P/0003/85
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Ms. Valarie Kanga
Grievor
- and -
The Crown in Right of Ontario (Ministry of Health)
Employer
BEFORE
Prof. C. Gordon Simmons J. Emrich Prof. R.L. Jackson
Chairman
Member
Member
FOR THE GRIEVOR
J. Tascona Barrister & Solicitor
FOR THE EMPLOYER
J. Zarudny Crown Law Office, Civil Ministry of the Attorney General
HEARING
April 7, 1986
Decision
At the commencement of the hearing, counsel for the employer informed the Board that he intended to argue that the Board lacked jurisdiction to entertain the matter on its merits. He further informed the Board that the parties had agreed to pursue the jurisdictional issue only and to seek a decision from the Board before proceeding further. Accordingly, this award deals with only the jurisdictional question.
In brief, the facts are as follows. Mrs. Kanga was first appointed to the Whitby Psychiatric Hospital in 1971 and, after a series of promotions over a period of thirteen years, was promoted to her current position on an "underfill basis" in August of 1983; this meant that she was carrying only part of the actual job responsibility and earning something less than the normal salary. In April of 1984, however, her position and salary were confirmed at their normal level. On April 1, 1985, Mrs. Kanga received a 3% merit increase, reflecting her performance over the previous twelve months. This was done, however, without any formal notification or consultation by her immediate supervisor, Ms. Diane McFarlane, the Hospital Administrator. Mrs. Kanga's grievance reflects both this omission and the magnitude of the salary increase.
The Management Compensation Plan, to which Mrs. Kanga belongs and which embraces some 12,000 management-level employees, consists of five modules or families of jobs - Administrative, Professionl, Technical, Operational and Clerical – each of which contains a number of different groups (i.e. types of jobs), each of which, in turn, contains a number of different salary levels. Mrs. Kanga is at the AM 19 level.
The entire salary structure is "revised" from time to time; that is to say, it (or certain modules of it) is upgraded in order to keep the structure competitive. A "review", on the other hand, is the modification of an individual employee's salary. It takes place on the employee's anniversary date and, within the general boundaries set by the provincial cabinet and the specific upper boundary set by the maximum of each employee's salary range, its magnitude is at the discretion of the employee's supervisor.
For example, in 1985, those members not at maximum of the MCP received increases of between 2% and 5%. According to the Manual of Administration, those with satisfactory performance should have received something in the area of 3%, while those of outstanding or superior performance should have received 5%. The Manual of Administration also stipulates that
each manager, prior to recommending a salary increase for a subordinate employee, should ensure that the employee has been informed that his or her salary is subject to review, and have discussed and explained to the employee the reasons for and rationale behind the proposed increase.
As noted above, this was never done, apparently because Ms. McFarlane had been appointed Hospital Administrator in November, 1984, and, at the time of Mrs. Kanga's salary review, was preoccupied with other concerns. This was characterized by a Ministry witness as "an oversight.”
ARGUMENT
The Ministry argues that, under Section 37 of Regulation 881 to the Public Service Act, the jurisdiction of the Public Service Grievance Board is limited to "working conditions or terms of employment" and the current situation, namely Mrs. Kanga's entitlement to either a 5% increase and/or a discussion with her supervisor, does not fall within the meaning of that term. Put another way, the government's Manual of Administration does not constitute terms or conditions of employment.
Consequently, the Ministry takes the position that the grievor has no "legal" right to any merit increase. Entitlement is discretionary and the Manual of Administration serves as a guide only. Therefore, there is nothing over which the grievor can bring a grievance before this Board. The Board cannot order the employer to exercise its discretion in any particular manner. In order for the grievor to succeed, she must establish that "the working conditions or terms of employment" contained in Regulation 881 incorporate the guidelines into her terms of employment to give her legal rights.
