P-2006-1287, P-2006-1596, P-2006-1597, P-2006-1598

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Laird et al

Grievor

• and -

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

Employer

BEFORE

Deborah J. D. Leighton

Vice-Chair

FOR THE GRIEVORS

Jack Laird

FOR THE EMPLOYER

Paul Meier Ministry of Government Services Counsel

HEARING

October 29, 2008.

Decision

1The grievors in this matter are Assistant Section Heads in the Biology section of the Centre of Forensic Sciences, a branch of the Public Safety Division of the Ministry of Community, Safety and Correctional Services. They grieve that the employer has discriminated against them because they are required to perform the duties of a Scientist IV, a bargaining unit position, in addition to managerial and supervisory requirements, without the appropriate or corresponding pay increases that the bargaining unit has received. The grievor’s are complaining about the salary disparity that has arisen since 2002 between their positions and their subordinates, the Scientist IV. The grievors also allege that they were induced to accept a promotion to the Assistant Section Head position by an implicit promise of a pay increase and a consistent pay differential relative to the Scientist IV position. At the outset of the hearing into this matter, the employer brought a motion to dismiss the grievance because it is essentially a salary compression or classification grievance. The employer noted that for the purpose of the motion it accepted the grievors’ particulars of the grievance as set out in Appendix A of the application to the board as fact. No oral evidence was called but documentary evidence went in by agreement.

2The facts are as follows. Each of the grievors was in the position of Assistant Section Head before January 1, 2002. All were promoted from the Scientist IV position to the Assistant Section Head position, which is classified in the Management Compensation Plan (MCP). Scientist IV employees are within the OPSEU bargaining unit and report to the Assistant Section Heads. The Assistant Sections Head’s job description incorporates and explicitly includes the Scientist IV job duties. In addition, Assistant Section Heads

have management and supervisory responsibilities.

3Effective January 1, 2002, pursuant to the OPSEU collective bargaining agreement with the government, members of the Scientist IV classification received a pay increase of 8% in addition to other increases given to all union members. Assistant Section Head employees did not receive an equivalent pay increase. Effective January 1, 2005, pursuant to a collective bargaining agreement between the government and OPSEU, Scientist IV employees received a 2% increase in salary in addition to regular increases given to all union members pursuant to the new contract. Assistant Section Head received no similar increase.

4For some time the grievors believed the employer was working to address the pay disparity between the two positions. An email sent shortly after July 2002 from the then-Director to the Centre’s Managers stated:

“You will note that Mr. Wilson has indicated his readiness to work with ministries to bring further compensation issues to the Civil Service Commission and Management Board of Cabinet. The matter of the impact of an additional 8% increase to the Scientist classification has already been brought to the attention of our HR Representatives who will be working on your behalf.”

5Since no initiatives to redress the disparity were taken by the employer, the group complained in June of 2005 and did so more formally on November 15, 2005. The response from the employer at this point was that the ministry could do nothing. On March 21, 2006 the Director of Human Resources for the ministry responded that the ministry had no authority to adjust salaries and that the issue had been referred to the Ministry of Government Services.

6On April 19, 2006, the employer advised the grievors that the Assistant Section Head position had been reclassified from TSS-18 classifications (Scientific Support TM-18) to PGS-20 classifications (General Scientific PM-20) effective November 1, 2005. No reason was given for retroactivity to April 1, 2005. The grievors were of the view that the reclassification was unfair to them as it failed to take into account their specific and unique circumstances: they were performing all of the duties of a Scientist IV position and the pay inequity had existed since January 1, 2002. The grievors believed they were entitled to reclassification retroactive to that date.

7Thus on July 21, 2006 the group filed a grievance with the Deputy Minister, which was forwarded to the board and received on October 6, 2006. By way of remedy, the grievors requested the following with accrued interest:

1. An 8% across-the-board increase in pensionable salary, effective and retroactive to January 1, 2002.

2. A 2% across-the-board increase in pensionable salary, effective and retroactive to January 1, 2005.

3. A written undertaking that future salary increases for the Assistant Section Head position will, at a minimum, mirror those awarded to staff in the Scientist IV position for as long as the duties and responsibilities of the Scientist IV position are explicitly embedded in the job description of an Assistant Section Head.

