P/0002/01
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Mously
Grievor
- and -
The Crown in Right of Ontario (Ministry of Correctional Services)
Employer
BEFORE
Deborah J.D. Leighton
Vice-Chair
FOR THE GRIEVOR
Mike Mously
FOR THE EMPLOYER
John Smith, Counsel Legal Services Branch Management Board Secretariat
HEARING
August 23, 2001.
Order
Mr. Mike Mously, Superintendent of Maplehurst Complex, filed a grievance on March 11, 2001 alleging as follows:
… I grieve that my rate of pay since being assigned to the position of Superintendent, Maplehurst Complex, has not been properly determined and that I have been paid at an incorrect rate since October 10, 2000.
Mr. Mously requested disclosure of certain documents from the employer. The employer opposes the production of some of the requested documents.
Employer counsel, Mr. Smith, summarised the facts of the case (which were substantively the same as the grievor’s summary) for the purposes of the motion. Mr. Smith stated that on May 1, 2000 the grievor was the Deputy Regional Director – Adult Supervision, Central Region. On July 24, 2000 he became the Acting Regional Director, Central Region. The grievor applied for a superintendent position before he took the acting Regional Director’s position. The competition involved twelve superintendent positions. Mr. Mously came third in the competition and was assigned as of October 10, 2000, to his second choice – Maplehurst – by letter dated October 30, 2000.
Counsel for the employer said that the employer returned the grievor to his home position for one day, “specifically and knowingly,” to avoid calculating his pay increase on the acting position. Mr. Mously takes the position that his pay raise should have been calculated pursuant to the employer’s policy, “Pay on Assignment Operating Policy,” on the salary he was earning in his acting position, held before his assignment to Maplehurst. In the alternative, it is the grievor's position that he has received differential treatment to the other successful candidates in the superintendent's job competition. His position is that his salary was not calculated based on his temporary assignment, as it was for others in temporary assignments. Thus the central issue between the parties is whether the grievor’s salary has been calculated correctly for his position as Superintendent.
At the first day of the hearing into this matter the grievor advanced an additional claim -- that the employer has not finished the process of reclassifying the superintendent's position from SMG2 to AIM23, and he, Mr Mously, is therefore entitled to SMG2 pay from the date of his appointment to the date of reclassification. There was some issue between the parties as to whether this amounted to a fresh grievance or an alternative theory. However, the employer agreed that the complaint could be added, provided it had 30 days to consider it before any order regarding documents.
Mr. Mously asked for disclosure of documents by letter dated July 28, 2001, some of which have been produced, and some of which the employer has agreed to provide. This order deals only with the documents in dispute, as follows.
- Any and all documents regarding the results of competition CS–9045–00 but not limited to the relative ranking of the successful candidates.
The employer submitted that these documents were not relevant. Counsel noted that it will be the employer’s evidence that Mr. Mously was ranked third and received his second choice of position at the AIM 23 level. Further, pay rates were determined without reference to standing in the competition. The grievor’s view was that these documents are arguably relevant and he noted that comparison of pay with other successful candidates has been an issue since he brought his complaint forward.
- With regards to the position of Superintendent (Maplehurst Complex):
The names, classifications and pay rates for any and all incumbents who occupied the position for the period 1999 to present;
Any and all position specifications, classification evaluations and other documents indicating the position's classification(s) for the period of 1999 to present;
Any and all documents relating to the decision to change the classification of the position to the AIM23 level;
Any and all documents reflecting the necessary approval to change the classification of the position to the AIM23 level.
The employer submitted that these documents are not relevant since the position of superintendent has been reclassified since the previous incumbent held the job, from an SMG2 to an AIM 23. The grievor’s submission was that this information was highly relevant, especially since a job specification disclosed by the employer seemed to indicate that the position has yet to be reclassified. This has lead the grievor to advance an additional theory of his grievance that if the position is not yet reclassified, he is entitled to SMG2 pay until the reclassification.
- With regards to all positions which were filled as a result of competition CS-9045-00 (including the Superintendent of the Maplehurst Complex):
The name, classification and pay rate of the last incumbent who occupied the position prior to it being filled;
A statement as to whether the last incumbent was in position on an acting or permanent basis;
For positions which were being filled on an acting basis, the name, classification and pay rate of the person who last held the position on a permanent basis;
The employer argued again that these documents are not arguably relevant and are in the nature of a “fishing expedition.” The grievor’s argument was that documents showing previous incumbents and new incumbents were arguably relevant to his position that he has been treated differently than others promoted to the superintendent position.
Mr. Mously also identified the following documents requested in his letter of August 22, 2001.
- With regards to the positions of Superintendent at the Toronto East Detention Centre, Toronto West Detention Centre, Eglin-Middlesex Detention Centre, Hamilton-Wentworth Detention Centre and Ottawa-Carleton Complex:
The names, classifications and pay rates for any and all incumbents who occupied the position immediately prior to the position being filled via competition CS-9045-00;
Any and all position specifications, classification evaluations and other documents indicating the positions' classification(s) for the period 1999 to present;
Any and all documents relating to any decision(s) to change the classification to the AIM22 level;
Any and all documents reflecting necessary approval(s) to change the classification of the positions to the AIM22 level.
The employer submitted that this request was also not arguably relevant, and was made as a "fishing expedition" in order to make a case, and cited OPSEU (Dowhey et al) and MCS 1562/88 (Kirkwood). Counsel also argued that information on pay for prior incumbents was certainly not relevant.
Mr. Mously argued in general that the test to be applied in this case is whether the documents are arguably relevant and that this should be broadly and liberally construed. He noted that production of these documents does not preclude arguments as to their admissibility. He cited OPSEU (Hyland) and MCS 1062/89 (Ratushny) in support of his submission.
Having carefully considered the submissions of the parties I have decided that documents listed at numbers one are not arguably relevant, and therefore do not have to be produced. The employer has stated for the record that pay rates for successful candidates for the positions of superintendent were not based on standing in the competition.
As to the documents requested and noted above under numbers two, three and four, these documents must be produced within 10 days of this order. Given the claim that the grievor has been treated differentially and therefore unfairly, these documents are arguably relevant. This board has recognised and been guided by decisions of its sister board, the GSB. The cases provided by both employer counsel and the grievor make it clear that for the purposes of production, relevance must be construed broadly. The documents have been identified with sufficient particularity so that the request for production does not amount to a "fishing expedition." Therefore the board hereby orders that the documents under items two, three and four, noted above, shall be provided to the grievor within 10 working days of the date of this order.
Dated at Toronto, this 28th day of November, 2001.