P-2003-1670
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Tim Garratt et al.
Grievor
- and -
The Crown in Right of Ontario (Ministry of Health and Long-Term Care)
Employer
BEFORE
Kathleen G. O’Neil Vice-Chair
FOR THE GRIEVOR
Tim Garratt, William Cote, Rick Dusome
FOR THE EMPLOYER
Yasmeena Mohamed Senior Counsel Ministry of Government Services
HEARING
October 28, 2005.
Decision
This decision deals with the issue of whether the grievors have been denied a salary review to which they are entitled as a term or condition of employment, and whether they have been treated arbitrarily, abusively or in bad faith in this regard. The original grievance, filed by a group of nurse managers from the Oak Ridge Forensic Division of the Penetanguishene Mental Health Centre, complains of wider issues as well, such as salary and benefit disparities, including compression issues, that have developed between their PM 14 classification and the Registered Nurses (R.N.’s) who report to them. The employer made a preliminary objection to the jurisdiction of the Public Service Grievance Board (referred to below as the PSGB or “the Board”) to hear the merits of this grievance, which was dealt with by a previous decision dated May 17, 2005, in which it was found that the Board had jurisdiction to the extent necessary to hear the issue concerning the salary review.
The grievors base their case on a reading of a number of employer documents relating to salary administration. The most general of these is a document put out by the Compensation Services Branch of Management Board Secretariat (referred to below sometimes as MBS), dated January 1991 entitled “Salary Rates/Ranges Directive”. Its stated objective is:
To specify the authorities and responsibilities for the determination and administration of salary rates/ranges for established job classes in the Ontario Public Service.
It applies broadly, to classified employees in all ministries except those in the Senior Management Group and Deputy Ministers’ Compensation Plan, and thus includes the grievors’ classification as well as classified employees in bargaining units. The grievors refer to a number of provisions of the document as part of the basis for their entitlement to a salary review. For instance, under the heading “Principles”, it says:
Pay administration will be consistent with approved compensation practices and recognize the managers’ responsibility to manage.
Pay administration will contribute to the attraction and retention of competent employees.
Further, under the heading “Mandatory Requirements”, the document reads as follows (in most relevant part):
All salary rates and ranges must be approved by the Lieutenant Governor in Council, subject to recommendation by the Civil Service Commission/Management Board Secretariat for the management and excluded classes [PSA, sections on Duties of Commission and Implementation of Collective Agreements; CECBA, section on Bargaining Units Established as amended by Bill 7, s. 7(1)].
Entitlement to revised salary rates as a result of cyclical review of class salary ranges or of implementation of new and revised classes must be in accordance with the appropriate:
salary agreement for employees with approved bargaining agents;
instructions covering implementation;
specific provision covering employees on maternity or adoption (Parental leave [see PSA, Reg. 977/95, sections on Pregnancy and Parental Leaves; OPSEU Collective Agreement, Articles on Pregnancy Leave for Full time Civil Servants and Regular Part Time employees in the Collective Agreement; PEGO Collective Agreement, Article on Pregnancy and Parental Leaves]
Specific provisions covering salary protection [see PSA, Reg. 977/95, sections on Reclassification; OPSEU Collective Agreement, Articles on Pay Administration; PEGO Collective Agreement, Article on Pay Administration and Displacement; AMAPCEO Memorandum of Agreement, Article on Direct Assignment into Permanent Vacancies;, and implementation of new or revised class standards (see Pay on Assignment Directive) ]
The grievors read the wording “entitlement to revised salary rates as a result of cyclical review of class salary ranges”, set out in boldface above, as indicating that they are entitled to a cyclical review of their class salary range. They note that the document also states that the Management Board Secretariat is responsible for recommending salary rates, ranges and other entitlements for management and excluded classes.
The grievors read the above document together with one entitled “Human Resources Management Directive”, dated February 24, 1999 from the Staffing and Development Branch of MBS which states that:
HR management strategies, polices and practices will:
reflect each public servant’s right to equal treatment and to work free from discrimination and harassment in a safe and healthy workplace
encourage constructive relationships with bargaining agents
embody the values of honesty, integrity, fairness and diversity
place public interest above individual interest
reward innovation and the exercise of good judgment, and
support accountability for achieving business results and fiscal prudence
The grievors submit that it is not reasonable to expect a specific class of employees, such as their own, where problems have been identified, to not get specific attention when they are entitled to equal treatment. In terms of constructive relationships, the grievors believe they should be entitled to some kind of discussion about what happens to them in terms of the identified salary problems, so that the process would embody the values of honesty, integrity, fairness and diversity.