EMPLOYER’S SUBMISSION

8Counsel for the employer asked the board to dismiss the grievance because the board has no jurisdiction to hear a “salary compression” grievance. Counsel noted that the grievance itself describes the complaint as essentially a complaint that if the bargaining unit Scientist IV position received a raise then the grievors ought to have received an

equivalent raise. Counsel maintained that there is no policy in place on salary compression between the bargaining unit and managers. The grievors claim that there was an implicit promise that if they accepted the Assistant Section Head position they would make more money than the Scientist IV is not relevant to the question of jurisdiction in counsel’s submission. Further, the grievors were given a remedy when their position was reclassified and retroactive to 2005. Counsel argued that there was no obligation to make the reclassification retroactive to January 1, 2002. Similar allegations have been made to this board and rejected by it consistently. Counsel relied on the following cases in support of his submission: Ransome v. Ontario (2006) OPSGBA No. 16; Garratt et al. v. The Crown in Right of Ontario (Ministry of Health and Long-Term Care) (May 17, 2005) P/2003/1670 (P.S.G.B.); Herbrand v. The Crown in Right of Ontario (Ministry of Transportation), P/0014/94; Marrison, Williamson & Mellon v. The Crown in Right of Ontario (Ministry of Correctional Services) P/0013/87 (P.S.G.B.); Smalley v. The Crown in Right of Ontario (Ministry of Correctional Services) (September 8, 1986) P/0013/85 (P.S.G.B.); Davies v. The Crown in Right of Ontario (Ministry of Correctional Services) (December 21, 1983) P/ 921/83 (P.S.G.B.).

9Counsel also argued that the grievance was not timely and alternatively to the jurisdictional objection counsel argued that taking the case at its best, the board could not provide the remedy sought by the grievors.

GRIEVORS’ SUBMISSION

10Mr. Jack Laird presented the arguments for the grievors by reading a prepared written statement that he also provided to the board. Mr. Laird submitted that the employer

treated grievors unfairly and inequitably. This inequitable treatment amounted to discrimination and arbitrary conduct, though he noted that the discrimination was not a human rights claim. The differential treatment or discrimination occurred between a group of managers doing the same work as the Scientist IVs that they supervise. He argued that the grievance is not a complaint that the Scientist IV positions are subordinate, and therefore the managers should be paid more. Rather, it is because they are required to do the work of a Scientist IV position in addition to the managerial duties of the Assistant Section Head position. The grievors are of the view that the employer discriminated against them by not giving them the same salary increases as the Scientist IV employees received on January 1, 2002 and January 1, 2005. Mr. Laird said that they did not think that the discrimination was wilful or malicious, but rather because of the complex system within the OPS that it is sometimes unable to ensure fairness. Mr. Laird also presented the following:

Fairness is one of the espoused OPS core values. Virtually all of the employer’s framework policies on compensation and staffing articulate the principles of fairness and equitable treatment. For example, its HR Management Directive (1999) states as a principle that “HR Management strategies, policies and practices will”, amongst other things, “reflect each public servant’s right to equal treatment and to work free from discrimination and harassment in a safe and healthy workplace” and will “embody the values of honesty, integrity, fairness, and diversity.”

Its Classification and Position Administration Directive (2008) states as a principle that “consistency, fairness and equity are essential to the classification systems of the public service.”

Its Pay on Assignment Operating Policy (1998) states as a principle that “employees should be paid equitably in their assigned salary ranges, taking in account such factors as skill and job related experience, relationship to peers and career progression.”

Its Staffing Operating Policy states that as a principle that “staffing decisions demonstrate such OPS values as accountability, fair treatment, open and honest behaviour, and integrity …” among others.

11Mr. Laird argued that fairness was clearly a core value and of primary importance in the employer’s administration of the OPS. However, he argued that the treatment of the grievors was patently unfair: The employer violated the very principle of fairness and equity that it espouses in its policies and guidelines.

12In response to the employer’s motion that this board does not have jurisdiction to hear this case, Mr. Laird argued that a review of the decisions of the board indicates that while some cases are dismissed, some are not. He relied on Kanga v. The Crown in Right of Ontario (Ministry of Health) (1986) P/0003/85 to argue that like Ms. Kanga, the grievors had not been treated fairly and equitably and that such a complaint can be adjudicated by the board. He argued further that although the employer takes the position that their grievances are essentially classification complaints, the salary implications are “merely the symptom of inequitable and unfair treatment.” He noted that the Kanga case also made it clear that “the board does have jurisdiction to hear a grievance that has a salary component as the core of its complaint.” He stated further “while a clear cut salary compression issue would fall outside the purview of the board, it was confirmed in Scott et al. v. The Crown in Right of Ontario (Ministry of Transportation) (1996) P/0001/1996, that salary related matters, including compression and inversion, may be challenged if the decision by the employer is premised on discriminatory or arbitrary conduct, or if the salary related decision of the employer is a violation of the governing legislation, or a policy, guideline, practice, etc. that would have the legal force of being part of the employment relationship.” Thus, in Mr. Laird’s submission, the board does have

jurisdiction to hear the grievance and this is consistent with the long-standing liberal interpretation of the board of the term “working conditions and terms of employment.”

