P-2005-2314, P-2005-2786

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Kevin Ransome

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

Kevin Ransome

FOR THE EMPLOYER

George Parris Counsel Ministry of Government Services

HEARING

October 30, 2006.

Decision

This decision deals with the employer’s preliminary objection, in which the employer argues that the grievance should be dismissed at the outset, without a hearing on the merits. The grievor claims that he and other similarly situated managers in the ambulance call centres run by the province are being paid in a manner which breaches their terms and conditions of employment and is discriminatory. His position is that the employer breached its obligation to maintain fair and equitable working conditions as outlined in employer policy and other documents referred to at the hearing, which will be dealt with below.

The grievor’s well-documented presentation dealt with the history of pay level comparisons between managers and the bargaining unit, and among managers going back to 1999. He referred to an external review of the Hamilton ambulance call centre in 2001 which reported a general level of job and wage dissatisfaction among both communications staff and managers, associated with the fact that Ministry-operated emergency dispatch centres were paying considerably lower wages for relatively higher workloads than comparable dispatch centres. More competitive wage rates were among the key recommendations of that review. Significant increases to the wages of the bargaining unit classifications followed in 2002, 2004 and 2005, totalling 30%. As for the managerial ranks, the classification of OM14 was reclassified upwards to OM16 with a 3% increase effective August 2004.

Mr. Ransome’s wage rate has been less than that of the top rate of the classification reporting to him since 2001, according to a chart he prepared. When people are promoted out of the bargaining unit, they are entitled to receive a minimum 3% promotional increase, which exacerbates the situation, creating the additional effect of some managers with less experience earning considerably more than managers with more experience. The frustration felt by the grievor and others in similar situations is obvious.

As argued at the hearing, the grievor’s main concern is the fact that managers promoted later than he was are being paid more than he is. This is the result of the fact that the employer’s Pay on Assignment policy provides for a minimum 3% increase on promotion. The managers who are making more than the grievor, despite less service as a manager, were promoted out of the bargaining unit after they had received the significant wage increases noted above which the grievor did not receive as he was no longer in the bargaining unit. As a matter of arithmetic, and the fact that the promotional increase is a percentage, when it was applied to a higher base, it produced a higher entrance salary than the grievor’s salary after several years as a manager. He is firmly of the view that this represents an inequitable and unfair condition of employment that should be remedied by the Board.

The employer argues, in essence, that the grievor has not put forward a sufficient basis of facts that if proven, would entitle him to the remedy he seeks. Most specifically, in the employer’s view, the grievor has not identified a promised level of salary that has not been provided. Counsel argues that the extracts from policy referred to do not entitle him to what he is seeking, namely, that no manager hired after him should make more than he does.

For the purpose of this motion, I accept all the facts asserted by Mr. Ransome, the grievor, as true and provable. The grievor relies on a number of employer policies and directives as the location of the terms and conditions of employment he is asking the Board to enforce, as he believes they have been breached by allowing the pay situation outlined above to exist. Firstly, the grievor referred to the governments published “OPS Mission and Organizational Values” among which is the following statement on fairness:

We deal with others in an open, impartial and non-discriminatory manner. We ensure that the processes we use and the decisions we make are fair and seen to be fair.

The Pay on Assignment Operating Policy provides as its purpose:

To ensure that employees are paid equitably in keeping with pay principles, policies and collective agreements for permanent and temporary assignments, and to ensure that discretionary pay decisions are defensible.

Under the heading “Principles”, the following appears:

Employees should be paid equitably in their assigned salary ranges, taking into account such factors as skills and job-related experience, relationships to peers and career progression.

Under the heading “Mandatory Requirements” the following wording can be found:

Employees must receive all salaries and entitlements they are eligible for that apply to the class of their position.

A document entitled Human Resources Management Directive provides the following:

The Ontario Public Service (OPS) strives to be an organization that demonstrates dedication and excellence in serving the people of Ontario and their elected representatives. It is a workplace where employees will feel valued and can build challenging and rewarding careers.

Flexible human resources (HR) management policies and practices are required to enable the OPS to respond quickly and effectively to new challenges in a rapidly changing environment.

Under the heading “Principles”, the same document provides that:

HR management strategies, policies and practices will:…. Embody the values of honest, integrity, fairness and diversity.

