P-2012-4718, P-2012-4719, P-2012-4724, P-2012-4786, P-2013-0001, P-2013-0272, P-2013-0273

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Hugh MacDonald et al

Complainants

• and -

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

Employer

BEFORE

Kathleen G. O’Neil

Vice-Chair

FOR THE COMPLAINANTS

Hugh MacDonald Rick Camman

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel

SUBMISSIONS

Concluded on September 12, 2014.

Decision

1This decision deals with several complaints relating to the pay of a number of Operational Managers working at Central East Correctional Centre: Hugh MacDonald, Frank Schmohl, Ed Tighe, Chad Chambo, Mary-Andrea Bourgeault and Wayne Routh.

2All of the complainants have raised issues about salary compression with Correctional Officers and Mr. MacDonald has also raised an issue alleging salary inequity as compared to retired Operational Managers rehired on contract.

3As remedy, the complainants seek, among other things, a pensionable across-the-board increase for Operational Managers to re-instate a minimum 3% difference between top level Correctional Officers and bottom level Operational Managers. The remedy sought in terms of the retired, rehired Operational Managers is placement at the top level of the pay grid as well as a 14% additional increase to bring compensation up to par with the rehired contract managers.

4The Employer has made a preliminary objection asking that these complaints be dismissed at the outset, without a hearing on the merits, since, in the employer’s view, the Public Service Grievance Board (PSGB) does not have the authority to issue any remedial order of the kind requested. It is the employer’s position that even if all of the facts asserted by the complainants are true and provable, there is no prima facie or viable case of a breach of a term or condition of employment that the PSGB can remedy.

Factual Context

5The complainants rely on the assertion that the last OPSEU (Ontario Public Service Employees Union) contract provided a pensionable increase of approximately 2.25% to Correctional Officers, causing a compression issue in that a top level Correctional Officer now makes more money hourly than a bottom level Operational Manager. Further, one of the complainants states that he learned in February 2013 that the Ministry of Corrections was paying rehired retired managers at the top rate for Operational Managers, plus 14%.

6The complainants also refer to temporary compression pay adjustments for the period April 1, 2002 to March 31, 2004, as well as another adjustment in 2007. Further, there is a reference to a statement by the Deputy Minister in 2003 who indicated that all institutional managers should be compensated 3% above the salary maximum of their direct reports.

7For the purposes of this motion, those facts asserted by the complainants, but not the legal conclusions asserted to flow from them, are assumed true and provable, but no findings concerning any disputed facts are made at this stage.

Considerations and Conclusions

8It is the employer’s position that the facts raised by the complainants do not make out a case for any remedy from this Board. Simply put, the employer’s case boils down to saying that the complainants would like their pay to be different and better than what their contract of employment provides at the moment. What would be required in order to give the complainants what they want is for the PSGB to write new terms into their contract, in the employer’s view, something it does not have the power to do. Counsel notes that the PSGB has taken jurisdiction over cases in the past to determine whether compensation has been correctly applied, but it has consistently ruled that it has no authority to remedy a complaint where the request is one which would require the Board to set the terms and conditions of employment as to compensation. This should lead to the dismissal of both areas of the complaints, in the employer’s submission.

9As to the allegation that the compensation provided to rehired retired managers is unlawful and in violation of numerous provincial and federal statutes, the employer notes that the Management Board of Cabinet issued a Directive within their authority under the Public Service of Ontario Act (PSOA) concerning the terms and conditions of employment for all public servants appointed under section 32 of the PSOA. Employer counsel refers to Part IV of the Directive, regarding Fixed Term Excluded employees, which encompasses the classification of the rehired managers, which sets out the benefits paid to those employees. The Directive authorizes compensation in lieu of Holidays, Vacation Pay and Group Insurance of a total of 14% of their wages. In light of this, the employer submits that those payments are duly authorized by statute and therefore lawful.

10The complainants, by contrast, refer to examples of past occasions when the employer addressed compression or wage disparity issues, as noted above. One of the complainants had experience of a mediated settlement of a complaint where a raise had been promised but rescinded, which in the complainants’ view is an acknowledgment of the PSGB’s jurisdiction over compensation issues. In a similar vein, the complainants also make reference to a case where the Association of Management, Administrative and Professional Crown Employees of Ontario (AMAPCEO) complained that a raise given to members of the bargaining unit represented by the Ontario Public Service Employees Union (OPSEU) had not been disclosed at the bargaining table. This is presumably a reference to the decision of the Ontario Labour Relations Board, rather than the PSGB, concerning an allegation of bad faith bargaining, reported as: Association of Management, Administrative (AMAPCEO) and Professional Crown Employees of Ontario v. Crown in Right of Ontario, 2012 CanLII 3597 (ON LRB)

11In reply, employer counsel submits that the communications from the employer relied upon by the complainants speak of one-time temporary wage adjustments for Operational Managers. They are dated between April 2003 and July 2006 and are not proof of any currently existing term or condition of employment. Counsel notes that the Board has dealt with essentially the very same argument that is being advanced here in the case of Hollinger v. Ontario (Environment), 2010 CanLII 64240 (ON PSGB) (Leighton), an earlier case in which a manager complained that his salary was too low in comparison to others. The Board dismissed the complaint because, among other reasons, there was no policy or legislation requiring the employer to pay the wages the complainant was seeking. There had been a temporary policy redressing individual compression situations, but nothing applicable in the circumstances.

