PSGB#P-2014-4453

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT OF ONTARIO

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Ronald Kettle

Complainant

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Kathleen G. O’Neil

Chair

FOR THE COMPLAINANT

Ronald Kettle

FOR THE EMPLOYER

Jennifer Richards Treasury Board Secretariat Legal Services Branch Counsel

SUBMISSIONS CONFERENCE CALL

July 3, 2015 March 17, August 19, 2015

Decision

1This decision deals with the employer’s preliminary objection to the complaint of Ronald Kettle, which claims entitlement to a lump sum payment for 2014. The employer maintains that the adjudication of this complaint should not proceed on the merits on the following grounds:

a. Mr. Kettle is ineligible to file a complaint about a working condition or term of employment since he was retired and no longer a public servant at the time he filed his complaint, and was not employed continuously for at least six months before the deadline for giving notice.

b. The Board has no jurisdiction over the subject matter of Mr. Kettle’s complaint since it relates to pay-for-performance.

c. The Board has no jurisdiction over the subject matter of Mr. Kettle’s complaint as Mr. Kettle signed a full and final release on April 3, 2014.

2The Employer withdrew a preliminary objection to the effect that the complaint was not filed in accordance with the mandatory statutory timelines.

3By contrast, the complainant disputes the applicability of each of the preliminary objections, and asks that his complaint be allowed to proceed to a hearing on its merits.

The factual and procedural context

4The facts necessary to this decision are those asserted by Mr. Kettle, which are assumed to be true for the purposes of this motion, and are summarized below. In any event, there was no significant dispute about the facts, although there is disagreement about their legal effect. Having carefully considered all three objections and Mr. Kettle’s detailed and able response, I have determined that it is only necessary to deal with the first, and have therefore not set out additional facts that would have been necessary to the consideration of the others.

5Mr. Kettle retired from his employment as an Area Contracts Engineer with the Ministry of Transportation on December 31, 2013, which means he had worked 9 months of the 2013-2014 fiscal year. Just over a year later, on January 5, 2015, after Mr. Kettle was unable to confirm whether he would receive a lump sum payment in respect of the fiscal year which ended March 31, 2014, he launched this complaint. He claims that he is owed the lump sum payment, because in his view, his salary in the years leading up to his retirement had been composed of biweekly salary payments and a lump sum payment to maintain salary at previous levels. Since, for the fiscal year in question, Mr. Kettle was only paid biweekly salary, and no lump sum, he claims he has been denied his full compensation.

6The lump sum payments in question have been the subject of a significant amount of litigation before this Board. As discussed more fully in several decisions of this Board starting with Smith et. al and the Crown in Right of Ontario (Ministry of Community Safety and Correctional Services, PSGB# P-2012-4155, dated July 9, 2014 (O’Neil), 2014 CanLII 48098 (ON PSGB), such payments were paid to employees who had been at the maximum of their pay scales in 2011. Pursuant to the terms of the pay for performance policy up until 2011, they had received their pay for performance in a lump sum, rather than an increase in salary rate, so that their annual compensation included their salary and the lump sum payment. By contrast, managers who were not at the top of their salary grids received pay for performance as salary rate increases up to the maximum of the grid. When the employer set pay for performance at 0% as part of a wage restraint program after 2011, there was no opportunity to be paid pay for performance. The employer decided to pay lump sum payments for managers who had been at the top of the pay grid to maintain their compensation at the pre-restraint level, so that it would be a compensation freeze, rather than a pay cut. Mr. Kettle received such lump sums in respect of the fiscal years ending in 2012 and 2013.