As we understand counsel for the employer, the grievor can enforce the Manual only through some legal mechanism. He stressed that this means through certain terms of employment, either contractual or statutory. For example, the parties agree to a certain salary and she therefore can enforce such a bargain. But without some agreement, she cannot enforce the payment of any other monies. Nor does the Manual of Administration become part of her terms of employment because the employer would then be unable to alter the Manual unilaterally. It is not part of her terms of employment as it is only a guide as to how the service is to operate. Moreover, since there has been no statutory pronouncement making the Manual part of her terms of employment, she has no valid claim here either. Therefore, the employer argues that we lack jurisdiction to rule on the merits of her claim.
Counsel for the Ministry also sought to draw a distinction and separation between the processes of performance appraisal and salary review. Not only are they different processes, it was argued, but there is a minimal linkage between them.
Counsel for the grievor argued, first, that there is a fundamental linkage between performance appraisal and salary review. The Manual of Administration clearly reflects this, and common sense dictates it. Accordingly, the Board should view the acts of performance appraisal, the decision regarding an employee's merit increase and the discussion of the increase with the employee beforehand as one integrated process and not as discrete and unrelated steps. Given that no such discussion ever took place in Mrs. Kanga's situation, that process was flawed.
Counsel further argued that, as we are here concerned with process, if the employer possesses an unfettered right to do as it wishes, how then can one attack the process? There are only two methods available for attacking the process. One involves dismissals and the other involves "working conditions or terms of employment”. Counsel argued that the contract of employment includes as its terms those procedures which are contained in the Manual of Administration. So the process must be accessible to scrutiny in order to ensure that it is being properly applied. While the grievor is not claiming discrimination at this point in the proceedings, she is unable to make such a claim because she does not know how the process operated. However, she claims that something was wrong and she seeks to ascertain whether or not her claim is valid. She disavows that this is a fishing expedition. She knows that she ought to have been given an opportunity to discuss the issue with her supervisor before a decision on her merit increase was reached. Since no discussion was held, she wishes to know why, as well as how the percentage increase was arrived at. Counsel argued that the Board is the vehicle that is available to ensure that the process is applied properly. Therefore, the Board must assume jurisdiction to entertain the grievance on its merits.
Counsel for the grievor, noting that (under Regulation 881) the Public Service Grievance Board's jurisdiction is "working conditions or terms of employment", argued that the term "working conditions" had been construed very broadly by both arbitrators and the courts and that this Board should do likewise. If, for example, "working conditions" could be construed to include two police officers in a patrol car (Re Town of Dryden and Dryden Police Association, 1 O.R., 619) and promotion (Re Sudbury Commissioners of Police and Sudbury Police Association, 1 3 O.R. [2d] 563), then surely an employee's performance appraisal and salary and the linkage between her performance and merit pay should fall squarely within that definition. In short, the salary review process, which in this case was clearly flawed, is a fundamental working condition and should therefore fall within the jurisdiction of the Board.
AWARD
The issue of the Board’s jurisdiction has been raised before. In the Golianu Case 916/83, it was argued that the Board lacked jurisdiction to hear the matter when the grievor had been demoted from a management to a bargaining unit position and claimed reinstatement into her former position. The Board set out a number of reasons why it had jurisdiction to proceed on the merits. In Hough 927/84, it was argued that the Board lacked jurisdiction to proceed to the merits when the grievor had successfully applied to another ministry for an employment position. In that case, the grievor had been suspended and he sought redress. The employer argued that the suspension had been non-disciplinary and, since the grievor was now employed in another ministry, the issue had therefore become moot. The Board devoted considerable attention to the issue of jurisdiction and believes that pages 7 through 11 warrant repeating here.
The Board relies on Regulation 881 for establishing its jurisdiction in normal circumstances. Sections 36 through 41 create the Board. Sections 41 through 48 relate to the Board's role in dismissal situations which, it is agreed, are not relevant to the instant situation. Sections 49 through 56 relate to the Board’s role when "working conditions or terms of employment" complaints are presented.
