P-2014-0200

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

John Ilika

Complainant

• and -

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

Employer

BEFORE

Kathleen G. O’Neil

Vice-Chair

FOR THE COMPLAINANT

John Ilika

FOR THE EMPLOYER

Caroline Cohen Treasury Board Secretariat Legal Services Branch Counsel

HEARING

September 22, 2014.

Decision

1This decision deals with the complaint of John Ilika in which he alleges that the employer has violated its Pay on Assignment Policy in not giving him a promotional increase when he was awarded a new Field Intelligence Officer (FlO) job with increased responsibilities. The employer asks that the matter be dismissed without a hearing on the merits on the basis that it is barred by the Minutes of Settlement of an earlier grievance, and the Board has no authority to grant the remedies claimed.

Factual Context

2The facts are not significantly in dispute. It is the legal conclusions to be drawn from them on which the parties disagree. In any event, on a preliminary motion such as this, the Board takes any disputed facts asserted by the complainant as true and provable without making any factual findings at this stage.

3Mr. Ilika became an FlO in 2008 on an acting basis and was appointed on a permanent basis to this position in April 2011 at which time he received a 3% increase, in accordance with the employer's Pay on Assignment Policy.

4In June 2013, as a result of a restructuring, the employer decided to reduce the number of FlO's from twelve to four. Initially the employer planned to hold an open competition for these four positions. The complainant, along with the other FIOs, was advised that if he was not successful in the competition, he would be eligible to compete for other jobs or be declared surplus.

5On June 28, 2013, the complainant filed a complaint concerning this restructuring. As a remedy, he requested to be placed in one of five enumerated positions, and further that "any of the positions chosen will be at the top of the pay grade due to my many years of experience". The other affected FIOs filed similar complaints.

6The complaints of the FIO’s were resolved on the basis that the employer would restrict the competition to the twelve incumbent FIOs, which was also consistent with the Board’s decision in Williams et al and the Ministry of Correctional Services decision, 2002 CanLll 45640 (ON PSGB) (Leighton). The Memorandum of Settlement dated July 26, 2013 signed by the complainant released the Ministry from any and all actions or complaints directly or indirectly related to the circumstances giving rise to the June 28, 2013 complaint. Further, in paragraph 6 of that Memorandum, the complainant agreed that any facts related to the circumstances leading to the complaint would not form the basis of any remedy in future complaints.

7Mr. Ilika applied for and was one of the successful applicants in the restricted FlO competition in February 2014. The salary range and classification was listed on the job posting. He acknowledges that his classification was AM19, the same in the new FIO position as in the former one. The employer does not dispute that the new position entails responsibility for a larger number of institutions and inmates. Mr. Ilika also asserts that the new job description significantly increased the responsibilities and workload of the position.

8The nub of Mr. Ilika’s complaint is that certain other employees within the CSOI (Correctional Services Oversight & Investigations Division) are paid at a higher rate, which he alleges creates an imbalance within the unit and fosters an environment of resentment. He clarified at the hearing that these were employees covered by the AMAPCEO (Association of Management, Administrative and Professional Crown Employees of Ontario) collective agreement who have the ability to move annually on the grid, whereas he does not.

9As monetary remedy, Mr. Ilika seeks a 5% raise, retroactive to his start date in the new position, to be moved in the salary grid to an amount equal to his colleagues who do the same work as he does, and lump sum payment for expenses.

Considerations and Conclusions

10It is the employer’s position that the facts raised by the complainants do not make out a viable or prima facie case for any remedy from this Board. Moreover, the complainant was aware that the rate of pay and classification for this position had not changed at the time he applied and has not referred to any term or condition of employment that provides otherwise.

11Counsel for the employer argues that the Pay on Assignment Policy does not apply to the appointment of the complainant to his restructured FOI position in February 2014 because it was not a promotion or lateral transfer that could have attracted an increase in pay under that policy. Rather, as the complainant acknowledges, it was a competition for an FIO position at the same classification level. Unless there is a change in classification, a job change does not meet the definition of a promotion under the Pay on Assignment Policy, which reads: Promotion occurs when an employee is assigned to a position in a class with a higher salary range maximum.

12As to the complainant’s view that the job should be paid more, on its merits, or in comparison to colleagues in bargaining units, employer counsel submits that the PSGB does not have jurisdiction to decide whether the new position ought to have been re-classified to a higher classification with pay comparable to any other employee. Nor does the Board have jurisdiction to decide that Mr. Ilika should be paid more because of his exemplary performance. This is pursuant to s. 4(2)2 of Regulation 378/07 of the Public Service of Ontario Act, which provides:

The following matters cannot be the subject of a complaint about a working condition or about a term of employment:

2. The assignment of the public servant to a particular class of position.

3. The compensation provided or denied to a public servant as a result of their performance

13As well, the employer disputes that the failure to give an increase on appointment to the new FIO position is in violation of its "equal pay for equal work and pay equity policies" as alleged. Counsel observes that the complainant has not established that he was paid incorrectly according to his own classification. Rather, his claim is based on the fact that others are paid more. In this regard, Counsel refers to a decision dated April 28, 2008 of our sister tribunal, the Grievance Settlement Board (GSB), Ontario Public Service Employees Union v. Ontario (Environment), 2008 CanLII 19779 (ON GSB) (Dobroff et al). Counsel submits that even though the GSB has a broader jurisdiction, it has clearly held in Dobroff, and the cases discussed in that decision, that a complaint that other employees were treated more generously is not a viable one unless some contractual right of the grievors had been adversely affected by the treatment of the other employees. Counsel invites the conclusion that this is even more applicable at the PSGB with its explicitly restricted jurisdiction. Counsel urges a similar finding to that in Dobroff to the effect that the complaint amounts to a non-viable “me too” grievance, because the complainant is contesting the treatment of other employees but not disputing that he was paid correctly within his own classification.