12In the Hollinger decision, after hearing evidence from the employer which established the temporary nature of the compression policies and the fact that no such policies existed at the time relevant to the complaint that the Board could adjudicate or enforce, the Board dismissed the complaint. Employer counsel notes that in the Hollinger case, as in this case, the complainants could not point to any current policy that would form a term or working condition of employment regarding salary compression. As such the Board ruled that it had no jurisdiction to adjudicate the complaint and dismissed it.

13The employer also relies on the following cases which come to similar conclusions:

Garratt et al. and the Crown in Right of Ontario (Ministry of Health and Long-Term Care) PSGB No. P-2003-1670 (May 16, 2005) (O’Neil), 2005 CanLII 53195 (ON PSGB);

Laird et al. and the Crown in Right of Ontario (Ministry of Community Safety and Correctional Services (PSGB Nos. P-2006-1287 etc. (July 14, 2009) (Leighton), 2009 CanLII 43638 (ON PSGB).

Ransome and the Crown in Right of Ontario (Ministry of Health and Long-Term Care) PSGB Nos. P-2005-2314, P-2005-2786 (December 5, 2006) (O’Neil), 2006 CanLII 42782 (ON PSGB).

14I have carefully reviewed and considered the material before me and find that the complaints must be dismissed. Like the cases of Hollinger and Garratt, cited above, there is no evidence of any policy, legislation, practice or other term or condition of employment that was in force at the time of the complaints which provides for the complainants to be paid in the manner they seek. There is no assertion or evidence that the practices and statements relied on by the complainants are still in effect. Specifically referring to the statement of the Deputy Minister in 2003, and

whether or not that statement translated into a term or condition of employment in 2003 and 2004, there is no evidence or assertion on which the Board could base even a preliminary finding that it is an enforceable term or condition of employment several years later.

15The complainants also claim equal pay for equal work. This aspect of the complaint has the ring of an allegation of an illegal compensation provision. And if there were anything in the alleged facts that established a viable basis for a claim of a pay differential prohibited by statute, the Board would have the jurisdiction to let the claim proceed, even though the employer has the undisputed legislative basis in the Public Service of Ontario Act for the employer to set compensation. 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.

16It 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. In general, it is not illegal to pay employees differently from others, unless the basis for the difference is prohibited by statute or the applicable contract.

17As noted in earlier decisions of this Board, in order for the Board to be able to award a remedy to a complainant, there must first be an existing term or condition of employment related to the facts complained of, something that is part of the complainant’s contract of employment. This is something more than a belief that something is unfair, no matter how deeply held. Secondly, there must be a breach of that term or condition of employment, and thirdly, there must be a link between that breach and a remedy that the Board is empowered to give. See, in this respect: Antle v. Ontario (Ministry of Community Safety and Correctional Services), 2006 CanLII 30741 (ON PSGB) and Allen v. Ontario (Community Safety and Correctional Services), 2009 CanLII 43639 (ON PSGB).

18Where there is no term or condition of employment, or overriding legal principle preventing the action complained of, the Board has no basis to find a breach or award a remedy. That was the case in Garratt, cited above, dealing with a fact situation not dissimilar from this one.

19In the Garratt case, the Board was faced with complaints filed by a group of managers who grieved salary compression between themselves and the OPSEU bargaining unit employees who reported to them. The Board dismissed the complaints in respect of compression with bargaining unit compensation on the basis that it had no authority to set terms and conditions of employment or to give binding opinions as to whether the contractual terms complained of are fair in some absolute sense or in comparison to bargaining unit employees. The same applies to both aspects of the case in issue here, the comparison with the bargaining unit employees as well as the retired managers rehired on contract. The bargaining unit and contractual employees quite simply have different terms and conditions of employment related to pay than do the managers. As the Board noted in the Garratt decision, grievances claiming “what OPSEU (or any other bargaining agent) got” are not entertained by the Board because they amount to claims for the application of terms and conditions of employment which have been set for a different group. For the Board to apply terms and conditions to managers that have been bargained by, or awarded to, a bargaining unit or contractual employees would amount to setting terms and conditions of employment for the managers, which is not the function of the Board. The PSGB can and does enforce existing terms and conditions of managers’ contracts, but has no authority to set wages or compensation.

20As the Board stated in the Ransome case, cited above: "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."

21For the reasons set out above, I accept the employer’s submission that the complainants have failed to identify a term or condition of their employment that has not been applied correctly, or a promised level of salary that has not been provided. Nor have they shown facts that make out a viable case of a breach of statute or an illegal contractual provision. In the circumstances, even accepting all the facts asserted by the complainants to be true and provable, there is no viable case stated in the materials, so that the complaint is dismissed for want of a prima facie case.