The grievor does not feel valued in the existing salary situation and does not feel that the HR policies which affect him are sufficiently flexible to adequately deal with the changes in the salary environment, nor does he consider the management strategies involved to have embodied the value of fairness. Further, the consistency, fairness and equity espoused in the Classification and Position Administration Guideline have not been adhered to in the grievor’s view. In particular he finds it inconsistent to have later hired managers paid more than earlier hired managers. He argues that the various salary levels should have been reviewed to make sure that the “adverse effect discrimination” against managers in his position did not occur. He notes that the Salary Rates/Ranges Directive provides under the heading “Principles” that pay administration will be consistent with approved compensation practices and recognize the managers’ responsibility to manage, and that Pay administration will contribute to the attraction and retention of competent employees.

In his concluding remarks, the grievor submitted that although his claim may look like it concerns classification as in the Garratt case, [Garratt, et al. and the Crown in Right of Ontario (Ministry of Health and Long Term Care) P-2003-1670 (O’Neil), decision on the preliminary objection dated May 17, 2005 and on the merits dated December 7, 2005], it is really just challenging the different treatment depending on when managers were hired. Further, he argues that it is in the Board’s jurisdiction to remedy this working condition, because it is discriminatory to have newly promoted people making more than those promoted later.

The grievor relied on the following cases of to support his argument that the Board had jurisdiction to remedy his grievance. Kanga v. The Crown in Right of Ontario (Ministry of Health) No. P/0003/85, June 20, 1986; Gleason and The Crown in Right of Ontario (Ministry of Community Safety, P/0040/92, February 20, 1998.

Employer counsel replied that even if one does not dispute that the wage comparisons complained of are unfortunate, they do not constitute a breach of any term or condition of employment. The employer’s position is that compliance with the two separate methods of pay determination for bargaining unit and managerial staff has created the situation complained of, but there is no sufficient basis for the Board to remedy that.

Counsel referred to the Board’s decision in Hill et. al. and The Crown in Right of Ontario (Ministry of Community Safety), P-2004-3699, August 25, 2006, which dealt with the complaint that other managers were paid at a higher rate for overtime than required, and than the grievors had been paid. In that case, the Board dismissed the grievance as there was no evidence that the grievors had not been paid in accordance with their own terms and conditions of employment as to pay. Further, counsel referred to a case involving a group of managers with the Ministry of Finance, where the grievance was dismissed, even where the Board found that the employer had made a bad business decision, but it was not considered either bad faith or a breach of a term or condition of the grievors’ employment. See: Ascott, Arblaster, Benedict, Brooks, Chol, Duncan, Duhig, Hogarth, Kawall, Koss, Longden, Mah, Montle and Young v. Her Majesty the Queen in Right of the Province of Ontario (Ministry of Finance) (November 25, 2002), No. 133/200 1 (S.C.J.), the report of the unsuccessful judicial review application of the Board’s decision in Group Managers, Ministry of Finance and The Crown in Right of Ontario, (Ministry of Finance) (October 2, 2000), No. P/0020/99 (P.S.G.B.). As in other cases before the Board, the employer sees the grievor as asking that the Board rewrite the pay on assignment or other pay policies, since there is no dispute that the grievor received the applicable promotional increase at the time he was promoted.

Additional Board decisions not cited above, relied on to support the employer’s request for the dismissal of the grievance, included: Koons, Stewart, Wootton, Smalley and Sivier v. The Crown in Right of Ontario (Ministry of Correctional Services) (February 9, 1988), No.P/0013/87) (P.S.G.B.); Harris et al. v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) ,December 22, 2005, Nos. P-2003-1479, P-2004-0837, P-2004- 1528, P-2004- 1720, P-2004- 1721, P-2004- 1994, P-2004-23 80, P-2004-3699 (P.S.G.B.); and Smalley v. Ministry of Correctional Services (September 8, 1986), No. P/0013/85 (P.S.G.B.). See also Drakos. and the Crown in Right of Ontario (Ministry of Community Safety and Corrections) , August 25, 2006, P-2004-1721 (O’Neil); and Woodward. and the Crown in Right of Ontario (Ministry of Community and Social Services), April 4, 2006, P-2005-1853 (O’Neil) for cases with similar themes.