14As to the claim for placement at the top of the grid, the employer's position is that there is currently only one way for a manager to move through the salary grid in any given classification and that is through Pay for Performance, another issue over which the PSGB has no jurisdiction, pursuant to s.4 (2) 5 of Regulation 378/07 of the Public Service of Ontario Act, set out above.

15Counsel for the employer also submits that the grievance is barred by the settlement of the 2013 grievance. Counsel notes that the request for monetary remedy in the earlier grievance is equivalent to the one now before the Board. It is the employer’s position that this was settled in 2013 because all matters related to the competition were settled at that time, including the rate of pay for the position.

16In his submissions, Mr. Ilika stated that the responsibilities of the FIO job after the reorganization reflect those of other positions such as Investigator, Compliance Officer and Use of Force Auditor. He submits that the employer should have taken the opportunity of the hiring into the new positions to remedy what he identifies as a pay gap with bargaining unit colleagues in his unit. It is his view that the FIO’s continue to be treated in an inequitable manner to their substantial disadvantage. He considers this a breach of the Pay on Assignment Policy and the employer’s policies about equal pay for equal work and pay equity. He notes that one of the principles articulated in the policy states that: Employers 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. In this respect he described the many skills acquired and positive evaluations he has received over the course of his career and work as an FIO.

17As to the earlier grievance which was settled, it is the complainant’s view that the current one is a completely separate complaint, as it deals with a claim to an increase in pay upon taking on the expanded duties of the new position, while the earlier one was an objection to the process at the time of the restructuring.

18Where the Board considers that a complaint does not make out a case for the orders or remedies requested, even if all the facts stated in the complaint are assumed to be true, the Board may dismiss the complaint without a further hearing. I have carefully considered whether Mr. Ilika has set out a viable claim to the additional compensation he seeks.

19In order to have a potentially successful grievance, there must be a term or condition of the complainant’s employment, a breach by the employer, and a remedy connected to the breach that is within the Board’s statutory power to give. It is my finding that the complainant’s arguments and materials do not provide a sufficient basis for the complaint to succeed, even accepting the facts he asserts to be true, such as that he has increased responsibilities, or that others are paid more to do the same or very similar work. What is lacking is any facts that make out a possible breach, as well as that the Board does not have the jurisdiction to decide that the complainant ought to be paid more, unless there is a contractual term requiring that he be paid more.

20In this case, there is an existing term or condition of employment that is potentially applicable to the complainant’s situation, i.e., the Pay on Assignment Policy. However, the undisputed facts, such as that the complainants classification was AM19 both before and after the competition, mean that there is not a viable basis for a breach of that policy. The provision on which the complainant relies is paragraph 7.3, which, for managerial employees, provides pay on promotion of 3 percent or an increase to bring the employee to the minimum rate of the new salary range, whichever is greater. In addition, higher increases may be given on a discretionary basis. However, as noted above, the definition of promotion in the policy on which the complainant relies requires that the employee be assigned to a position in a class with a higher salary range maximum. The undisputed facts asserted establish the contrary, i.e., he was assigned to the same job class before and after the assignment to the new FIO position, rather than one with a higher salary maximum.

21Further, to the extent that the complaint is requesting compensation on par with employees in different classifications, it is essentially a complaint about which job class the complainant has been assigned to. Such a complaint is specifically removed from the Board’s authority by s.4 (2) 2 of Regulation 378/07 of the Public Service of Ontario Act, set out above. The Board does not have the power to decide that the changes in the FIO job description are significant enough that the position should be classified higher or differently.

22The complainant also claims equal pay for equal work. There is no contractual provision in evidence requiring that the FIO position be paid the same as some other position, even if it does very similar work. Nonetheless, if there were anything in the alleged facts that established a viable basis for a claim that the complainant was being paid differentially in a way prohibited by statute or some other broader principle of law, the Board would have the jurisdiction to let the claim proceed. However, there is nothing in the material before me that constitutes a viable case of a violation of any policy or legislative provision as to equal pay for equal work or other prohibited forms of wage disparities.

23It can be seen from the provincial legislation providing for equal pay for equal work, and equal pay for work of equal value, that the kind of unequal pay that is illegal is based on gender or sex discrimination. See, in particular, s. 42 (1) of The Employment Standards Act and section 8 of the Pay Equity Act where it is made clear that differences in compensation which are the result of compensation policies which do not discriminate on the basis of sex or gender do not constitute failures to pay equal pay in the sense prescribed by Ontario law. More generally, there is no suggestion of any gender-based disparity here, or of discrimination in wages on the basis of any other ground prohibited under the Ontario Human Rights Code or other legislation. The only allegation is that those covered by the AMAPCEO collective agreement have more favourable terms for similar work. There is nothing in the material before me that persuades me that this is a viable claim of a breach of the complainant’s terms and conditions of employment, as there is no statute, policy or other term and condition of employment in evidence which arguably prohibits that kind of difference.

24In the result it is not necessary to deal with the employer’s argument concerning the settlement of the earlier claim, as the claim is not viable, even if the more recent complaint was not considered resolved by the earlier one.

25In the circumstances, even accepting all the facts asserted by the complainants to be true and provable, it is clear that the complaint cannot succeed. There is no viable case stated in the written materials or oral submissions, so that the complaint is dismissed for want of a prima facie case.