More specifically, the grievors referred to a memo dated May 17 2002 from Jane Corbet, then Director of the HR Strategies branch for Management Board Secretariat. In that memo, she indicated that as a result of recent salary adjustments to numerous OPSEU classifications, they would be reviewing supervisor/subordinate reports to determine the extent of compression and inversion which might have resulted.1 She also asked Human Resources Directors to provide information concerning class relationships which would be adversely affected as a result of the OPSEU adjustments. Further, the memo noted that the plan was to proceed to Management Board of Cabinet in late June for approval of MCP and Excluded salary revisions, and thus the input was requested no later than May 27, 2002. In response to this memo, an e-mail dated May 29, 2002 was sent from Mehdi Kanji to Bonnie Baker of MBS highlighting a number of compression and inversion problems, including several involving nurses at Oak Ridge, some of them identified as severe. The grievors were concerned that it was two days late, and concluded that the matter had gone to cabinet without the information about the nursing issues.
A second memo from Jane Corbet, dated July 5, 2002, announced the revisions approved for MCP classes, including the grievors’ classification of PNR 14. Since the level of the increases did not fix the inversion and compression problems, the grievors’ concern that the information provided by Mr. Kanji was not taken into account was strengthened. The grievors find it inconsistent with the above-noted policies if memos such as Mr. Kanji’s are not taken seriously, and responded to in a reasonable manner. The grievors asserted that the part of the human resources’ role, as defined in the “Human Resources Management Directive”, which was to address the issues of pay and benefits had thus not been carried out. As to the section of the same document entitled “Human Resources Strategies”, defined as “public service initiatives intended to build and revitalize workforce capacity, increase organizational flexibility and improve the workplace environment”, the grievors contend that if they are just lumped into a class category, the strategies are not working as they should. Even if staff evaluate positions continually, the product of this process is flawed, in the grievors’ view.
Similarly, the grievors submitted that even when the government addresses wage compression issues, they do not do so sufficiently. For instance, Mr. Cote, one of the grievors, is a PM14, but did not get compression pay because he did not have the direct reports required, since he is seconded to a software scheduling program which deals with the entire facility. It is his view that since he is dealing with managers, his pay should be higher. He acknowledged in cross-examination that other managers received compression top-ups in December 2003. At the time, he complained of the fact that he did not get it, as he thought the compression pay should have taken into account the level of responsibility he had in managing the software scheduling program, but did not file a grievance. Rather than grieve, he thought managers should be able to talk to Human Resources’ employees and come to some resolution.
Another of the grievors, Mr. Garratt, stated that the grievors feel that the employer’s treatment of them with regards to salary is arbitrary, amounting to an abuse of power. He referred to a memo dated June 5, 1991 which announced funding to address salary compression issues by way of restoring a 5% differential to compressed supervisor/subordinate salary relationships. Within the memo it is clearly identified as an interim solution to an ongoing problem, for which approval was only for the fiscal year 1991/92. Further it states that while it is the intention of the Secretariat to recommend continuation on a year-to-year basis, pending development of a better means to address this problem, there is no certainty as to its extension. The grievors submit that all these years later, the problem has never been properly addressed, making it clear to them that their salaries have never gone through the cyclical review implied in the above documents.
The employer’s witness, Risa Caplan, has held various progressively responsible positions relating to compensation and Human Resources since she joined the Ontario Public Service in 1988. These include the position of corporate compensation specialist, in which role she gave advice to senior management and ministries concerning compensation issues, including revisions to management compensation. She is very familiar with the process involved in the setting of managerial compensation, and described how it operates, including the development of proposals by Human Resources staff for approval by the Civil Service Commission and Management Board of Cabinet, and then the implementation of whatever revisions are properly authorized. In answer to the issues raised in the grievor’s testimony, Ms. Caplan’s evidence established that there is no set cyclical review for managerial salaries or policy relating to a regular review. The salary cycle only means the life of the Order-in-Council providing for the terms of salary for any particular period of time. The length of the cycle has varied greatly, from one year in the 1980’s to 6 years during the period of the Social Contract legislation to 3 years in more recent years. Essentially, the determination of the length of the period comes from the political level of government, although with input from Human Resources staff. Obviously, priorities may vary according to the policies of the government of the day.
