P-2003-1479, P-2004-0837, P-2004-1528, P-2004-1720, P-2004-1721, P-2004-1994, P-2004-2380, P-2004-3699
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Harris et al.
Grievor
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Kathleen G. O’Neil
Vice-Chair
FOR THE GRIEVORS
Mark Drakos (grievor), Sheila Zub (grievor) Richard Higgins (assisting Sheila Zub), Rob Botham (grievor), Marlene McKee (grievor), Ryan Selleck (assisting Marlene McKee), Anthony Hill and Loris Puntillo (grievors) also representing William Horobetz, Lawton Callender, Mikey Badal and Bruce Findlay (all grievors).
FOR THE EMPLOYER
Sean Kearney Senior Counsel Ministry of Government Services
HEARING
November 2, 2005.
Decision
This decision deals with preliminary motions brought by the employer in respect of several grievances from Operational Managers (OM16’s) employed at various correctional institutions, grouped together as dealing with similar issues. The general outline of the employer’s argument is set out first, followed by a more detailed consideration of the motions as applied to each of the grievances in turn. As will be seen, although the grievances each relate in some way to pay for Operational Managers, there are important differences among the various grievances.
Employer Objections: Timeliness and Jurisdiction
The employer’s timeliness objections are based on the submission that, with the exception of the Drakos grievance, the grievances were filed well after the 14-day time limit set out in s. 34(1) of The Public Service Act as follows:
- (1) A person described in subsection (2) who is aggrieved about a working condition or term of his or her employment may file a grievance with his or her deputy within 14 days after becoming aware of the working condition or term of employment giving rise to the grievance. O. Reg. 168/96, s. 6 (1).
Further, they are said to be beyond the jurisdiction of the Board as they are asking for salary revisions that go beyond the terms or conditions of their employment.
On the timeliness issue, counsel submitted that the law is now well established that grievors must be diligent and proactive in pursuing their grievances. Further, there is no need for the employer to prove prejudice. Rather, the onus is on the grievor to establish grounds for any extension of time beyond the time limits in the Public Service Act, and compelling reasons are required. Further, the employer argues that none of the cases before the Board on this occasion raise issues of the serious nature that has called for extensions of time in other cases, such as human rights issues, or dismissal.
To support the above propositions, the employer relied on the following case law dealing with delay in filing grievances: Coccia and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) PSGB#2003-3552 (Leighton),dealing with a twenty-day suspension, Johnson and Smith and The Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services) PSGB#P/0001/99, P/0005/99 (Agarwal), dealing with how employees on a compressed work week are to be credited for a regular day off which falls on a statutory holiday, OPSEU (Smith) and The Crown in Right of Ontario (Ministry of Northern Development and Mines) GSB #2002-0243, -0244 and –1243 (Mikus) dealing with a job competition grievance, and OPSEU (St. Jean et. al.) and The Crown in Right of Ontario (Ministry of Correctional Services) GSB #2001-1122 (Leighton), a claim for travel time.
As to the jurisdiction of the Board, employer counsel emphasizes that the Board has no jurisdiction to deal with salary problems such as compression or inversion, unless a specific policy, statute or other term or condition of employment has been shown to be breached. Further, pay for performance grievances are beyond the jurisdiction of the Board because of s. 31(4) of Regulation 977 under The Public Service Act. Counsel relied on Tyrell et al. and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) PSGB#2003-2687 et. al. (Carter), Garratt and The Crown in Right of Ontario (Management of Health and Long-Term Care) PSGB # 2003-1670 (O’Neil), Scott et al. and The Crown in Right of Ontario (Ministry of Transportation) PSGB# P/0001/96 (Lynk), OPSEU (Cartwright et. al.) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) GSB #2002-1457 et. al.(Abramsky).
In general, Counsel submitted that even if everything the grievors say in their grievances is accepted, they have not made out a case that the Board can remedy. In other words, the employer submitted that the grievors have not made out a prima facie case.
Grievance of Mark Drakos [P-2004-1721]
On July 13, 2004, Mr. Drakos grieved that his salary had been improperly calculated. This followed a series of letters from the employer, the first of which he received on June 4, 2004. The first letter, from Mr. Gary Commeford, Assistant Deputy Minister, Adult Institutional Services, announced a salary adjustment, as part of a Ministry response to the fact that some Operational Managers hired in the mass recruitment of November –December 2001 were being compensated at a lower rate than that of Operational Managers hired in 2002. The letter contains the following paragraph, which is central to the dispute between the parties:
In order to address this situation the Ministry has decided that the salaries of the Operational Managers hired during the mass recruitment initiative in late 2001 will have their salaries adjusted to 3% above the 2003 Correctional Officer salary, retroactive to April 1, 2002.
