PSGB#2015-3183

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Kyle Davis

Complainant

• and -

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

Employer

BEFORE

Marilyn A. Nairn

Vice Chair

FOR THE COMPLAINANT

Kyle Davis

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel

HEARING

June 1, 2016

Decision

1This application asserts a claim to a higher salary rate than the complainant is currently receiving. The essential facts were not in dispute.

2The complainant was employed as an Operational Manager (“COM01”) from at least 2012, at Toronto West Detention Centre until the closure of that facility. In November 2014, the complainant transferred to the Toronto South Detention Centre in his COM01 classification. The complainant competed for a Deputy Superintendent position but was not successful. However on April 20, 2015 he was placed in an Acting Deputy Superintendent assignment, and, in December 2015 he was confirmed in the Deputy Superintendent classification on a permanent basis.

3On his move to the Acting Deputy Superintendent role in April 2015, the complainant was given a wage increase to reflect a pay on assignment amount in accordance with the “Pay on Assignment Operating Policy” filed at the hearing.

4On December 15, 2015, Steve Orsini, Secretary of the Cabinet, forwarded a memo to all OPS managers. The memo expressly recognized that managers’ earnings had been frozen at 2011-2012 levels while bargaining unit staff had experienced some movement through the salary grid. The memo indicated that an advisory panel had been established with a mandate to review and report with respect to issues of management staff recruitment and retention. It went on to advise that, pending that report, interim compensation changes had been approved for 2015-2016, designed to ensure that “non-bargaining unit employees do not fall further behind their counterparts”.

5That memo provided for “a one time in-range movement for employees who are within the salary range for their position, effective April 1, 2015”. There was no dispute that this reflected a 5% increase for managers. For the complainant, this 5% increase was applied retroactively to his COM01 salary rate as of April 1, 2015.

6A further increase of 1.4% was instituted effective January 1, 2016. This increase was applied to the complainant’s salary at that time. There was also a change provided to the paramedical benefit coverage that is not relevant here.

7So, although not implemented until January 2016, a 5% increase was applied to the complainant’s COM01 salary rate effective April 1, 2015 and he was paid retroactively for that increase. He also received the 1.4% increase effective January 1, 2016.

8During the hearing questions arose as to what retroactive amounts the complainant had received and whether they properly reflected the complainant’s entitlements. Employer counsel subsequently provided a detailed breakdown of the retroactive payments made.

Positions of the parties

9The complainant seeks to have a 5% increase applied to his Deputy Superintendent rate or otherwise be awarded an increase to his salary such that he would be paid the same as all other Deputy Superintendents. It is the complainant’s position that he is being paid less than other Deputy Superintendents at the institution while doing the same work and carrying the same responsibilities. The complainant argued that the memo recognized that the increases were designed so that employees did not fall behind their counterparts. He notes that he ‘missed’ the April 1, 2015 increase by 19 days, resulting in a permanent salary rate that is lower than those who received the 5% increase to their Deputy Superintendent rate on April 1, 2015. He argued that the 5% increase was applied to a position that he no longer held and should have been applied to his Deputy Superintendent rate. He also noted that more recent hires into the Deputy Superintendent position are being paid at a higher rate. The complainant asserted bad faith on the employer’s part both because he asserted that the employer had rebuffed his attempts to address the matter and because his resulting salary rate was not comparable to others in his same classification. The complainant’s concern is that he is disadvantaged compared to others in the same classification.

10It is the employer’s position that the complainant was entitled to, and did receive a one-time 5% increase to his rate effective April 1, 2015 with a further pay on assignment increase effective April 20, 2015 when he moved into the Acting Deputy Superintendent role. In addition, argued the employer, the complainant was entitled to, and did receive a 1.4% increase effective January 1, 2016. Those are the terms and conditions of employment applicable to the complainant, argued the employer, and there was no basis for any further adjustment.

11The employer referred to prior Board decisions in Hugh MacDonald and The Crown in Right of Ontario (CSCS), File #P2012-4718 et al., dated November 7, 2015 (O’Neil); Garrett et al. and The Crown in Right of Ontario (MOHLTC), File #P2003-1670, dated May 17, 2005 (O’Neil); and Kevin Ransome and The Crown in Right of Ontario (MOHLTC), #P2005-2314 et al., dated December 5, 2006 (O’Neil). The employer argued that a complainant must establish that a term or condition of employment both exists and has been breached before the Board may grant any remedy and that no such term of employment has been established here. The fact that the complainant’s resulting salary is lower as an unfortunate effect of timing is not sufficient, argued the employer, to give the Board jurisdiction over the matter.

