P-2004-0267

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Ronkai 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 GRIEVOR

Zoltan Ronkai

FOR THE EMPLOYER

Len Hatzis Counsel Management Board Secretariat

HEARING

December 13, 2004.

Decision

This decision deals with the preliminary objection of the employer to the effect that the Board has no jurisdiction to hear the merits of the grievance before me which complains of the revamping of the benefit system for non-bargaining unit employees, which took place in early 2004. The group of grievors contest two aspects of the changes, as affecting the OM 16 group at Maplehurst Correctional Centre:

1. The reduction of the number of orthopaedic shoes to one per year, rather than the two that had previously been available,
2. The removal of the Employment Insurance premium refund which had customarily been received in cash in the third quarter of each year. Instead, the money was rolled into benefits.

The employer objects to the hearing of this matter on the basis that the grievor cannot point to any provision of the Public Service Act that is being violated, and that what is being sought is the same level of benefits as received by Correctional Officers within the OPSEU bargaining unit. Further it is said that the issue of the shoes is premature, as the employer has said they will consider the provision of additional shoes in the future. As to the Employment Insurance premium issue, employer counsel maintained that the grievors have failed to show a specific obligation that has been violated by the employer. He suggested that the grievors’ recourse is to complain to their Member of Parliament or file a civil action, but that there was no jurisdiction in the PSGB.

The grievance is worded as follows (in most relevant part):

Recently all managers received notification that our benefits package has changed. It was disappointing to see that several things changed for the worse. The orthopaedic shoes entitlement was reduced from three to one per year, and our EI overpayment refund is going to be taken away from us.

It has been the policy of the government that the management group would be treated the same or better than the CO2 group for the purpose of benefit packages. The changes that have been introduced in the recent proposals put us below the benefits of our unionized employees.

We the undersigned Operational managers (OM16) at Maplehurst C.C. grieve that this is discriminatory to the management group and we ask that all our benefits be brought up at least to the scale of what the CO2 are given or better.

Mr. Ronkai responds to the employer’s position saying that the parallel drawn in the grievance to the union is not the essence of the case. Rather, it is that the government has previously recognized that walking eight to twelve hours a day on cement causes a need for orthopaedic shoes, at least two pairs per year. He refers to a memo which was released after the change to the benefit plan which allowed an additional pair for the first year of the change, and stated that the utilization of orthopaedic shoes and orthotics would be monitored to determine if any further amendment to the plan is required in the future. He sees this as evidence that the employer has acknowledged the validity of their concern about proper footwear for their work.

As to the issue of the Employment Insurance refund, Mr. Ronkai stated that it was a matter of how the federal law is applied by the provincial government. He filed excerpts from the Employment Insurance Act, and from what appears to be Karen L. Rudner’s work, Annotated Employment Insurance Statutes, referring in particular to the following remarks from that text concerning premium reductions to eligible employers:

At least 5/12 of the amount of a premium reduction must be passed on to the employees in some form, either by way of cash or benefits. The 5/12 fraction represents the employee share of the total unemployment premium where there is no premium reduction. The reason the employee must receive a portion of the premium reduction is to maintain the same ratio of employee cost to total cost where the employer benefits from a premium reduction. Whiles s. 69 does not require the employer to advise the employees of the benefit owed to them or of the nature of the benefit, neither does it give the employer absolute discretion as to the form of the benefits. There should be a consultation with the employees and, in the absence of agreement, the benefit should be conferred in cash. The statutory obligation that the employees benefit is not proved by the employer merely stating that the employees’ share of the reduction was granted to them by way of fringe benefits. Once the employees prove their entitlement, it is for the employer to prove, “by a preponderance of evidence, that it has provided to its employees (as a direct result of this reduction in premium) a benefit worth 5/12 of the value of that reduction.” Reductions in premium should perhaps be paid according to an agreement between employer and employees. Failing an agreement, the employer may be obligated to pay the employees their share of the reduction at the end of the employer’s fiscal year, or whenever an employee ceases employment with the employer.

Mr. Ronkai indicated that since employees are not able to apply directly to the Employment Insurance Commission to remedy the problem, the grievors are looking for a remedy from the PSGB. They contend the employer did neither a consultation nor an agreement with the employees. Since there is no representative body for the OM16’s, and it would be too onerous to consult every individual, it is submitted that the employer should pay the amount out in cash, as it always has in the past.

The grievor refers to s. 69 of the federal Employment Insurance Act and the regulations made under its authority, which provide for the reduction in premiums otherwise payable under that law to employers who have provided eligible benefit plans, and who have applied to and been approved by the Employment Insurance Commission. For example, Reg. 68(1) provides as follows:

An application for a reduction of the employer's premium in respect of a category of insured persons shall be made to the Commission by an employer and shall

(a) be accompanied by a copy of the documents that represent the formal commitment referred to in subsection 67(1) or, where those documents have been provided to the Commission with a previous application and have since been amended, by a copy of the amendment;

(b) provide all the information necessary to determine whether the plan meets the requirements of this Part; and

(c) be accompanied by the employer's undertaking that the insured persons will benefit from the reduction of the employer's premium in an amount at least equal to five twelfths of the reduction, as required by subsection 69(1) of the Act.