The letter further indicates that no policy had been breached in the creation of the difference in compensation, but that senior management had decided it was appropriate to adjust salaries of OM’s hired during the mass recruitment, on a without prejudice or precedent basis. Two subsequent letters are also relevant, one dated June 22, 2004, which amended the retroactivity date to January 1, 2002, and a second dated July 13, 2004, sent after the grievor had made inquiries, specifying that the salary adjustment was to be a lump sum payment, and the review of the percentage differential would cease once his salary was equivalent to, or in excess of, $25.59 per hour. This letter contains the following paragraph:
The Ministry recently decided that Operational Managers hired during the mass recruitment initiative, in late 2001, would be compensated with a lump sum payment equivalent to the difference between their actual earnings and 3% above the 2003 CO salary of $53,421 retroactive to January 1, 2002.
This is a somewhat different description of the pay adjustment than contained in the letter of June 4, and in Mr. Drakos’ view does not give him the salary adjustment he was entitled to by virtue of Mr. Commeford’s letter. In his view, in order to receive the benefit of what was promised in the letter, the adjustment should have been “rolled into” his salary, rather than treated as a temporary top-up, paid out in a lump sum.
The Ministry says that the Board has no jurisdiction over this grievance because the lump sum payments were gratuitous, rather than required by policy. Counsel submits that there was no obligation to pay the adjustment, and thus the grievance should not proceed, since Mr. Drakos, as an employee, is not in a position to determine how long the pay adjustment lasts. Referring to paragraph 23 of Garratt, cited above, counsel submits that the grievor has not established any basis for an entitlement arising from a clear breach of statute or policy, and thus it is not necessary to determine the merits. Rather, the case should be dismissed at the outset.
For his part, Mr. Drakos takes the position that the employer’s offers of a salary increase became a term or condition of his employment. Further, the grievor says he is not being treated fairly because the employer’s interpretation of the new salary adjustment, to the effect that only a lump sum is due, is arbitrary.
Employer counsel replies that the documentation shows that the grievor was not treated arbitrarily. Ministry staff went through the why and the how of the calculation of the adjustment, analyzing every pay period, which is the opposite of arbitrariness. Finally employer counsel argues that in the absence of any proof that anyone else received the adjustment rolled into salary, there is no foundation to the grievance.
It is important to be clear that at this stage of the proceedings, where a preliminary motion is made suggesting that there is no legal basis for the grievor’s claim, the issue is not whether the grievance is sure to succeed, or whether the employer has a good defense to the grievance. Rather the issue is whether the grievor has made out an arguable case. Here, the grievor points to official correspondence promising a pay adjustment, and says that he was not given full benefit of it. In the Board’s view, even if the employer was under no obligation to send that correspondence, there is an arguable case that once the grievor was advised that he would receive the pay adjustment set out in the June 4, 2004 letter, it became a term of the grievor’s employment. The parties disagree about the nature and duration of the pay adjustment promised, and whether it actually is a term or condition of the grievor’s employment, but these are issues in need of a hearing on the merits and fuller argument as to the distinction posited by the employer between a gratuitous payment and an enforceable term or condition of employment. As referenced at paragraph 14 of the Garratt decision, the Board’s jurisdiction extends to deciding disputes over what terms and conditions of pay are, and whether they have been correctly applied.
In the result, Mr. Drakos’ grievance may proceed to a hearing on the merits.
Grievance of Marlene McKee [P-2004-2380]
Ms. McKee’s grievance is dated June 11, 2004, and complains of two things. Firstly, in a letter virtually identical to ones sent by grievors Harris and Gardiner, she complains, that, when she was promoted on November 11, 2001, the employer gave no consideration to giving more than a 3% increase, even though the Pay on Assignment Policy authorizes Superintendents to approve increases up to 5% and Regional Directors to approve increases from 5% to a maximum of 8%. She claims she should have been given an opportunity at a meeting to articulate her experience and qualifications. As remedy, she asks for a 5% increase to her base salary, retroactive to November 11, 2001 including all monies earned during the 2002 OPSEU strike. Secondly, in the referral of her grievance to the Board on November 10, 2004, and in a letter to the employer dated March 26, 2003, the grievor also complains that the employer improperly treated a period of time when she stepped down from being an acting manager as a break in service. She requested that her acting time be backdated without a break in service, which would have placed her at the top rate in April 2001. This part of her claim is also linked to the request for a meeting, as she says the problem might have been caught at the time if there had been discussion about it.
Ms. McKee started acting as an Operational Manager in 1998, but stepped down into the bargaining unit during collective bargaining in 1999 and 2000. The grievor asserts that she stepped down and resumed acting in 1999 and 2000 on the understanding with her managers that she was resuming her former acting assignment, rather than commencing a new one, and was unaware that the Ministry would consider it a break in service. For example, during the OPSEU bargaining in 2000, she indicates she discussed the pressured situation with her managers before she stepped down and was assured by them that there would be no adverse effects on her continuing her acting assignment once the labour dispute was resolved. When she resumed acting as an OM16 a few weeks later, in April 2000, she again received a 3% increment, but lost credit for her previous raises as an acting manager. She indicates that her service date for these purposes had previously been established on commencement of her acting Operational Manager assignment in March 1998. In November 2001, she was confirmed as an Operational Manager, but was not aware at the time of the policy provisions and information on which she now relies.