7The lump sum payments were provided for in policies that were published after the end of the fiscal year, and had conditions and exceptions related to their payment. In the policy relevant to Mr. Kettle’s claim, entitled Compensation and Eligibility Procedures 2014, section 4, “Principles”, indicates that the earnings of specified non-bargaining unit employees were to remain at 2011-2012 levels, subject to the eligibility criteria and the exceptions set out in the policy. Further, section 5.1 provides that one of the mandatory initial eligibility requirements was that the non-bargaining unit employee in question continue to be in a non-bargaining unit position on the last working day of the fiscal year which ended March 31, 2014. The undisputed fact that Mr. Kettle was no longer in such a position at the end of the fiscal year is the basis of the employer’s contention that Mr. Kettle is not entitled to the lump sum payment. Mr. Kettle has several thoughtful arguments about why he considers this position to be unfair and inconsistent with other policies of the employer, but those arguments are not to be addressed in the context of this preliminary motion. The procedure is that the Board first decides if it has jurisdiction to hear the matter, and if so, would schedule a further hearing to decide the merits of Mr. Kettle’s claim. If the finding is that there is no jurisdiction, then the complaint cannot be entertained by the Board, as it only has the powers given it by statute. Accordingly, questions posed by Mr. Kettle such as whether he lost salary or wages as he claims and whether it is discretionary to pay or not pay the full salary or wage for the job, are questions not addressed in this decision. Similarly, the decision does not deal with Mr. Kettle’s submission that, since the lump sum payment was meant to compensate employees so that they would not suffer a loss salary or wage, that any employee who worked even one hour in the reporting year who did not receive a proportional lump sum payment would have suffered lost wages, which, in his view, the OPS cannot retain on the basis the non-eligibility rules relied upon by the employer.

Statutory Provisions

1. The following provisions of the The Public Service of Ontario Act (PSOA) and Regulation 378/07 are relevant to the consideration of this matter:

2. (2) For the purposes of this Act, the following are public servants:

3. Every person employed under Part III.

4. The Secretary of the Cabinet.

5. Every deputy minister.

6. Every employee of a public body

7. Every person appointed by the Lieutenant Governor in Council, the Lieutenant Governor or a minister to a public body. 2006, c. 35, Sched. A, s. 2 (2). ….

8. Except where otherwise provided, a reference in this Act to a former public servant is a reference to a person who ceased to be a public servant on or after

the day on which this section comes into force. 2006, c. 35, Sched. A, s. 3.

56. (1) Sections 57 to 65 apply to public servants and former public servants other than public servants who work or, immediately before ceasing to be a public servant, worked in a minister’s office. 2006, c. 35, Sched. A, s. 56 (1).

Same, ministers’ offices

(2) Sections 66 to 69 apply to public servants and former public servants who work or who, immediately before ceasing to be a public servant, worked in a minister’s office. 2006, c. 35, Sched. A, s. 56 (2).

And from Ontario Regulation 378/07 under PSOA:

2. (1) A person who is aggrieved by his or her dismissal for cause under section 34 of the Act may file a complaint about the dismissal for cause with the Public Service Grievance Board,

(a) if the person is eligible under sections 5 and 6 to file such a complaint;

(b) if the person gives notice in accordance with section 8 of his or her proposal to file the complaint; and

(c) if the person complies with the filing requirements set out in section 10. O. Reg. 378/07, s. 2 (1).

(2) Subsection (1) does not affect the right of a person to file a complaint under Part V of the Act (Political Activity) or a complaint under Part VI of the Act (Disclosing and Investigating Wrongdoing). O. Reg. 378/07, s. 2 (2).

4. (1) Subject to subsection (2), a public servant who is aggrieved about a working condition or about a term of his or her employment may file a complaint about the working condition or the term of employment with the Public Service Grievance Board,

(a) if the public servant is eligible under sections 5 and 7 to file such a complaint;

(b) if the public servant gives notice in accordance with section 8 of his or her proposal to file the complaint; and

(c) if the public servant complies with the filing requirements set out in section 1 O. Reg. 378/07, s. 4 (1). Eligibility to File a Complaint

Eligibility generally

5. (1) Subject to subsections (2) and (3), a public servant or other person is eligible to file a complaint if he or she was appointed by the Public Service Commission under subsection 32 (1) or (2) of the Act to employment by the Crown. O. Reg. 378/07, s. 5 (1).