Decision

12For the reasons that follow, the complainant’s requested claim to a higher wage rate must be dismissed. It is essentially a claim for parity with others in his current classification. However, such parity is not mandated by the terms and conditions of employment established before me. The Board’s jurisdiction is limited to ensuring that the existing terms and conditions of employment have been appropriately applied in the circumstances.

13The employer, via the memo, provided a one-time increase to salary effective April 1, 2015. That memo is clear that the increase is both a one-time increase and effective as of April 1, 2015. It therefore must be applied to the employee’s salary on that date. Contrary to the complainant’s assertion that the COM01 was a position he no longer held, his classification as of April 1, 2015 was that of a COM01. His Deputy Superintendent role did not begin until April 20, 2015 and he was assigned to that classification in an acting capacity only.

14There is no basis for concluding that the complainant was entitled to have this one-time increase applied to a Deputy Superintendent salary rate. It was only in December 2015 that he was promoted to the classification of Deputy Superintendent, long after the effective date of the one-time increase on April 1, 2015.

15“Fairness”, however that may be defined, is not the test before the Board. The issue is, what do the terms and conditions of the employment contract between the employer and the individual provide? The now Chair of this Board summarized that issue as follows at page 7 of the decision in Kevin Ransome, supra:

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. In that respect, the grievor argued that the difference is discriminatory. However, there is nothing to suggest that the differential in payment was for an improper reason, such as discrimination on the basis of race, gender, religion or some other identified illegal ground, or that the decision to pay the grievor in the manner that it has, was somehow arbitrary, or in bad faith. The facts before me indicate that the grievor was paid in accordance with the Pay On Assignment policy when he was promoted into management and there is nothing to suggest he has not been paid according to the other pay provisions applicable to his classification since. What he argues is that there should be a term or condition of his employment that would ensure he was paid better than those promoted or hired later. This is a complaint about the absence of a term or condition of employment of the kind he would like, rather than a request to remedy a breach of an identifiable existing term or condition of his employment. The facts before me simply do not form a sufficient basis for such an argument to succeed. What the grievor is claiming would be tantamount to creating a term or condition of employment, rather than awarding a remedy for the breach of an existing term or condition of employment.

16No particulars were asserted supporting any claim of improper discrimination. It is not sufficient to establish a claim of improper discrimination to simply assert that one is paid at a different rate than others performing the same work. A claim of improper discrimination rests on whether the difference in treatment flows from reliance on a prohibited ground. Nor is there evidence of arbitrariness or bad faith on the part of the employer. Bad faith typically requires evidence of malicious intention. The employer here was clear that it values highly the work performed by the complainant in a busy institution. It also notes that his salary rate is a function of timing. That is not evidence of either arbitrariness or bad faith. That is simply an accurate statement reflecting the fact that the complainant was not promoted to the Deputy Superintendent classification until December 2015, even though he was performing the work of that position from April 20, 2015 in an acting capacity.

17To the extent that the memo makes reference to one’s ‘counterparts’, that is a reference to bargaining unit personnel. The memo discusses the employer’s recognition that non-bargaining unit salaries had not increased while salaries of those in the bargaining unit had seen upward movement. That is the impetus for the 5% increase effective April 1, 2015 – so that managers would not fall further behind those in the bargaining unit. It does not speak to seeking parity as among managers.

18So what was the complainant entitled to? Effective April 1, 2015 the complainant was entitled to a one-time 5% increase to his COM01 rate. Any further increases flow from that rate. There is no dispute that he received the 1.4% increase effective January 1, 2016, subject to it being applied to the correct underlying salary rate.

19Effective April 20, 2015 the complainant was entitled to a pay on assignment increase. That increase is governed by the terms of the Pay on Assignment Operating Policy. As a result of questions raised during the hearing concerning retroactivity paid to the complainant, the employer subsequently provided specific information to the complainant and the Board as to salary amounts, adjustments, and retroactivity paid.

20To the extent that the complainant finds himself at a lower salary rate than some of his colleagues, that is not a matter able to be rectified by the Board. As in the Kevin Ransome decision, supra, the complainant essentially argues that there ‘should’ be a term of employment entitling him to better salary parity with other Deputy Superintendents. However, the Board has only the jurisdiction to interpret and apply the existing terms and conditions of his contract of employment. There is no term or condition of employment established that would entitle the complainant to have his salary adjusted as he requests.

21I will remain seized should any issue arise with respect to the appropriate calculation of retroactivity paid to the complainant. However, the complainant’s request that he be paid a 5% increase to his Deputy Superintendent salary rate or that he be paid the same as all others in the same classification is hereby dismissed.