For example, she has since received information that all acting managers were not treated equally, as others have been able to maintain their increments without being penalized for having ceased acting assignments during various union actions and strikes. Ms. McKee cites the example of another Operational Manager, Ms. Wood, who competed for and won a permanent OM position in 2003, but was allowed to retain the top salary rate, despite stepping down from her acting assignment in 1996, 1999 and 2002. In Ms. McKee’s submission, this situation would not be possible if Ms. Wood had been reduced to the top Correctional Officer rate plus 3% after each time she stepped down.
As to the timeliness objection, it was submitted on behalf of the grievor that she grieved in time once she became aware of the applicable policy, which reads:
- for management employees, pay on promotion is 3 percent or an increase to bring the employee to the minimum rate of the new salary range, whichever is greater. Managers must approve higher increases of up to 5 per cent. Deputy heads must approve promotional increases to a maximum of 8 per cent. A new anniversary date must be established for an employee who is promoted based on the date of promotion.
The same policy also provides that where an employee is assigned to an acting assignment with a higher salary maximum, pay treatment will be the same as in promotion, as above.
When asked about the fact that she had not grieved in 2001 when she was confirmed, she said she was trying to get into a non-closing institution at the time and was unaware of the policy. She did not ask for an opportunity to sit down and discuss an increase beyond the 3% around that time, as she had not in 1999, because she was not aware it was a possibility. However, she did ask the clerk at the Ontario Correctional Institution about her increment, and was told she would not be getting anything other than the 3%. Shortly afterwards, things became hectic as everyone was ramping up for the strike in 2002, and she started at a new institution four days before the start of the strike in March 2002. Then, Managers did not receive retroactive pay for the period which included the strike until October or September, 2002.
Ms. McKee testified as to her difficulty in ascertaining what the proper pay treatment should be. She indicated that she had received many different and confusing messages in her attempts to get answers, and that without a collective agreement to work with, the answers often depended on which individual she was speaking with. She found issues around pay for performance particularly ambiguous, especially for new people. As a layperson, trying to be patient, but wanting to be treated fairly and equitably, she found that the training for all concerned was inadequate in regards to how OM’s should be treated.
The grievor takes the wording of the clause set out above as indicating that there is an option for an increase of up to 8% on promotion. Her written statement of grievance also refers to the policy provision that allows a new-hire employee the opportunity to articulate better-than-average experience and qualifications which may justify an exception to starting that new employee at the minimum salary. The grievor claims that the fact that she was not afforded equitable treatment and the same opportunity to articulate her better-than-average experience and qualification is “scurrilous, discriminatory, and in blatant violation of the Pay on Assignment Policy”. The provision in question reads as follows:
INITIAL ASSIGNMENT – NEW EMPLOYEES
Non-Provisional
- New employees must be paid at the minimum rate of the salary range of the class of the position to which they are assigned. Market conditions or cases where candidates have better-than-average experience and qualifications may justify exceptions.
Employer counsel characterized this as a claim that, regardless of whether one gets the 3% increase on promotion, the Ministry should sit down and appraise her past performance and possibly give an increase up to 8%, something not provided for in the policy.
Employer counsel argues that the grievance should have been filed in a timely manner. It is the employer’s position that the evidence did not establish any compelling reason to extend the time lines for the length of time required to capture her issues. She should have filed 15 days after her failure to get the credit she thought was appropriate in March 1999 or March 2000. It is clear that she would have appreciated after she stepped down and back that she was not getting the higher increase. Employer counsel submitted a decision of the Ontario Crown Employees Grievance Settlement Board (GSB) which includes an overview of the employer’s approach to pay for those on acting assignments during the same time period, OPSEU (Cartwright et al) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) GSB#2002-1457 et. al. (Abramsky).
In the Cartwright case, the GSB remarked that employees on acting assignments appear to be in a “no man’s land” where neither the GSB nor the PSGB has jurisdiction over any claims from an acting manager that the employer has not properly applied its own policies. This puts into question the employer’s assertion that the grievor could have grieved in 1999 or 2000, but does not speak to the period after her confirmation as a manager in 2001.
Employer counsel submitted that the percentages above 3% in the policy are there to give management the flexibility to see that a newly promoted employee gets to the minimum of the managerial classification, as there are often larger differences between bargaining unit and managerial rates. The policy does not offer more than 3% unless 3% is insufficient to take a newly promoted employee to the minimum of the applicable managerial salary range. It would flow from this argument that the wording concerning approval of higher increases is intended only to set out who needs to do the approval, which varies according to the size of the increase, if an employee needs an increase of more than 3% to get to the minimum of the managerial pay scale.