(2) If any of the following circumstances existed at the material time, a public servant or other person is not eligible to file a complaint:

1. He or she was a member of a bargaining unit represented by a bargaining agent under the Crown Employees Collective Bargaining Act, 1993 or under the Ontario Provincial Police Collective Bargaining Act, 2006.

2. He or she was represented by the Ontario Crown Attorneys’ Association or the Association of Law Officers of the Crown under an agreement between the Crown and one or both of those Associations.

3. He or she was employed in a position that was classified under subsection 33 (1) of the Act as a term classified position.

4. He or she was employed for a fixed term,

i. on a non-recurring project,

ii. in a professional or other special capacity, or

iii. on a temporary work assignment arranged by the Public Service Commission in accordance with a program for providing temporary help.

5. He or she was employed for a fixed term for fewer than 14 hours per week, employed for a fixed term for fewer than nine full days in four consecutive weeks or employed for a fixed term on an irregular or on-call basis.

6. He or she was employed for a fixed term during his or her regular school, college or university vacation period or was employed for a fixed term under a co-operative educational training program. O. Reg. 378/07, s. 5 (2).

(3) Subsections (1) and (2) do not affect the right of a public servant or other person to file a complaint under Part V of the Act (Political Activity) or a complaint under Part VI of the Act (Disclosing and Investigating Wrongdoing). O. Reg. 378/07, s. 5 (3).

Restrictions, complaint about dismissal for cause

6. A person is eligible to file a complaint about dismissal for cause only if, immediately before his or her dismissal,

(a) he or she had been employed continuously for at least 12 months for a fixed term or a succession of fixed terms under subsection 32 (1) or (2) of the Act; or

(b) he or she was employed otherwise than for a fixed term and was not on probation. O. Reg. 378/07, s. 6.

7. (1) A public servant is eligible to file a complaint about a working condition or a term of employment only if he or she had been employed continuously for at least six months before the deadline for giving notice in accordance with section 8 of his or her proposal to file the complaint. O. Reg. 378/07, s. 7 (1).

(2) Despite subsection (1), the following public servants are not eligible to file a complaint about a working condition or a term of employment:

1. A public servant employed in a position that is classified under subsection 33 (1) of the Act as a position within the Senior Management Group.

2. A public servant who is employed as a Branch Director or as a Hospital Administrator.

3. A public servant who is employed in a position with headquarters located outside Ontario.

4. A public servant who is employed by the Crown as a lawyer. O. Reg. 378/07, s. 7 (2).

Notice of proposal to file a complaint

8. (1) A person who proposes to file a complaint shall give notice of the proposal to the following person or entity:

9. A complainant who, at the material time, worked in a ministry shall give the notice to his or her deputy minister.

10. A complainant who, at the material time, worked in a Commission public body shall give the notice to the chair of the Public Service Commission. O. Reg. 378/07, s. 8 (1).

(2) Subsection (1) does not apply with respect to a complaint under Part V of the Act (Political Activity) or a complaint under Part VI of the Act (Disclosing and Investigating Wrongdoing). O. Reg. 378/07, s. 8 (2).

(3) The notice must set out the reasons for the complaint. O. Reg. 378/07, s. 8 (3).

(4) The notice must be given within the following period:

1. For a complaint about dismissal for cause, within 14 days after the complainant receives notice of the dismissal.

2. For a complaint about a disciplinary measure, within 14 days after the complainant receives notice of the imposition of the disciplinary measure.

3. For a complaint about a working condition or a term of employment, within 14 days after the complainant becomes aware of the working condition or term of employment giving rise to the complaint. O. Reg. 378/07, s. 8 (4).

