P- 2005-1853

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Mark Woodward et al.

Grievor

• and -

The Crown in Right of Ontario (Ministry of Community and Social Services)

Employer

BEFORE

Kathleen G. O’Neil

Vice-Chair

FOR THE GRIEVOR

Mark Woodward, Faye Code, Pam Carter (Grievors)

FOR THE EMPLOYER

Janice Campbell Counsel Ministry of Government Services

HEARING

January 31, 2006.

Decision

This decision deals with preliminary motions brought by the employer in respect of grievances related to overtime pay during the 2002 OPSEU strike. The grievors are managers employed at three Developmental Services Facilities run by the Ministry of Community and Social Services (MCSS) – the Huronia, Rideau and Southwestern Regional Centres. Mr. Woodward introduced himself as the representative for over a hundred managers whose names are listed as grievors in the material filed with the Board. The issue in dispute arises from the fact that managers who worked in correctional facilities during the 2002 strike, including some managers redeployed from MCSS, received double time for all hours worked, whereas the grievors received double time only for authorized hours worked over 36.25, if they worked a minimum of forty-four hours in a week. The general thrust of the grievances is that it is unfair to create a distinction between managers who worked in developmental services facilities and those who worked in correctional institutions.

The grievors made reference to many facts in support of their grievance, all of which are accepted as true and provable for the purpose of the consideration of the preliminary motions. The documentary basis for the grievance is an amendment made to Regulation 977 dated April 23, 2002 entitled “New or Revised Entitlements for Manager, Senior Management and Excluded Employees during a Strike or Lockout”. This amendment increased the overtime rate from time and one half to two times the hourly rate for managers working in facilities run by MCSS (previously known as Ministry of Community, Family and Children Services), the Ministry of Public Safety and Security (MPSS) and the Ministry of Health and Long Term Care (MOHLTC). It is not disputed that managers in correctional facilities were paid double time for all hours worked during the strike if they had worked a threshold of forty-four hours in a week. The grievors also rely on what they believe were the terms of a settlement with another MCSS manager, granting him double time for strike work. The grievors have been denied access to these terms, but ask the Board to review the settlement. Other facts included in the grievors’ submissions to support their claim that the distinction made in overtime payment was inequitable include the challenging clientele in the MCSS facilities, whose unpredictable and sometimes violent behaviour has to be dealt with without the option of locking people down, something available to those who work in correctional facilities. As well, the working conditions during the strike were particularly hard, involving very lengthy shifts, and instructions not to travel further than 30 minutes away from the facility in order to be prepared to return immediately if needed, difficulties with the picket line leading to managers’ sleeping at the facility rather than risk being unable to attend on time for the next shift, as well as very short turnaround times between shifts. Families of managers were negatively impacted as well.

Employer Preliminary Objections

The employer submits that the Public Service Act does not recognize group grievances, that the grievances were not filed within the time limits set out in The Public Service Act, and that the grievances are without adequate foundation, in that they do not make out a prima facie basis for the remedies claimed.

1. No jurisdiction over group grievances

As to the objection to a group grievance, counsel relies on the wording of s. 34(1) of Regulation 977 under The Public Service Act as follows:

34. (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).

4. The grievance must set out the reasons for the person’s complaint about the working condition or term of employment. O. Reg. 168/96, s. 6 (1).

Counsel says that the Act speaks only of a “person” being able to grieve, and does not provide for group grievances. Counsel notes that there are no signatures for the great majority of the people listed as members of the group, and nothing showing that these individuals agreed to be on the list represented by Mr. Woodward. There is no written acknowledgment that they would be bound by the decision or to conclude that they were parties to the grievance. Further, the individuals on the lists have not set out their reasons as required in s. 34(4). Counsel argues that the grievors have chosen to ignore the grievance procedure set out in the legislation, and thus, as currently filed, the grievances are beyond the jurisdiction of the Board. In the alternative, counsel argues there are only three grievances properly before the Board, those of the people whose signatures appear on each of the three grievance letters submitted, each with a separate list of names.