Further, counsel submitted that the claim, made by Ms. McKee, as well as others of the grievors who will be dealt with below, that there should have been a meeting to evaluate their experience and contribution, and to consider an increase of more than 3% is inarbitrable. This is because it amounts to a request for pay for performance which is beyond the jurisdiction of the Board by virtue of s. 314) of Regulation 977 under The Public Service Act , which reads as follows:
31 (4) No grievance shall include a complaint in respect of the following matters:
A complaint that a position should be classified.
A complaint that a position is in the wrong classification.
A complaint relating to a release from employment under subsection 22 (4.1) of the Act.
A complaint regarding the method of evaluating an employee’s performance.
A complaint regarding the evaluation of an employee’s performance.
A complaint regarding the compensation provided or denied to an employee as a result of an evaluation of his or her performance. O. Reg. 59/03, s. 1.
It is argued that paragaph six in particular takes away the right to any girevance based on pay flowing from the evaluation of performance.
Conclusion on Jurisdictional issue – McKee
Ms. McKee and other grievors are asking for individual evaluations of their experience and qualifications as the policy affords to new employees. In the case of an employee who is being promoted, individual evaluation of experience and qualifications, as a basis for increases beyond the minimum 3%, looks very much like a request for evavaluation of, and pay for, performance, which is something that has been removed from the jurisdiction of the Board by the above regulation. However, it is not necessary to determine factually whether there is any significant difference between evaluation of qualifications and experience on promotion and evaluation of performance, because of the view taken below as to the employer’s alternative argument.
In the Board’s view, the portion of the grievances claiming more than 3% on promotion should be dismissed because, even assuming the facts asserted to be true and provable, no arguable breach of the Pay on Assignment Policy has been shown. There is no assertion that any of the grievors were paid something less than 3% or any greater increase necessary to bring the employee to the minimum of the managerial pay grid on promotion. It is the Board’s view that in order to have a viable grievance to the effect that an employee should have received more than 3% on promotion, a grievor would have to demonstrate that he or she needed more than 3% to get to the minimum of the managerial pay scale, and did not receive it, which is not the case for any of the grievors in the group dealt with in this decision. On this point the policy language is clear. As written, the only entitlement to a pay increase in the section of the Pay on Assignment policy quoted above is in the first sentence: “for management employees, pay on promotion is 3 percent or an increase to bring the employee to the minimum rate of the new salary range, whichever is greater.” Increases greater than 3% necessary to bring the employee to the minimum rate of the new salary range are allowed, but there is no other entitlement to an increase greater than 3%, or to a meeting to consider such an increase, to be found in the language set out above. More specifically, the fact that the policy sets out who must approve any increase greater than 3% does not create any such entitlement.
As to the allegation relating to the provision relating to new hires, no case has been made out for this portion of Ms. McKee’s and others’ grievances either. This is because there were no facts asserted to establish even an arguable case that any of them were new hires, that the assignment complained of was their initial assignment, or that there was any policy, practice or other term or condition of employment suggesting that the language relating to a person’s initial assignment should be applied on promotion, when there is specific, other language, which does apply on promotion, and on which they rely. Further, there is no basis set out in either the written or oral material before me that forms an arguable basis for a finding that it is discriminatory, in the sense of improper or illegal differential treatment, to apply the different applicable provisions to individuals in the different situations of initial assignments as opposed to a later promotion.
It is worth commenting as well on another point raised in Ms. McKee’s grievance. She writes that additional support for her grievance is to be found in comments made by Assistant Deputy Minister Gary Commeford in early 2004 to a group of Operational Managers. It is asserted that he said that, in future, Correctional Officers who are promoted to Operational Managers and are not at the top Correctional Officer 2 rate will have their OM pay rate increased to that of 3% above the top-rate Correctional Officer pay through the discretion of Regional Directors. This appears to be a specific statement on compression, something distinct from the percentage differential necessary to bring a new manager up to the mimimum of the new salary scale. As noted in the July 13, 2004 memo on the subject which was in evidence, when an increase to prevent compression is put together with the standard promotional increase, it may lead to an increase of more than 3% at the time of promotion. However, this is not the same as reviewing an individuals’s experience in order to given them a “better-than-average” increase on promotion, and does not create any entitlement to such an increase or review.
For Ms. McKee’s grievance, what remains is the portion about her claims to improper differential treatment concerning breaks in service while acting, and its effect on her present salary. In her grievance, Ms. McKee referred to the following section of the Pay on Assignment Operating Policy, under the heading “Principles”:
Employee should be paid equitably in their assigned salary ranges, taking into account such factors as skills and job-related experience, relationship to peers and career progression.
