PSGB#P-2016-2542

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Gauvin

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

John Hasted

FOR THE EMPLOYER

Shiran Brener Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

November 27, 2017

DECISION

1The Form 1 filed in this matter seeks a 6.4% increase in compensation for Grace Gauvin, an increase that other managers received, such increase to be made retroactive to Ms. Gauvin’s date of hire in her position as Sergeant with the Ministry of Community Safety and Correctional Services.

2The employer raised two preliminary objections to the Board’s jurisdiction to entertain the complaint based on the timeliness of the complaint. In addition, during the hearing it became apparent that the employer understood there to be only one formal complainant, whereas both Ms. Gauvin and Aaron Vincentini attended the hearing to make their case. Both individuals are Sergeants at the Ontario Correctional Institute (“OCI”).

3The background facts were not in dispute. On November 30, 2016 the employer issued a memo to all managers, recognizing that managers had experienced a prolonged period of compensation restraint and wage freezes, while bargaining unit staff had received some increases and had moved on their salary grids. The memo advised that steps were being taken to address non-bargaining unit employee compensation “in a fair and equitable way”, setting out three general areas of improvement.

4The memo noted that details of the changes were included in the materials attached. The attached fact sheets provided more detail as to the nature of those improvements and referenced a total 6.4% increase to salary effective April 1, 2016. That increase was to be applied retroactively.

5Ms. Gauvin began working as a Sergeant on April 25, 2016. Mr. Vincentini began work as a Sergeant on October 3, 2016.

6On December 6, 2016 a meeting of the Operational Managers Standing Committee was held that included employer representatives (Operational Managers are now also referred to as Sergeants). During that meeting the compensation issue was discussed and the employer clarified that the 6.4% increase would be payable to members of the Operational Manager group, provided that they held that position as of April 1, 2016. That limitation was not apparent from the November 30, 2016 memo, given the retroactive nature of the increase at the time it was issued.

7While not apparent from the November 30, 2016 memo, the Minutes of the December 6, 2016 meeting confirm that Treasury Board Secretariat advised that the compensation increase would apply as follows:

COM group will receive 6.4% (5% plus 1.4%) provided they were in the position on April 1, 2016 (retroactive). …Effective April 1, 2017, those not at the maximum range, are eligible up to 3.9% (2.5% plus 1.4%) payable in the fall of 2017 following completion of the Job Evaluation Project….

8Those Minutes were not distributed to affected employees. Nor was the OCI Sergeants’ representative, Ms. Berezowsky, present at the meeting. On December 14, 2016, Ms. Gauvin emailed Joy Gordon-Adams, a Human Resources Advisor, seeking clarification of the application of the 6.4% increase and noting her view that to be excluded would result in her receiving less salary than her counterparts for the same work, reflecting an “unfair plan”.

9Later that day, Ms. Gordon-Adams responded, confirming that only employees in an eligible position on April 1, 2016 were eligible to receive the 6.4% base salary adjustment. The email went on to note that those hired after April 1, 2016, whose base salary was below the new salary range minimum, would have their base salary adjusted to the new salary range minimum.

10On December 22, 2016 Ms. Gauvin and Mr. Vincentini sent a joint letter to the Deputy Minister, providing notice of their proposal to file a complaint. That notice asserted that the manager compensation initiative had been applied “in a discriminatory way against new managers”, causing “compression issues that this initiative was meant to address”. The notice further stated that new managers “were being disadvantaged by this unfair [roll] out of the compensation”.

11On January 4, 2017, Jessica Howarth, on behalf of Director Kevin Sawicki (the Deputy Minister’s delegate), confirmed receipt of the notice of proposal in an email to Mr. Vincentini.

12On January 5, 2017, Ms. Howarth, again on behalf of Director Sawicki, confirmed receipt of the notice of proposal in an email to Ms. Gauvin.

13On January 10, 2017, Maxine Black, on behalf of Christie Reed, Labour Management Liaison Advisor and David Marincola, Employee Relations Advisor, sent one email to both Ms. Gauvin and Mr. Vincentini for the purpose of setting up a date for the “hearing” of the complaint.

