993, c. 38.
6. 6Association of Management, Administrative and Professional Crown Employees of Ontario (Association) v Ontario (Solicitor General), 2023 CanLII 72160 (ON PSGB), 2022 CanLII 31316 (ON GSB).
7. 7See for example the policy entitled, “In Range Movement Policy for Executives and Managers – Government of Ontario – May 26, 2023, at pp. 1 and 16.
8. 8Ontario Public Service Employees’ Union v Ontario (Ministry of Children, Community and Social Services and the Solicitor General), 2023 CanLII 61433 (ON GSB)
9. 9Drakos v. Ministry of Community Safety and Correctional Services, 2013 CanLII 88258 (ON PSGB)
10. 10Ibid. at para. 52.
11. 11See above, footnote 3.
12. 12Bowmaster et al. v. Ontario (Solicitor General), 2020 CanLII 105698 (ON PSGB)
13. 13Cornish & Beattie, footnote 2 above, at para 51
14. 14See for example Maiwand v. Ontario (Solicitor General), 2021 CanLII 57993 (ON PSGB) a para 37.