Further, there are two other bases suggested for the viability of her grievance in respect of the treatment as to her breaks in service as an acting manager. Firstly, the grievor asserts that her managers made assurances to her to the effect that she would be continuing, rather than starting afresh, in her acting assignments after the periods in which she stepped down into the bargaining unit. Secondly, there is the assertion of a precedent and practice of ignoring breaks in acting, when computing salary on entry to the permanent managerial ranks, as illustrated by the treatment of one of Ms. McKee’s colleagues.
As to this portion of the grievance, there is no clear bar to the Board’s jurisdiction over the subject matter, such as there is for pay for performance. Further, the question of whether an alleged promise or practice amounts to an enforceable term or condition of employment is one within the Board’s jurisdiction to answer. Moreover, it is not clear that even if the facts asserted, such as specific promises and practices, are presumed true that there is no arguable case for a remedy within the Board’s jurisdiction to give. Since the specific bases for this portion of the grievance are not found in written policy, it is more difficult to ascertain what the terms of employment in this regard were, without a hearing on the merits. Thus, it is the Board’s finding that there is no sufficient reason to dismiss this portion of the grievance on a jurisdictional basis, or for lack of a prima facie case.
There remains the question of timeliness.
Conclusion on Timeliness issue – McKee
The employer argues that the issue as to the grievor’s salary crystallized at the latest on the occasion of her confirmation as a manager in November, 2001, and that her grievance filed in June, 2004 is years late.
The grievor starts from the proposition that the time limits did not start running until she became aware of the policy in question, which was within the time prescribed. She relies on the wording of s. 34 (1) of The Public Service Act, which reads as follows:
A person described in subsection (2) who is aggrieved about a working condition or term of his or her employment may file a grievance with his or her deputy within 14 days after becoming aware of the working condition or term of employment giving rise to the grievance. O. Reg. 168/96, s. 6 (1).
Further, she complains of the ongoing effect on her current salary, and its current inequitable relationship to others promoted later than she was. In this regard, employer counsel urges the Board to find that it is a situation of a breach alleged at a specific time, with continuing consequences, rather than an allegation of a continuing repeated breach.
Having considered the arguments and evidence presented, it is the Board’s view that the dispute over the applicable term or condition of employment impairs its ability to deal with the timeliness issue on a definitive basis without a hearing on the merits. Assuming that the grievor can prove her assertions - that her treatment as to pay is arbitrary, in violation of the policy set out above as to equitable pay in relation to peers, as well as an established practice, and specific promises from her managers - there is an arguable case that this is a continuing grievance, involving a repeated breach of an ongoing obligation to pay at a higher rate, based on a combination of policy, promise and past practice. When a matter is considered a continuing grievance, the doctrine of delay is not applicable, because the matter is timely each time a continuing obligation is breached. For cases canvassing the case law dealing with similar issues in the context of arbitrations under collective agreements, see Re Port Colborne General Hospital and Ontario Nurses’ Association, (1986) 1986 CanLII 6715 (ON LA), 23 L.A.C. (3d) 323 (Burkett), Religious Hospitallers of St. Joseph’s of Hotel Dieu of Kingston 1992 CanLII 14621 (ON LA), 29 L.A.C. (4th) 326 (Stewart), Dufferin-Peel Catholic District School Board 1998 CanLII 30141 (ON LA), 77 L.A.C. (4th) 69 (Herlich) and Oakville(Town) (1997), 1997 CanLII 25056 (ON LA), 68 L.A.C. (4th) 117 (O’Neil).
If the employer is right that any obligation to the grievor in respect of its treatment of her exerience as an acting manager was concluded in November, 2001, then the timeliness issue may be better analyzed as in the cases relied on by the employer, and cited above, or as a case of delayed awareness of a complaint similar to the situations in Laird and the Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) #P 2003-0799 (O’Neil) and Amirault and Ministry of the Solicitor General and Correctional Services P/0028/94 (Lynk). Nonetheless, the fact that this portion of the grievance is arguably a continuing grievance, is sufficient to allow the issue of the treatment of the grievor’s breaks in service as an acting manager to go forward to a hearing on the merits. Once it is determined how the employer’s obligation to the grievor should be characterized, the impact of the lapse in time between the breaks in service and the grievance can be dealt with on a firmer legal and evidentiary basis. If at such a hearing, the grievor is unable to make out a case that there was a continuing practice which should be considered a term of her employment or some other enforceable obligation to pay her in the fashion she alleges or that she has been treated arbitrarily as she alleges, that will be reflected in the ultimate outcome of the case.
Grievance of Sheila Zub [P-2004-0837]
In Sheila Zub’s grievance, filed on June 17, 2003, she complains that she has been improperly paid since March 1998, and has been prejudiced as a result on a continuing basis. Her complaint is somewhat similar to that of Ms. McKee, in that she claims that she should have been given credit for her previous experience as an acting operations manager without regards to breaks in service relating to labour relations disputes. Specifically, she complains that a break in acting for five months due to the circumstances after the 1996 strike was improperly held against her, while breaks in service for others were not. The Ministry argues that it Ms. Zub’s grievance is untimely and inarbitrable.