Ms. Caplan was closely involved in the salary revisions in 2002, which were the subject of much of the grievors’ evidence. As to the memo dated July 5, 2002 referenced by the grievors, she clarified that they were correct that it did not deal with compression pay, but that did not mean that they were also correct in believing that Mr. Kanji’s input was ignored. Instead, the 2002 memo dealt only with the broad swath of salary increases for the year. Compression pay was dealt with later; as it was necessary to first have the broader increases in place to accurately see where the compression problems were. It then took time to analyze the data collected, formulate a proposal and get the appropriate approvals. According to her uncontradicted evidence, Mr. Kanji’s memo, together with similar input from other Ministries, was closely reviewed and fed into the process of preparation for this second stage of compensation. Ms. Caplan emphasized however that Mr. Kanji’s authority did not go beyond alerting the employer to the issues, which he had done in very clear terms. She also noted that the staff formulating proposals would have looked at data telling them which managers, including Nurse Managers, who had direct reports which were compressing them. The second stage of the process resulted in a memo dated July 31, 2003, which granted compression pay for the period April 1, 2002 to March 21, 2004. The minimum percentage differential between manager and subordinate was fixed at 5%, as it had been in the past, and the a pre-requisite was that a manager have a direct active reporting relationship with an employee to benefit from the compression pay. From the employer’s point of view, this payment addressed the issues raised by the grievors as to compression pay. It may be obvious to remark that it did not deal with it sufficiently generously from the grievors’ point of view, especially as there had previously been differentials considerably higher than 5% at Penetanguishene.
To the grievors’ suggestion that there must be some consideration as to the duties of a position when recommendations as to pay are made, Ms. Caplan replied that central Human Resource staff do not consider individual duties in the process of making salary recommendations. Rather, they are looking at increases across the salary ranges as they are at that time. She mentioned that there are thousands of management employees; the aim is to adjust the salary ranges according to the political will of the day. In answer to a question from the grievors as to what dissatisfied managers can do, she said concerns can be brought to the Human Resources people within the ministries and the management chain of command. If the compensation situation presents operational concerns to more senior managers in the grievors’ ministry, they are able to bring the concerns forward, but there are no guarantees that any specific increase or revision will be granted.
Ms. Caplan’s evidence also dealt with the “Salary Rates/Ranges Directive” which forms part of the grievors’ case. She characterized it as dealing with the “how” and the “who” of the determination of salary ranges and classes. The “how much” aspect of salary determination is set by Order-in-Council, which must be signed by the Minister, the Chair of Management Board of Cabinet. The directive document speaks to pay administration, to guide staff in the “making it happen” of compensation, once it has been approved at the political level by Order-in-Council. It does not set a specific level of compensation or specific terms and conditions of employment. As to the words emphasized by the grievors “entitlement to revised salary rates as a result of cyclical review of class salary ranges”, she offered her understanding of its meaning: the entitlement is not to a cyclical review at any particular interval. Rather, an entitlement to a revised salary rate arises when revised salary rates are authorized as the outcome of any cyclical review that occurs. She noted that Human Resources is responsible to recommend increases for management staff to the Civil Service Commission and Management Board of Cabinet, but is not in a position to authorize them. Further she emphasized that the process is very different from Human Resources responsibility to negotiate changes with bargaining agents. She said there is no written policy as to what Human Resources looks at in researching and formulating salary proposals, that specific direction from more senior management is often verbal.
As to the document entitled “Human Resources Management Directive”, Ms Caplan characterized it as a broad, general statement of the employer’s position on Human Resources management, which contained nothing about specific terms and conditions of employment and did not speak to the particulars of determining salary or other compensation for any specific job class. To her, the wording guaranteeing equal treatment would apply in the salary setting to ensure that anyone entitled to a certain increase would get it, not to guarantee the equal increases to every employee. Further, the definition of “Human Resources Management” which lists many, but not all, of the functions of Human Resources Management, and includes “pay and benefits”, refers to the mechanism of how the government pays out whatever employees are entitled to, not to the fixing of the rates themselves.
In their summation, the grievors indicated that they were not convinced in any way that they had been given an appropriate salary review. They are dissatisfied because the process was not transparent or concrete and are looking for an appropriate review. Based on the discussion at the hearing and the way the grievors have been dealt with over the years, they indicated they still feel they have no real idea of how people come up with the results they come up with, with the result that it looks arbitrary to them. For example, they mentioned that they never see the flow of information either way, e.g. what information is asked for or considered when salary proposals are created and revised. Further, when a global percentage is applied to their salary class they feel at the whim of a process that does not give sufficient importance to the work they perform and the kind of clients they deal with in a maximum security psychiatric facility. They feel their work is improperly assessed, and that there is no redress for them.