The grievors’ understanding was that the people on the list had been contacted by phone or e-mail and asked if they were “on board” to grieve, and that in contacting in that way they were trying to meet the 14 day count-down from when they realized that managers working in correctional facilities had been paid more during the strike. Further, Mr. Woodward represented the grievors at Stage 2 and was recognized by the Deputy Minister without objection. The employer never raised any objection until the hearing and should not be able to do so now, in the grievors’ submission. Further, the grievors submit that, as Managers, when dealing with OPSEU and AMAPCEO they try to take the approach of dealing with the merits of the grievance, rather than defeating it on the basis of the form of the filing, which is how they submit this matter should be handled.

Since there are three signed grievances before the Board, with detailed reasons, there is jurisdiction to deal with the merits of the complaint. Given the decision below, it is not necessary to comment further on the group grievance issue.

2. Timeliness

The employer’s timeliness objection is based on the submission that the grievances were filed well after the 14-day time limit set out in s. 34(1) of Regulation 977, set out above. It was submitted that the case law is now well established that the onus is on the grievor to establish grounds for any extension of time beyond those time limits, and compelling reasons are required. Although those appearing state they were not aware of the situation until shortly before the grievances were filed in 2005, counsel submits that it is unreasonable to assume that all of the over 100 people listed as grievors did not know that corrections managers were paid differently from MCSS managers until years later. She noted that some of the people listed worked in Human Resources or payroll as well, and that employees of MCSS had family and friends working in correctional facilities. Further, there is no evidence or statements from all of the people on the list that they did not know of the difference in pay until the time of the grievance. Without some evidence to establish a bona fide basis for the delay, counsel submits that the grievance should be dismissed as untimely. Further, the employer argues that the grievances cannot be considered as continuing ones, and that the grievances do not raises issue of the serious nature that has called for extensions of time in other cases, such as human rights issues, harassment or dismissal. As well, counsel asserts that the employer would be prejudiced in presenting its case after such a lengthy delay.

The grievors present at the hearing responded with the facts within their knowledge, which included that even people who worked in Human Resources for MCSS were not aware that managers in correctional facilities were paid double time for all hours during the strike until much later. Further, the subject of managerial overtime was not much discussed at the workplace when the strike was over, out of respect for bargaining unit members who had been without pay for two months. There was no reason to question the overtime payments until 2005, following workshops in preparation for a potential labour disruption in that year, during which remarks were made about discrepancies in overtime payments from the last strike. As well, there was discussion about a settlement with another MCSS manager, the terms of which were confidential, but which the grievors believe contained consideration for the way MCSS managers were paid overtime during the strike. Then the grievors became aware that there must have been a general discrepancy in the payment of overtime during the strike when the Ministry’s list of those making more than $100,000 were accessed shortly before the grievance was filed. The list showed that some MCSS managers redeployed to correctional facilities earned considerably more than those who had remained in MCSS facilities during the strike. When managers involved confirmed that managers working in correctional facilities were paid on a more generous basis, the grievance was filed. Thus, it is the grievors’ submission that they acted in a timely manner when they became aware of the different treatment they had received. Since the time lines in s. 34(1) do not start running until a grievor is aware of the complaint, the Board is urged not to dismiss the grievance on the basis of timeliness.

Given the decision below on the issue of the legal foundation for the claim, it is not necessary to rule on the timeliness objection.

3. No prima facie case

The third basis on which the employer argues that the grievances should be dismissed is 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. The employer’s basic assertion is that the grievors have identified no contractual promise, term or condition or employment made to the grievors that they would be paid double time for all hours worked during the 2002 strike. The employer underlines that the only potential basis for their claim is the amendment to Regulation 977 which provided for double payment for overtime as defined in the policy, but since all the grievors were paid in accordance with it, no remedy is available flowing from that regulation.