As to the delay issue, it was submitted on behalf of Ms. Zub that the statute speaks to when an employee became aware. She testified that she became aware of the fact that she was not being treated equally with others during a conversation with a co-worker, Mr. Higgins on June 5, 2003. She grieved less than fourteen days after that time.
Ms. Zub testified that she attempted to determine her rate of pay in 1998 after she was appointed as a full-time OM on July 6, 1998. Her Deputy Superintendent checked into the matter when she asked, but it was decided that her OM continuous service date would be backdated only to March 1, 1998, rather than 1994 when she had started acting. She did not grieve at the time, because she trusted her employer that there was no recourse.
She referred to two examples of other OM’s treated more favourably: Roger Long, an OM16 in Hamilton, who was promoted the same day as she was in the summer of 1998, who reached the top of the scale for an OM in 2004, while she is still not at the top, and Paula Waddell, also an OM, who was promoted in 1999 or 2000, after Ms. Zub, but has already reached the maximum, when Ms. Zub has not.
On behalf of the grievor, it was submitted that the Board had jurisdiction to hear her grievance because the increases given to Ms. Zub were arbitrary compared to other OM’s in similar circumstances. The grievor’s position is that past practice was to implement credit for acting experience, whether or not service had been interrupted. Ms. Zub said she earlier trusted that the employer was fair and honest; but she now feels she was treated differently, and unfairly, when compared to others. It is submitted that her grievance is included in the categories set out in Scott et al and The Crown in Right of Ontario (Ministry of Transportation) P/0001/96 (Lynk) where the Board held that the jurisdiction of the PSGB over salary-related matters deals with complaints anchored in one of the two following groups:
the salary-related decision of the employer is premised on discriminatory or arbitrary conduct, or is in bad faith; or
the salary-related decision of the employer is in violation of the governing legislation, or a policy, guideline, practice, etc. that have the legal force of being part of the employment relationship.
Employer counsel argued that the Scott test requires some specific breach of policy as well and that Ms. Zub had indicated none.
Further, as to timeliness, it is the employer’s position that this is was not a continuing situation because there was one finite time period after the promotion in 1998 that the grievor should have grieved. The Board was urged to see this as the continuing effect of a decision at a particular point in time, rather than a continuing grievance. As to past practice, counsel argued that there is a high threshold; the practice has to be proven in order to be allowed as an aid to interpretation of some ambiguous language in a policy or collective agreement.
Ms. Zub’s arguments and situation are sufficiently similar to those of Ms. McKee, that it is the Board’s finding that the matter should be set down for a hearing on the merits for the same reasons as in the case of Ms. McKee. Although Ms. Zub did not point to the same policy provision, she does allege a pattern of practice that she was entitled to have applied to her in a non-arbitrary and non-discriminatory fashion. As with Ms. McKee, whether or not the case will be made out at the end of the day will depend on whether she is able to prove the existence of a practice or continuing obligation which the employer should be held to have applied to her. If so, the delay in grieving and its impact may be dealt with at that time.
Grievance of Rod Botham [P-2004-1528]
Mr. Rod Botham wrote to the Board on August 6, 2004, indicating his wish to appeal his grievance of Sept 15, 2003, concerning a 5% increase to the Operational Manager Salary Range Maxima. In the Form 1A filed with the Board on August 26, 2004, he indicated that the persons affected by the grievance were all operational managers not at maximum salary on April 1, 2002, because they did not receive a 5% salary adjustment. The section of the same form which calls for all of the material facts on which the applicant relies, was filled in as follows:
All OM 16’s are not being paid equitably in regards to the 5% awarded on April 1, 2002, to a certain group of OM’s only, in violation of the Pay on Assignment Operating Policy, i.e. Purpose and Principles are not being applied equitably.
In his remarks at the hearing, Mr. Botham adopted the arguments made by the other grievors, adding that he had become aware of unequal treatment among the operating managers in the summer of 2004, when a number of OM 16’s came to Maplehurst, where he works, from other institutions, and conversation ensued about where various OM’s were on the pay scale.
Mr. Botham’s remarks at the hearing dealt mostly, not with the salary maxima issue raised in his application to the Board, but with his view that when he was promoted on December 17, 2001, he should have received a further 3%, although he had received 3% when he started in his acting assignment. He sees a difference between promotion and acting assignments in the Pay on Assignment Policy, which he asserts was not correctly applied to him. When he inquired at the time of his promotion, his managers told him there was no provision for a further 3%, which he asserted constituted a breach of policy by omission, as he was then not paid equitably within his assigned salary range.
Employer counsel submitted that no one had ever before alleged what he is claiming, that he should get a 3% increase when he first started as an acting manager, and then a further 3% when promoted to a permanent managerial position. It is the employer’s position that there is no foundation in fact or in the language of the policy to justify the grievor’s claim.