Employer counsel argued that the grievors had not made out their case, as they have not established an entitlement to anything that they were not granted. She noted that they were upset after the OPSEU strike in 2002 when the settlement arrived at for OPSEU bargaining unit members caused compression and inversion problems. They raised the problem; Mr. Kanji made a concerted effort on the issue as well. The response was an inversion and compression memo, which reinstated compression pay, effective April 1, 2002. Referring to Ms. Caplan’s evidence, she said that the process involved for setting managerial compensation does not involve direct input from managers at the grievors’ level. Rather, it is their Ministry who makes the case for managerial increases to those within the central Human Resources group who have the authority to recommend compensation revisions for approval by the Civil Service Commission and Management Board of Cabinet. The various documents in evidence should not be found to be terms and conditions of the grievors’ employment, in the employer’s submission; they simply describe how business is done on certain issues.
Returning to the question before me, the principal issue to be determined is whether the grievors were deprived of a salary review to which they were entitled. The secondary question is whether they were treated arbitrarily, abusively or in bad faith in the process applied to them. The grievors urge the Board to interpret the documents above as a basis for a finding that they did not get a salary review to which they are entitled; they are looking for one which lives up to the various human resource policies and documents in evidence. Having carefully reviewed those documents in light of the arguments made in this case, it is my finding that none of those policies actually provides for a specific type or process of salary review. The question: “What are the grievors entitled to by way of salary review?”, is not answered in these documents. There are no specific provisions that go as far as entitling anyone to a review of a certain kind or at a certain interval. The specific sections of the documents on pay administration and human resources management mentioned by the grievors are not of that specific nature. Nor do they together add up to such an entitlement. Nonetheless, the evidence is that the employer does do salary reviews; although not at a fixed interval. Further, the details of how they occur are not set out in a written policy.
However, the evidence demonstrates that the grievors have been part of the cyclical salary review engaged in by the employer at intervals determined by a variety of factors, including the expiry date of the previous Order-in-Council determining managerial compensation and the priorities of the government of the day. They were treated in the same fashion as other managers, in that the process of considering input from all Ministries was applied to them, and the pay administration policies were implemented so that they received the benefit of the authorized salary revisions, including some relief on the compression issue. The input from the grievors’ ministry, most specifically Mr. Kanji’s memo, had specifically mentioned the compression problems that are a major part of the grievors’ concerns, and generally concluded that if special adjustments were not forthcoming “severe compression and even inversion problems” would be created. Thus, I do not find that their concerns were ignored by the employer or that they were excluded from the salary review process in place.
It is not necessary to make a determination as to whether the unwritten salary review procedure or the provisions of the various documents in evidence should be considered as terms or conditions of the grievors’ employment, because I am not persuaded that they were denied the benefit of the policies, directives and provisions of the various documents before me or of the employer’s salary review procedure. And there is no evidence of any other policy, legislation or agreement which entitles them to some different kind of salary review.
The real nub of the problem is that the outcome of the employer’s salary review process has not to date valued the grievors’ jobs as highly as they are convinced is appropriate to the responsibilities of their positions. It is clear from the employer’s evidence however, that the cyclical salary reviews do not review positions at that level of detail. Nor is there any policy before me that would indicate that the grievors are entitled to such a detailed review at any pre-determined point. Although the grievors are not seeking a reclassification in this grievance, their dissatisfaction with the level of the review of their jobs has much about it that invites a level of analysis of the details of job duties and responsibilities often seen in the context of a review of whether a job is properly classified. As noted in the preliminary decision, further to s. 31(4) of Regulation 977 to The Public Service Act, this is something the Board simply has no jurisdiction to deal with. Similarly, the submissions of the grievors to the effect that the current salary review process is flawed, could be improved, or results in a flawed result as to appreciation of the grievors’ very challenging work environment, are not things the Board has power to remedy.
There remains the question of whether the grievors were treated arbitrarily, discriminatorily, abusively or in bad faith in the salary review process. I do not find that the evidence supports such a conclusion. Rather, as noted above, the evidence supports a finding that the salary review process, although more limited than the grievors would have liked, was applied to them in the same manner as to other managers. The process appears arbitrary to the grievors because they are not privy to the inner workings of the process of salary review and the formulation of proposals for salary revision. This perception is not sufficient to justify a finding that there is anything arbitrary, discriminatory, abusive, or in bad faith about the existing salary review process as applied to the grievors.
For all the above reasons, the grievance is dismissed.
Dated at Toronto this 7th day of December, 2005