Employer counsel’s submission to the effect that the grievor has not pointed to the violation of any term of The Public Service Act or Regulation 977 thereunder, is essentially an argument that there is no prima facie case that there has been a violation of any term or condition of the grievors’ employment, which the PSGB would have authority to remedy. In order to find that there is a prima facie case, there must be the assertion of sufficient facts, which if proven, could establish a breach of a term or condition of employment that ought to be remedied.

To start, dealing with the first prong of the grievance, concerning the provision of orthopaedic shoes, it is well established that comparison to the collective agreement provisions or policy applicable to the bargaining unit is not an appropriate basis for a grievance by managers under the Public Service Act, and I am asked to dismiss on this basis. See, for instance, the decisions referred to by employer counsel: PSGB 0006-01 Group Grievance, 0028-99 Smith, P0003-98, Newman et. al. There is nothing before me that persuades me that those decisions should not be followed in this case.

Despite this jurisprudence, however, the grievor submits that the comparison to the correctional officers is valid to the extent that it shows that the employer recognizes that special shoes are important to employees who walk on cement for a good deal of their working day, a working condition also applicable to managers. Since the PSGB is the only venue that the managers have to challenge policy, I am urged to take jurisdiction, as it is an issue of fairness and prejudice to the managers, as the managers are not currently entitled to claim footwear at the same level as the correctional officers.

The question before me is whether there is a term or condition of employment applicable to the grievors, who are not members of the bargaining unit, which has been violated. Although in the most general sense, walking on cement is a “condition of employment”, and the grievors are clearly aggrieved about the fact that they are not guaranteed the same number of orthopaedic shoes as before, it is not my view that this is sufficient to allow this matter to proceed. The claim, as written and argued, is largely based on the comparison to the provisions covering the correctional officers in the bargaining unit. As noted, the jurisprudence of this Board is abundantly clear that this is not a basis on which it can take jurisdiction of a manager’s complaint. Thus, to the extent the instant grievance is based on an argument of fairness based on a comparison with the bargaining unit, it is dismissed.

To the extent that it is an independent grievance about requiring managers to do a job which requires walking on cement without providing the same number of orthopaedic shoes as in earlier years, I have not been shown any term or condition of employment, in the sense of items currently a matter of policy, contract, statute, regulation or representation to the managers, that has been violated. It was not suggested that the employer was not allowed to make changes to the benefit package; it is the nature of the change that is objectionable to the grievors. The employer has communicated with the managers, indicating an openness to consider the issue on an ongoing basis, but this is not a foundation for legal entitlement at the moment. In sum, I do not find a sufficient basis to allow the issue of the orthopaedic shoes to go forward to hearing.

Further, the grievor submits that the portion of the grievance relating to the Employment Insurance rebate is severable, and should be heard by this Board, even if the claim relating to the footwear is not.

I am willing to assume, for the purposes of this decision, without finding, since the parties did not directly address the point, that the provisions of The Employment Insurance Act, should be considered a term of the grievors’ employment. The question then becomes whether there are sufficient facts before me to suggest that there was some breach in converting from a cash rebate to investments in the benefit plan. The law clearly allows an eligible employer to make such a change, and the grievors do not suggest that the employer here is not eligible. They wish the Board to find that there is an obligation to consult employees, reach agreement, or pay the rebate in cash, referring, as noted, to the text excerpted above. The quotation above stating that it is for the employer to prove the employees have received the appropriate level of benefit, and the idea that, absent a consultation, the employer should pay the premium reduction in cash, can be found in an oral decision of MacDonald, J. of the Nova Scotia Trial Division in Beaver vs. Metropolitan Authority, 1990 CanLII 4172 (NS SC), [1990] 32 C.C.E.L. 215 (NSTD). That decision is distinguishable from the situation before me, as it was based on a factual finding by the judge to the effect that that the employees had not clearly received the appropriate level of benefit. By contrast, there are no facts asserted before me that, if proven, would be sufficient for me to come to a similar conclusion. There is mainly the assertion that if there is no consultation process or agreement to rolling the premium reduction into benefits, the employer should pay in cash. As well, Mr. Ronkai makes reference to the fact that there was an agreement with OPSEU as to rolling the rebate into benefits, which, he argues, shows that the employer is aware of its obligation to consult or obtain agreement. The provisions of the statute before me, alone, do not provide such a process as of right, in my view, and, as noted above, the fact that the employer engaged in such a process with the bargaining unit’s representatives is not a reason for the Board to require such a process for the managers. Thus, I am not persuaded, on the factual basis and material asserted before me, that it would be appropriate to come to the same conclusion as the court in the above-noted case. Therefore, although I agree that the question of the Employment Insurance rebate is severable from the question of the orthopaedic shoes, I do not find that a prima facie case for the remedy requested has been made out on this prong of the grievance either.

For the above-noted reasons, the grievance is dismissed.

Dated at Toronto this 2nd day of March, 2005