13Speaking to the timeliness objection, Mr. Laird submitted that the grievors believed that over the next few years the employer was making efforts to address the issue of salary compression. Despite raising the issue periodically, the employer did nothing until April 19, 2006 when the grievors were informed that their positions had been reclassified to a higher classification with higher pay retroactive to November 1, 2005.

14In conclusion, Mr. Laird submitted that the remedy they were seeking was two-fold: the grievors were seeking financial compensation as noted above. However, if the board was unable to grant compensation as a remedy they were seeking a declaration that what had occurred to the grievors amounted to unfair and inequitable conduct on the part of the employer. They also sought a salary review for the position of Assistant Section Head to address and correct the inequity of being required to do the full duties of a Scientist IV and in addition to management and supervisory requirements.

DECISION

15It is well-established law that this board has the jurisdiction to hear grievances that allege a complaint or breach of working conditions or terms of employment. Since the Kanga case, supra, the board has held consistently that these words must be given a broad and liberal interpretation. Kanga and Scott, et al., supra, are examples of cases where grievors were complaining about a salary issue. However, as noted in Garratt et al., supra, this does not mean that the board has the “authority to set the terms and conditions of

managers’ employment, or to give opinions as to whether they are fair, either in some absolute sense, or as compared to bargaining unit employees” (at p. 6). Vice Chair O’Neil carefully analyzes the board’s case law on this issue in Garratt et al. and concludes that the board has not taken jurisdiction of grievances that allege a salary compression or compensation disparity “in the absence of an allegation of a breach of an identified policy or term of employment which would prevent such compression.” She also noted that the board has consistently refused to hear grievances where the grievance seeks to review the level of compensation or classification, which is the exclusive function of the Civil Service Commission. Further, grievances that claim the increase that OPSEU employees received pursuant to collective agreement have not been successful at the board.

16The facts in the Garratt et al. decision are almost identical to the facts before me here. In Garratt et al., a group of nurse managers grieved salary compression between themselves and Registered Nurses within the OPSEU bargaining unit who reported to them. As in the facts before me, the RNs received a significant wage increase from the collective agreement on January 1, 2002. The board held in that case that to the extent that the nurses were asking the board to set salary rates or to determine that their pay was inequitable as it related to bargaining unit employees, the board was without jurisdiction to award such remedy. I agree with the analysis in Garratt and adopt it here. To the extent that the Assistant Section Heads are asking the board to review their pay in light of their job duties and assess whether their salary is inequitable as it relates to the bargaining unit scientists, the board has no jurisdiction to award a remedy.

17In the case before me, the only difference between the nurses in Garratt and the Assistant Section Heads is that the Assistant Section Heads claim they are doing the entire job of a Scientist IV in addition to managerial and supervisory requirements. However, I am convinced that it is not a material difference. Even though they were doing the work of a Scientist IV, they were managers and outside of the bargaining unit. The grievance is essentially a classification complaint and as noted earlier it is not for this board to review classification decisions of the employer.

18I am sympathetic to the managers’ frustration with salary compression. However, there is nothing this board can do to remedy salary grievances, unless there has been a clear breach of a term and condition of employment or a policy, or discriminatory or bad faith reasons for the decision. In the case before me, there is no evidence that the employer has acted in bad faith or discriminated against the grievors. There is no evidence of a compression policy or practice that required that the managers receive the same pay increase as the OPSEU bargaining unit. The grievors took the position that it was obvious on its face or patently unfair that they should be doing the same job and not getting the same pay as those they were supervising. However, there was nothing in the policies that they provided to me that indicated the employer must pay more to those that supervise. They said there was an implicit promise that they would be paid more than those they supervised, but there was no actual promise. It might have been a reasonable assumption, but that is all it was.

19Given my decision, there is no reason to address the timeliness objection, made but not argued by the employer. Thus, having carefully considered the submissions of the parties and for the reasons noted above the grievance is hereby dismissed