Having carefully reviewed the material and arguments before me, it is my finding that the employer’s motion should be granted, as it is clear that the grievance cannot succeed. This is because the material submitted does not establish that it is a term or condition of his employment that the grievor is entitled to be paid not less than others promoted after him or that he should be paid more or differently than he is being paid, or that his pay treatment is discriminatory, arbitrary or in bad faith.

The issue is primarily a question of contract law. The Board must answer the question: Is it a term or condition of the grievor’s contract with the employer that he should be paid the additional money he claims? It is clear that there is no specific provision which the grievor has identified that would entitle him to the significant wage increases he claims. His grievance is rooted instead in the general statements in the employer policy and guidelines about fairness and equity, which for the purposes of this motion will be assumed to form part of the grievor’s contract of employment. However, they are general statements of intention, with no promise to the grievor that sufficiently addresses his claim. What is fair is a question about which people frequently differ, often with well-thought out reasons for their view. It is important to look at the provisions of those policies to see if they provide the answer to the question: what is a fair wage for this grievor? Having done so, the Board finds that there is no answer to be found in the documents submitted anywhere near specific enough to grant the grievor what he claims. The grievor’s answer to that question is to the effect that a fair wage would be one that afforded him essentially the same increases as the bargaining unit received, at a time when he was not a member of the bargaining unit, and/or a wage that guarantees that he is not paid less than managers promoted later than he was. Although he is certainly entitled to that view, his contract of employment, on the material before me, does not contain a promise to that effect.

As noted, as argued at the hearing, the grievor’s complaint concerned the comparison of his wages with others in his own classification. However, the written submission to the Board dated November 7, 2005 was framed in large part as a complaint about the relationship of the grievors’ wages with those of the bargaining unit positions who report to him, and the fact that the rate of increase in the managerial ranks had not kept up with those of the bargaining unit. In that document, the grievor asked for wage increases to the OM14 and OM16 classifications retroactive to 2002. The claim as written is not one the Board is in a position to grant either, as the Board has no power to award wage increases, only to enforce established terms and conditions, including those dealing with pay.If the grievor had shown that the employer had agreed to pay a wage increase that he did not receive, then the Board could enforce the agreed wage increase. The material before me does not establish such an agreed or promised wage increase, nor one that he is entitled to on more general principles of fairness.

Especially in the managerial setting, where contracts of employment are not collective, but individual, it is not enough to say that it is fair or would be more fair if a grievor was paid more, or not less, than some other employee. In order to succeed, a grievance must show that the difference is improper, either because it offends a specific term or condition of employment, or some more general principle of law. In that respect, the grievor argued that the difference is discriminatory. However, there is nothing to suggest that the differential in payment was for an improper reason, such as discrimination on the basis of race, gender, religion or some other identified illegal ground, or that the decision to pay the grievor in the manner that it has, was somehow arbitrary, or in bad faith. The facts before me indicate that the grievor was paid in accordance with the Pay On Assignment policy when he was promoted into management and there is nothing to suggest he has not been paid according to the other pay provisions applicable to his classification since. What he argues is that there should be a term or condition of his employment that would ensure he was paid better than those promoted or hired later. This is a complaint about the absence of a term or condition of employment of the kind he would like, rather than a request to remedy a breach of an identifiable existing term or condition of his employment. The facts before me simply do not form a sufficient basis for such an argument to succeed. What the grievor is claiming would be tantamount to creating a term or condition of employment, rather than awarding a remedy for the breach of an existing term or condition of employment.

To summarize, although I agree with the grievor that the Board has jurisdiction over his complaint, it is clear that it is not a complaint that can succeed. In the result the employer’s motion is successful, and the grievance is dismissed, because, even assuming all the facts the grievor asserts as true, there is an insufficient basis in law, to award the remedy requested. In other words, a prima facie case for the grievance to succeed has not been established.

As with many cases that come before the Board, several of which are cited above, the grievor’s dissatisfaction with the situation is very understandable. However, the employer is entitled to set the terms of employment for managers in light of its estimation of what is required to retain sufficient competent staff, and the Board is not entitled to “remedy” a situation unless it finds a breach of an established term or condition or employment, or a sufficient basis to conclude that the employer conduct is arbitrary, in bad faith, or discriminatory in the sense of based on some illegal ground. For the reasons set out above, this is not such a case.

In the result, the grievance is dismissed.

Dated at Toronto this 5^th day of December, 2006