Considerations and conclusions

8The employer argues as its principal objection to the Board’s jurisdiction, that in accordance with regulation 378/07 under the Public Service of Ontario Act, the PSGB does not have the jurisdiction to hear a complaint about a working condition from a retired employee, as the person is no longer a public servant, and, in Mr. Kettle’s case, had not worked for the employer for the six months prior to the deadline for giving notice of his complaint. The employer relies on the Board’s previous interpretation of the statutory provisions in its decision in Burt and the Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) PSGB# P-2010-1988 (O’Neil).

9Mr. Kettle argues that he is in a different position than the complainant in the Burt matter, as he is complaining about salary, rather than a term or condition of employment as Mr. Burt was. Further, he argues that the interpretation argued by the employer should not be considered correct, because it would deprive an employee of the right to legal recourse for the last pay period after he is no longer an employee. The interpretation would, in Mr. Kettle’s view, set a dangerous precedent, essentially leaving the employer unaccountable for contractual obligations, both as to proper pay, and the obligation to treat employees fairly, consistently and in an unbiased manner.

10Mr. Kettle urges the Board to find that the wording “material time”, which appears in s. 8(1) of the applicable regulation, set out above, should be interpreted to mean that eligibility should be determined as of the material time, meaning when he was a public servant. Further, he submits that the meaning of section 7(1) which requires that a public servant be employed continuously for at least six months before the deadline for giving notice in accordance with section 8 of his or her proposal to file the complaint, merely means that a person in the employ for less than six months may not grieve, rather than that he or she has to be employed immediately before the deadline to give notice. Mr. Kettle observes that this is usefully contrasted with s. 6 of the regulation which provides that a person is eligible to file a complaint about dismissal for cause only if he or she had been employed continuously for a least 12 months, immediately before his or her dismissal.

11As to the last point, the Board agrees with Mr. Kettle that, given the distinction between sections 7 and 8 of the regulation, and the absence of the word immediately in s. 8, the fact that he was not employed for six months immediately prior to his complaint is not a bar to the board’s jurisdiction. Nonetheless, the Board remains of the view, as expressed in Burt, that the legislature chose to define public servant in a way which means that only a current public servant can file a terms and conditions grievance, as opposed to a dismissal for cause, and certain other complaints, which a “person” who meets the other requirements may file. The facts are different for Mr. Kettle than for Mr. Burt, both complaints complain about terms and conditions of employment, in Mr. Kettle’s case, his lump sum payment, which he claims is part of his contract of employment, which makes his complaint one related to his terms and conditions of employment.

12As the regulation has not been amended in any way relevant to this complaint, the following observations of the Board in the Burt decision remain true:

It is true that the Board is a creature of statute with limited jurisdiction. Specifically, the type of grievance that Mr. Burt has filed, "a working condition" grievance, presupposes a working condition, which means a feature of the work an employee does. Once the grievor retired, he ceased to be an employee, and ceased to have working conditions. Although the legislature has extended certain rights to former public servants, it did not extend the right to grieve their former working conditions.

I note that it also true, as suggested by the grievor's argument, that there is no explicit statement in the PSOA or the regulations that retired public servants cannot grieve working conditions. Nonetheless, I agree with employer counsel that when it amended the PSOA in 2007, the Legislature put in a definition of public servant and changed the wording in a way which makes it quite clear that its intention was that, in order to grieve working conditions, a grievor has to be employed in a Ministry, rather than just an individual person who might or might not be so employed.

13I have carefully considered Mr. Kettle’s argument that the above interpretation prevents a person from having recourse for salary and other issues, including their final pay, if they have not resolved them prior to leaving the employ. Although the above interpretation means that it is true that there is no recourse to this Board by a former public servant for terms and conditions of employment, depending on the issue, there may be recourse elsewhere. In any event, the PSGB is bound by the statute and the regulations and is not persuaded that it has the jurisdiction to entertain Mr. Kettle’s complaint.

14For the above reasons, the employer’s motion is granted as the Board does not have the authority to hear this complaint about terms and conditions of employment from a former public servant.