The latter sections read:
- (1) Subject to subsections ( 2 ) and ( 3 ), sections 50 to 57 apply to persons who are employed in the public service under the jurisdiction of a deputy minister and who have been so employed continuously for at least the preceding six months.
( 2 ) Sections 50 to 57 do not apply to persons in the positions or classifications set out or described in Schedule 1.
( 3 ) Sections 50 to 57 do not apply to members of the Ontario Provincial Police Force who are cadets, probationary constables, constables, sergeants, staff sergeants, detective sergeants and traffic sergeants. R.R.O. 1982, Reg. 881, s. 49.
- (1) Any person may present a complaint in respect of working conditions or terms of employment to his supervisor within fourteen days of his becoming aware of the complaint, and the person and his supervisor shall endeavor to resolve the complaint by informal discussion.
( 2 ) If the complaint is not resolved under subsection (1), the person may present the grievance in writing to the supervisor within seven days of the date of the informal discussion and the supervisor shall give the grievor his decision in writing within seven days of the presentation. R.R.O. 1980. Reg. 881, s. 50.
- (1) Where the grievance is not one to which section 57 applies, if the grievor is not satisfied with the decision or if he does not receive the decision within the specified time limit, he may present his grievance in writing within seven days
( a ) of the date he received the decision, or
( b ) of the date on which the time limit expired, as the case may be, to a person or persons, other than the supervisor, designated by his deputy minister for the purpose.
( 2 ) The person or persons designated by the deputy minister under subsection (1) shall give his or their decision in writing to the grievor within seven days of the presentation. R.R.O. 1980, Reg. 881, s. 51.
52 (1) Where the grievor is not satisfied with the decision of the person or persons designated by deputy minister or does not receive the decision within the specified time limit, the grievor may present his grievance in writing to the deputy minister within seven days
( a ) of the date he received the decision, or
( b ) of the date on which the time limit expired, as the case may be.
( 2 ) The deputy minister shall conduct an investigation into the grievance within fourteen days of the date of the presentation and shall give the grievor his decision in writing within seven days of the completion of the investigation.
( 3 ) Where the grievor has not had an opportunity to be heard by the person or persons designated by the deputy minister under section 51, the deputy minister shall hold a hearing and shall give the grievor an opportunity to be heard in an investigation under subsection ( 2 ). R.R.O. 1980, Reg. 881, s. 52.
- If the grievor is not satisfied with a decision given under section 52 or if he does not receive notice of such decision within the specified time limit, he may apply in writing to the Board within seven days
( a ) of the date he received the decision, or
( b ) of the date the time limit expired, as the case may be, for a hearing of the grievance. R.R.O. 1980, Reg. 881, s. 53.
Where an application is made to the Board for the hearing of a grievance, the Board shall hold a hearing within one month of the date of the applicatioon and, at least fourteen days before the hearing, shall notify the grievor, the employee representative and the deputy minister concerned of the date, time and place of hearing. R.R.O. 1980, Reg. 881, s. 54.
The decision of the Board in respect of a grievance shall be communicated in writing personally or by registered mail to the grievor, the employee representative and the minister and deputy minister concerned, and the Chairman of the Commission. R.R.O. 1980, Reg. 881, s. 55.
The determination of a grievance by the Board under section 54 is final. R. R. O. 1980, Reg. 881, s. 56.
In order to determine whether or not the Board possesses the requisite jurisdiction to determine this matter it must first be determined that a suspension falls within the meaning of the term "working conditions or terms of employment".
The term "working conditions" has been considered in a number of cases. In Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan Police Association, ( 1974 ), 5 O.R. ( 2d ) 285, 50 D.L.R. ( 3d ) 173 (Ont. H.C.); affirmed 1975 CanLII 645 (ON CA), 8 O.R. (2d) 65, 57 D. L. R. ( 3d ) 161 ( C. A. ) the issue arose over whether or not the term was sufficiently broad to enable an arbitrator to determine the issue of the assignment of two police officers to one patrol car during certain hours of the day. Jessup J. A. stated at p. 66 O.R., p. 162 D.L.R.:
"Working conditions" are words of very broad compass in their ordinary meaning and I think they would include the number of persons required to perform a particular task for reasons of safety as found by the arbitrator.