It is not necessary for the Board to rule on Mr. Botham’s remarks as to the additional 3%, as it is not an issue raised in his application to the Board. The grievor’s claim at the hearing, as well as his comments concerning things he becamse aware of from other grievors during the hearing for the first time, which he felt applied to him, go far beyond the issue raised in the grievor’s submission to the Board. Subsections 34(1) and (4) of Regulation 977 under The Public Service Act provide that a grievance must set out the reasons for the person’s complaint about the working condition or term of employment. Under s. 36(1) of the same regulation, the grievor may then ask this Board for a hearing about that grievance. Although there is room for elaboration upon the grievance at the hearing, and the Board attempts to avoid undue technicality, the Board’s jurisdiction is substantially limited by what is submitted to the employer and the Board as the grievance issue to be dealt with. Here, the subject matter of what was submitted was a claim that a 5% increase to the maxima of the Operational Manager salary ranges was not awarded to those not at the maximum of their range. The facts set out in the submission to the Board, and at the hearing, are not sufficient to allow that grievance to be successful.
Although it is true that the Pay on Assignment policy provides that employees should be paid equitably, it refers to the fact that employees are assigned to salary ranges, which generally implies that employees at different levels of the range will be paid different amounts. In a system based on progression through salary ranges, it is not enough to assert that it is inequitable for those not at the salary maximum to have been denied the 5% increase to the maximum. It would be necessary to show that there was some term or condition of employment which arguably provided that those not at the maximum were nonetheless entitled to receive the increase authorized for those at the maximum. As the facts and arguments before the Board do not go that distance, a prima facie case for the remedy claimed has not been made out. In the result, Mr. Botham’s grievance is hereby dismissed and it is therefor unnecessary to deal with the timeliness aspect of Mr. Botham’s grievance.
Grievance of the Group of six: Anthony Hill, William Horobetz, Loris Puntillo, Lawton Callender, Makey Badal and Bruce Findlay [P-2004-3699]
This group of six Operational Managers filed a grievance claiming that their wages had not been maintained at 3% above the salary maximum of their direct reports. As they were all at the maximum of the Correctional Officer 2 classification, at the time of their promotion in June 2003, the 3% increase they received put them exactly 3% above the maximum of their direct reports at the time. However, with the implementation of the Correctional Officer increase on January 1, 2004, the differential was reduced to .5%. They claim as remedy a 2.5% increase to their wages, retroactive to January 1, 2004, as well as recalculations of overtime and other compensation related to their base rate. Further, they request amendment of the Pay on Assignment policy so that the problem does not recur in the future.
The grievors refer to two documents, the first a letter dated June 18, 2004 from Assistant Deputy Minister Gary Commeford and the second a memo dated July 13, 2004, from Human Resources Branch Director Josephine A. Fuller as employer statements of their continuing entitlement to a 3% differential. At the bottom of page two of the Commeford letter, the following appears:
All institutional managers confirmed as of July 31, 2003 will be compensated 3% above the current Correctional Officer rate.
On page 3 of the Fuller memo, the following statements appear:
Deputy Minister Rabeau has indicated that all institutional managers should be compensated 3% above the salary maximum of their direct reports. At the time of promotion or hire into the Operational Manager position each individual will be reviewed to determine whether or not his/her salary is 3% above the current CO2 rate. This may result in a promotional increase of greater than 3%.
The employer argues that the grievance should be dismissed as untimely because the grievors waited almost a year to grieve after the 2004 bargaining unit increase was in effect. Further, counsel submitted that there is a substantial body of cases holding that the PSGB has no jurisdiction over cases claiming compression pay. Further, it is said that no breach of policy has been made out, so the grievances are inarbitrable. Counsel argues specifically that the documents relied on only speak to pay on promotion, and do not provide that operational managers’ salary should always be 3% above their direct reports.
Having regard to the wording of the above documents, the Board is of the view that this is also arguably a continuing grievance, as the statements above appear to apply forward from July 31, 2003. Although the second sentence of the extract from the Fuller memo speaks of a review on promotion to determine whether the appropriate percentage differential is maintained, it is not obvious that the application of the provisions is limited to promotion.
Although the documents above do not bear the title of policy, they are employer generated statements of how operational managers will be paid, which raise an arguable case that they would amount to a term or condition of employment thereafter. Here, the grievors are alleging that the memos referred to above amount to an applicable term of their employment which should be applied to prevent the compression that they have experienced since January, 2004. This is not a generalized request to cure compression, or for the Board to set a compression differential itself, both things that would be beyond the jurisdiction of the Board. The fact that the employer disputes the status of the memo and letter as enforceable policy, as well as the meaning of their terms, indicates that there is a dispute over what the terms of the grievors’ employment are as to compression, something that is within the Board’s jurisdiction to determine. In the circumstances, it is the Board’s finding that the matter may proceed to a hearing on the issue of whether there is a term or condition of the grievors’ employment entitling them to an ongoing 3% differential above the Correctional Officer rate, or that of their direct reports. If they were to be successful, the question of whether they were entitled to compensation retroactive to January 1, 2004, as they claim, would be considered in light of the arguments at the end of the day and the date of their grievance. However, the additional remedial request for an amendment to the Pay on Assignment policy is beyond the jurisdiction of the Board, as it is a request for the Board to amend a term or condition of employment, rather than enforce it.