Employer counsel refers to Macklin et. al and the Ministry of the Solicitor General and Correctional Services, (Leighton) [PSGB file numbers P/0100, 0101, 0102, 0104 and 0105/96], a decision dealing with claims for various payments arising from the 1996 OPSEU strike. The main thrust of those claims was that one set of managers in correctional institutions had not been paid as well as others in terms of overtime, i.e. one set of managers was paid at overtime rates for the entire strike period, while others were not. As in the facts of the current grievances, the grievors had been paid in accordance with the overtime provision then in effect. Further, they acknowledged in that case that they had never been promised that they would be paid overtime for the entire strike. In regards to the fact that managers at a different correctional institution had been paid more than was required by the overtime provisions, the Board held that the more generous payments were in addition to their entitlement, and “the decision to do more than what is required is at the discretion of the employer.” Counsel stresses that the Board found that the fact that one set of managers was paid over and above their minimum entitlement did not create an obligation to pay other managers on the same basis, even within the same Ministry. Further, the employer submits that no facts have been put forward that show that the MCSS managers were dealt with in bad faith, or in an illegal differential manner. In the result, counsel argues that no prima facie case has been established, and that the matter ought to be dismissed.

The grievors respond that their complaint lies in the inequity and discrimination about their salary, which falls into the category of working conditions and terms of employment about which they are entitled to grieve. The MCSS managers feel that they had a special job to carry out during the strike, as did the managers in correctional facilities, and that there is no reason that they should be paid less. They submit that they worked equally hard as those working in correctional facilities, carrying out their mandate in homes for the developmentally handicapped, ensuring the safety of all while dealing with the residents’ escalating behaviour. The grievors feel it is discriminatory because the differential in pay is a statement that the work of those deployed to correctional facilities was of greater value than their own work. The grievors argue that the intention of the regulation was for all management employees working in the identified Schedule 9 facilities to be treated equally, and that the interpretation of the amendment applied in the correctional facilities should be applied to them. They also rely on the decision in the case of Mously, Lister Watson and the Ministry of the Solicitor General and Correctional Services, (Leighton) [PSGB file numbers P/0068, 0171, and 0172/96] dated April 24, 1998 which they assert supports the need for equity and fairness in compensation for OPS managers across schedules.

In the Board’s view, the grievances should be dismissed because, even assuming the facts asserted to be true and provable, there is not a sufficient basis for the grievors’ claim to succeed. There is no assertion that any of the grievors were paid something less than what was promised by the amendment to Regulation 977 which applied to overtime worked during the strike. It is the Board’s view that in order to have a viable grievance to the effect that they should have received more than that, the grievors would have to demonstrate that they had a term or condition of employment that promised more than that, and that they did not receive it, which is not the case for any of the grievors. The basis for the grievance is essentially that managers working in correctional facitiliies during the 2002 strike were paid for overtime more generously than those in the MCSS facilities. The grievors submitted that this was an interpretation of the regulation that should have been applied to them. However, there is no suggestion that there was ever a promise, policy, regulation or some identifiable practice or precedent that could amount to a term or condition of employment to the effect that managers working in one ministry must be paid no less generously for overtime during a strike than managers in another ministry or setting.

As in the Macklin case, cited above, even within the same Ministry, the Board has held that payments over and above a manager’s entitlement are within managerial discretion: The fact that other managers were paid more is not a sufficient legal basis for a grievance to succeed, without some fact suggesting that there was an improper reason for such a difference, such as discrimination on the basis of race, gender, religion or some other identified illegal ground, or that the decision to pay the grievors what was required under the regulation at the time, rather than more, was somehow arbitrary, or in bad faith. The facts before me do not form a sufficient basis for such a finding.

The Board is empowered to make findings of fact as to what the terms and conditions of employment for managers are, including their pay provisions, when that is disputed, and to enforce such terms, but it is not empowered to set those terms and conditions of employment. On the facts before the Board in this case, it would amount to setting a new term or condition of employment to declare that grievors who were paid in accordance with the regulation then in effect for overtime during the strike should have been paid on the more generous basis that managers in corrections were paid.