14A meeting was subsequently scheduled. That meeting was held by telephone conference call on January 18, 2017 to discuss the complaint. Neither Ms. Gauvin nor Mr. Vincentini received any written employer response following the meeting.

15A Form 1 dated February 16, 2017 was received by the Board on February 16, 2017. It identified only Ms. Gauvin as the complainant. A letter dated February 22, 2016 acknowledging receipt of the Form 1 and assigning a file number was sent by the Board to Ms. Gauvin’s representative. That letter and covering email identified the complainant solely as Ms. Gauvin. On a review of the Board’s internal process, it appears that Ms. Gauvin’s representative responded to Board staff on February 23, 2017, advising that the acknowledgment letter should refer to “et al”, “as Mr. Vincentini was also part of the complaint”. Board staff appear to have added that reference without further inquiry and the matter proceeded to hearing. It appears that the complainants relied on that indication to conclude that they were both properly included on the complaint.

16Mr. Vincentini did not sign the Form 1 submitted by Ms. Gauvin. The Form 1 makes no reference to Mr. Vincentini. Only the attached copy of the notice of proposal to file a complaint refers to both individuals. Nor did Mr. Vincentini file a Form 1 on his own behalf.

17Ontario Regulation 378/07 under the Public Service of Ontario Act, 2006, S.O. 2006, c. 35, Sched. A, provides as follows:

Complaint about a working condition or a term of employment

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,

(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 10.

Filing a Complaint

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.

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

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.

Period for dispute resolution

9. (1) A complainant is not entitled to file a complaint with the Public Service Grievance Board until expiry of the period provided under this section for dispute resolution.

(3) If the complainant was required to give a deputy minister notice of the proposal to make the complaint, and if the deputy minister or his or her delegate meets with the complainant within 30 days after the deputy minister receives the notice, the period provided for dispute resolution expires on the earlier of,

(a) the day that is 30 days after the meeting; or

(b) the day on which the deputy minister gives written notice to the complainant of his or her decision about the proposed complaint.

(5) If the deputy minister…or his or her delegate does not meet with the complainant within 30 days after receiving the notice, the period provided for dispute resolution expires 30 days after the notice was given to the deputy minister…

Filing a complaint

10. (1) Within 14 days after the expiry of the period, if any, provided for dispute resolution under section 9, the complainant may file the complaint with the Public Service Grievance Board by delivering it to the chair of the Board.

(2) The complaint must set out the reasons for the complaint and must include the notice of the proposal, if any, to make the complaint and such other information and documents as the Board may specify.

18At the hearing, the Board heard the evidence and submissions of both Ms. Gauvin and Mr. Vincentini as well as that of the employer on the preliminary issues and the merits of the complaint. In argument, the employer addressed three preliminary objections, asserting that all went to the Board’s jurisdiction to entertain the complaint. The first relates to the Form 1 having been filed only by Ms. Gauvin. The second and third relate to timeliness issues. However, as set out below, even assuming that the Board has the jurisdiction to entertain the application, the complaint does not succeed on its merits.

The Form 1 issue

19One notice of proposal to file a complaint was forwarded to the Deputy Minister by both Ms. Gauvin and Mr. Vincentini. Although initially responding separately, the employer then dealt with the two individuals together. However, the employer took the position that such treatment did not amount to a waiver of the requirements of Regulation 378/07 (the “Regulation”). It was Mr. Vincentini’s position that he relied on the joint notice to the Deputy Minister and the reference to “et al” in the Board’s correspondence to understand that he was included in Ms. Gauvin’s complaint.

20The Form 1 filed by Ms. Gauvin makes no reference to Mr. Vincentini at all, except for the inclusion of his name on the attached notice of proposal to file a complaint. The Form 1 refers only to Ms. Gauvin’s concerns and circumstances, although the general thrust of Mr. Vincentini’s concern may be deduced from the attached notice of proposal.