Again, in Re Metropolitan Toronto Police Association and Board of Commissioners of Police for Metropolitan Toronto (1980) 111 D.L.R. ( 3d ) 658 (Ont. H.C.) the court held that "working conditions" was broad enough to allow the parties to negotiate over the issue of "survivor's benefits". Mr. Justice Osler stated on p. 669:
It is a benefit to members of the police force to provide for the discharge of their obligations to their dependants in certain contingencies and, in our view, this may be a matter of collective bargaining.
The court also ruled that "a reduction in the size of the force”, “wallet with identification card and badge" were likewise bargainable issues within the meaning of the term "working conditions" even though the arbitrator had earlier ruled that he lacked jurisdiction. He apparently interpreted the term more narrowly than the court believed to be the case.
So one can conclude that the term “working conditions" covers a wide range of issues. But it is to be remembered that Section 50 (1) of the Regulations also contains "working conditions or terms of employment" (underlining ours). In Re Liquor Control Board of Ontario et al and Ontario Liquor Board Employees' Union et al (1980) 29 O.R. (2d ) 705 (Ont. H.C.) the court had before it a term that is similar in that it read “a term and condition of employment". Mr. Justice Steele, for the court, stated at p. 708:
The issue is whether or not the parties may negotiate for insurance benefits for retirees within the phrase "a term and condition of employment". The term "working conditions "has been considered in many cases, including Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association ( 1975 ), 8 O.R. ( 2d ) 65, D.L.R. ( 3d ) 161, in which Jessup, J.A., at p. 66 O.R., p. 162 D.L.R., said "working conditions" are words of very broad compass in their ordinary meaning. (See also Re Borough o f Scarborough and Scarborough Fire - fighters' Association, Local 626, International Association of Fire - fighters et al. (1979), 1979 CanLII 1832 (ON HCJ), 26 O.R. (2d) 298, 104 D. L. R. (3d) 748,) I am of the opinion that the expression "terms and conditions of employment" is even wider in scope that "working conditions". However, even within the more restricted terms of "working conditions", the interpretation must encompass all matters that are involved between the employer and the employees in negotiating a collective agreement, many items are considered as being terms and conditions of employment that do not necessarily relate specifically to the day-to-day working conditions. In Re: Procpor and Board of Commissioners of Police of the City of sarnia (1979), 24 O.R. ( 2d ) 715, 99 D.L.R. ( 3d ) 356, the Court recognized the broader definition of the "terms and conditions of employment" from "working conditions".
The above judicial decisions reveal that the term contained in Section 50 (1) viz, "working conditions or terms of employment” support a very broad interpretation being placed upon it. If we understand counsel for the employer correctly, she takes no objection to having the term “disciplinary suspensions” fa1ling within the meaning “working conditions". In our view, the term "disciplinary suspension" relates not only to "working conditions" but also to "terms of employment". Surely, an employee who has been suspended from work without pay has had his working conditions or his terms of employment adversely affected for which he is permitted to file a complaint under Section 50. To conclude otherwise would have the effect of rendering much of Section 50 (1) meaningless.
From the foregoing quotation, it must be concluded that the phrase "working conditions or terms of employment" has been broadly interpreted not only by this Board, but also by other arbitrators and the courts. We continue to subscribe to the view that a liberal interpretation to the term must be applied.
A second consideration in this case is that the Board believes that there is a fundamental linkage between performance appraisal and merit pay. Indeed, this linkage is so fundamental as to be self evident, even if we did not have the corroborating evidence of the government's own Manual of Administration. There is therefore support for the notion that performance evaluation, salary review and discussion with the employee constitute one integrated process.