The grievors have suggested that it is merely a question of interpretation of the amended regulation, and that the intention of the regulation was that all managers in the listed facilities should be paid the same. In my view, the determinative issue is not one of interpretation of the regulation. The wording of the regulation is very plain in saying in subsection 10.11.3 (6) that the employee is “entitled to receive overtime credit calculated at double time for his or her work at a facility or location listed in Schedule 9 in excess of 36 ¼ hours working during the week”, and in subsection 10.11.3(4) that there is a pre-condition of having worked 44 hours in the week. It is not a viable argument on the wording of the regulation that the grievors were entitled to double time for all hours worked during the strike. The agreed fact that the managers working in correctional facilities were paid double time for all hours, including the first 36 ¼ per week, is not something that flows from the plain meaning of that language. On the face of the material before me, the method of payment to managers in correctional facilities for overtime was over and above the entitlement set out in the amended regulation. The issue in this case is whether or not the grievors are also entitled to be paid more than the amended regulation requires.

The grievors also raised the issue of a settlement with another MCSS manager which they believe afforded compensation for strike overtime. However, the terms of that settlement were said to be confidential, and no sufficient basis for making them public or for allowing a grievance on the basis that such a settlement had been made, has been put forward. Even if a settlement were made with another manager, about which the Board makes no factual finding, it would not form an entitlement for the grievors in the current case, unless there was some other circumstance as a basis for such an entitlement, such as that they had been parties to that settlement and were seeking its enforcement. There is no suggestion that that is the case.

The grievors also referred to the Mously, Lister, Watson decision, cited above, as support for the need for equity and fairness in compensation for managers across the public service. In that case the Board decided that the grievors had met the conditions to be paid in accordance with the applicable Order-in-Council and had not been paid accordingly. The remarks the Board made about the importance of equity and fairness in that case were directed at the issue of whether managers who had not grieved should also be awarded payment in accordance with the Order-in-Council which the Board had found had not been followed by the employer. Finding that the Board did not have jurisdiction to make an order affecting individuals who were not parties to the grievance, the Board remarked as follows:

Even though I find that I do not have jurisdiction to make the order as requested, I believe that for the sake of fairness, equity and future employment relations, the Employer ought to pay the overtime premium for all overtime earned during the OPSEU strike to all those managers who qualify for the entitlement provided in OIC 2160/90 and Policy K-10. I am of the view that if the employer does not pay the entitlement to those who have not grieved that there will be a chilling effect on employee morale.

It is important to keep in mind the context of those remarks, i.e. the Board had found that there was an entitlement to be paid overtime at the rate of time and one half for qualifying overtime hours worked during the 1996 OPSEU strike. This entitlement had not been paid to a group of managers, some of whom had grieved and some of whom had not. In the facts of the current case, the entitlement set out in the amended regulation applicable to the 2002 strike was to be paid double time for qualifying overtime hours during the strike. No grievor claims they have not been paid that entitlement. The claim is that they ought to have been paid more than what is set out in the amended regulation, i.e. double time, not just for qualifying overtime hours, but for all hours worked during the strike, which was the situation for managers working in correctional facilities. The difference in the two cases is that I have found that there is no entitlement for the grievors to be paid in the more generous fashion, so that there is no issue about whether those who did not grieve should be paid the same as the grievors were paid. Thus the issue about equity and morale raised by the grievors is not of the same nature as the one in that case, where the concern was that those who had grieved would be paid according to their contractual entitlement, while those who had not grieved would be paid less. Here, the grievors’ concern is that the managers working in correctional facilities were paid more than the entitlement flowing from the amended regulation, something for which no remedy is to be found in the grievors’ terms and conditions of employment.

In the result, for the reasons set out above, the grievances are dismissed.

Dated at Toronto this 4th day of April, 2006