Grievances of Regan Harris
Mr. Harris did not appear at the hearing on November 2, despite having been given notice. Employer counsel asks me to dismiss the grievances as there was no indication that he wished to pursue his grievances.
Rule 6 of the Public Service Grievance Board’s Rules & Practice Notes provides:
Where any person properly served with a notice of hearing fails to attend the scheduled hearing, the Board may proceed to dispose of the grievance in that person’s absence and without further notice.
In this case, it is clear that Mr. Harris received notice of the hearing, as he sent an e-mail to the Board on November 1, stating that he would not be in attendance at the hearing. No reason was given; no request for an adjournment was made.
In the circumstances, the Board has proceeded to deal with the two grievances filed by Mr. Harris.
P-2003-1479
The first of Mr. Harris’ grievances is dated March 15, 2003, in file # P-2003-1479. It deals with the issue of compression between operational managers, correctional officers and acting operational managers, particularly the “concept of classified managers receiving significantly less compensation than individuals ‘Acting’ as managers”. However, there is no identification of any policy on compression, or any identified or alleged term or condition of employment that has been breached. The grievor refers to the general concept of “equal pay for equal work”, but does not explain how that has been breached, in a situation with salary ranges and classes, as well as various reasons why people in the same classification may be making different amounts of money at different times, depending on many factors such as length of service, shifts worked or overtime. As worded, the grievance does not demonstrate an arguable basis in law for the grievance to succeed. It generally refers to the problem of compression, but does not indicate any basis for a specific breach of a policy or other term or condition of employment such as a document setting a defined percentage differential at a given time between a specific managerial class and some other occupational category. Accordingly, this grievance is hereby dismissed.
P-2004-1720
Mr. Harris’ second grievance deals with the same issue as that dealt with concerning the McKee grievance above, asking for consideration for more than 3% on promotion based on his claiming an opportunity to articulate his “better-than-average” previous experience and qualifications. For the same reasons as above, this grievance is also dismissed.
Grievance of Joel Gardiner [P-2004-1994]
Mr. Joel Gardiner did not appear either, and did not ask for an adjournment. The Board has no indication of any problem with service. The employer similarly asks for the dismissal of his grievance.
Rule 2 of the Public Service Grievance Board’s Rules & Practice Notes provides:
Where the Board considers that a grievance does not make out a case for the orders or remedies requested, even if all the facts stated in the grievance are assumed to be true, the Board may dismiss the grievance without a hearing or consultation. In its decision the Board will set out its reasons.
Mr. Gardiner’s grievance appears to be identical to Mr. Harris’ grievance P2004-1720, and the portion of Ms. McKee’s grievance dealing with the same subject. Although I have assumed the facts stated in Mr. Gardiner’s application to be true, Mr. Gardiner’s grievance is dismissed under Rule 2 for the same reasons as for Mr. Harris’ and Ms. McKee’s grievances set out above.
To summarize, for the reasons set out above, the portion of the grievance of Ms. McKee [P-2004-2380], as well as the grievances of Mr. Harris [P-2004-1720] and Mr. Gardiner [P-2004-1994] which relate to a their claims to an entitlement to a review of experience and qualification in order to receive a “better than average” promotional increase are dismissed, as is the grievance of Mr. Botham [P-2004-1528] relating to the 5% increase to the salary maxima. The portion of Ms. McKee’s grievance [P-2004-2380] related to breaks in service, as well as the grievances of Ms. Zub [P-2004-0837], Mr. Drakos [P-2004-1721], and the group of six, Messrs. Hill, Horobetz, Puntillo, Callender, Badal and Findlay [P-2004-3699] may proceed to a hearing on the merits.
For the hearings on the merits, consideration may be given to the scheduling of the Zub [P-2004-0837]and McKee [P-2004-2380] matters together as they both deal with breaks in service as acting managers, and to scheduling the Drakos [P-2004-1721] and group grievance of Messrs. Hill, Horobetz, Puntillo, Callender, Badal and Findlay [P-2004-3699], if the parties foresee common evidence and argument as to compression issues. However, there appears to be no discernible advantage in scheduling all the remaining grievances together. If the parties have views as to the desirability or practicality of scheduling any of the grievances together, they are invited to make them known to the Registrar’s office when dates are offered.
Dated at Toronto this 22nd day of December, 2005