Hence, the issue before us really boils down to whether or not the employer may exercise its discretion of awarding merit increases in an unfettered fashion when it has failed to adhere to the established guidelines. Are these actions, taken as an integrated whole, adjudicable before this Board? Most fundamentally, does the process of performance appraisal, merit pay determination and employee consultation fall within the ambit of "working conditions or terms of employment"?
As stated earlier, Mr. Zarudny, counsel for the employer, argued that in order for the Board to assume jurisdiction, there must first be some "legal right" incorporated into the grievor's employment relations with the employer which is missing. He relied on a recent decision of the Grievance Settlement Board between OPSEU (D. Renton and J. Ross) and Ministry of Government Services (1986) 1577/84 1578/84 (Roberts Chairman) in support of his argument. In that decision, the union was attempting to incorporate the Ontario Manual of Administration into its collective agreement. The Grievance Settlement Board declined to do so. The parties had not addressed the matter in their collective agreement so the grievance was dismissed. That decision is distinguishable from this one in two respects. The parties had a collective bargaining relationship that regulated their relations, and they had negotiated specific terms and conditions into their collective agreement. There is no similar process that is followed in the management group. Management employees do not have a detailed collective agreement to regulate their employer/ employee relations. Even the creation of this Board is outside the purview of agreement between the parties. Rather, our existence is maintained by regulation which also includes a grievance procedure to be used by aggrieved employees. There are no contractual relations created by such a procedure other than the person bringing forward the grievance must be an employee of the Ontario Government.
If we were to accept Mr. Zarudny's argument, we would effectively be reducing the Board's jurisdiction to miniscule proportions. For example, his definition would leave outside the jurisdiction of the Public Service Grievance Board such issues as demotion, discipline short of dismissal, and a host of potential situations which, by any reasonable standard, would fall squarely within the ambit of "working conditions." Indeed, there are numerous PSGB awards which deal with such issues, two of which have been mentioned earlier in this award, which were never challenged by the Ministries in question on the basis of jurisdiction. We cannot believe that the drafter or promulgator of the Regulation contemplated such a narrow interpretation. In our view, the Board must continue to give a liberal interpretation of the term "working conditions or terms of employment" until we are directed to do otherwise.
In viewing the term "working conditions or terms of employment" liberally, we are of the opinion that we possess the requisite jurisdiction to enquire into a complaint that the employer has failed to perform its stated obligations set out in the Ontario Manual of Administration. We note that the Manual contains a number of statements which reveal the intentions of the employer when applying the Manual. Examples of such statements are as follows:
These policies and procedures will guide managers at all levels in the Ontario Public Service in the fair and equitable treatment of their personnel (Exhibit 8, page 4-2-1) (our underlining)
The purpose of the personnel function is to make as strong a contribution as possible towards ensuring equality in the treatment of people across the Ontario Government Service. (Ibid. p. 4-5-1) (our underlining).
These guidelines are provided to assist managers to administer in an equitable manner. (Ibid. p. 9A-4-1) (our underlining).
The purpose in setting forth the foregoing quotes is to demonstrate that the employer has embarked upon a program which directs its managers to conduct its employer/employee relations in a fair and equitable manner. This interpretation has also been adopted by the Divisional Court in Re The Queen in right of Ontario and Ontario Public Service Employees' Union et al (1984), 1984 CanLII 2148 (ON HCJ), 45 O.R. (2d) 361. It appears to members of this Board that a complaint by an employee that s /he has not been treated fairly and equitably in his/her relations with the employer ought to be able to bring such a complaint to the Board for a determination as to whether such a complaint is justified.
Therefore, for all of the foregoing reasons, we can see no impediment to the Board's assuming jurisdiction to determine whether the grievance is or is not meritorious. It was previously agreed that, should an additional hearing date be necessary, it would be convened on July 15, 1986. Accordingly, the Secretary will be instructed to advise the parties that the hearing will continue on that date, at which time we shall proceed to the merits.
Dated at Kingston, this 20th day of June, 1986.