21The Regulation providing for the filing of a complaint before the Board consistently refers to the singular, whether it be reference to “a public servant” “a person” or to “a complainant”. Section 4(1) of the Regulation provides the basic right to file a complaint about a working condition or term or employment to “a public servant who is aggrieved…about a term of his or her employment”.

22This language indicates that a complaint before the Board is personal to the complaining employee. The Board must be satisfied that each person seeking to complain to the Board has engaged the process of filing a complaint under the Regulation. This is so in order that the Board be satisfied that the individual is properly a party before it, with all the attendant rights and responsibilities that flow from such participation in the process.

23This may be accomplished in two ways. A Form 1 may be filed by each individual employee seeking to make a complaint to the Board. In such a case, where there are common issues that require determination, the Board may consolidate the hearing of individual complaints. Alternatively, in certain instances, the Board may assess the complaints and hold some in abeyance pending the outcome of a hearing of one of the complaints.

24Secondly, a group complaint may be filed. In its decision in Kaine v. Ontario (Children and Youth Services), 2014 CanLII 48097 (PSGB) at paragraph 11, the Board noted that the Regulation neither prescribes nor prohibits the filing of a group complaint. That decision also notes that where all members of the intended group sign one complaint, no issue has been raised. However, where, as here, the Form 1 makes no reference to a particular individual, that individual is not a complainant before the Board and that Form 1 cannot transform itself into a group complaint by the addition of a reference to “et al”.

25Board staff did issue a Notice of Proceeding referring to “Gauvin et al”, further to the communication from Mr. Hasted, and without other direction. Board staff made an administrative error in adding the “et al” to the style of cause and correspondence, lending credence to the reliance thereby placed on it by Mr. Vincentini. Given the disposition on the merits of the complaint, that reliance does not affect the outcome, even were I to assume that Mr. Vincentini properly filed a complaint. However, it must also be noted that the Board cannot clothe itself with jurisdiction where none exists and it is incumbent on persons seeking to complain to the Board to meet the requirements of the Regulation in order to find themselves properly before the Board. As is often noted by the Board, it is a creature of statute and has only the express and limited authority provided to it under the Regulation.

26I find therefore that Mr. Vincentini is not properly a complainant before the Board based on the Form 1 filed by Ms. Gauvin. In the result, there is no complaint from Mr. Vincentini properly before the Board for consideration.

The timeliness issues

27The employer objected to the timeliness of the complaint on two grounds. First, it asserted that the notice of proposal to file a complaint was given beyond the 14-day time limit set out in sub-section 8.(4) 3 of the Regulation. Second, it asserted that the complaint to the Board was filed prematurely, before the dispute resolution period had passed, in contravention of sub-sections 9. (1) and 10. (1) of the Regulation.

a). Assertion of a late filing of the notice of proposal to file a complaint

28It was not challenged that the complainant Ms. Gauvin did not become aware of the April 1, 2016 limit on eligibility for the compensation increase until December 14, 2016 when Ms. Gordon-Adams clarified that limit pursuant to Ms. Gauvin’s inquiry. Although discussed at the December 6, 2016 meeting of the Operational Managers Standing Committee, there was no evidence that that information was conveyed to managers at OCI and the Minutes record that their representative, Ms. Berezowsky, was not in attendance at that meeting. On the evidence, December 14, 2016 was therefore the first occasion that Ms. Gauvin became aware of the term of employment giving rise to her complaint. (I have no evidence as to when Mr. Vincentini became aware of the limit complained of, although it was implied that such information came to his attention once Ms. Gauvin became aware. However, such evidence would be of no assistance as no proper complaint from Mr. Vincentini is before the Board.)

29Notice of proposal to file her complaint was given by Ms. Gauvin on December 22, 2016, eight days after becoming aware of the term of employment giving rise to her complaint, and properly within the 14-day time limit for the giving of that notice under sub-section 8. (4) 3 of the Regulation. This aspect of the employer’s timeliness objection therefore fails with respect to Ms. Gauvin’s complaint.

b). Assertion of the premature filing of the complaint with the Board

30The employer asserted that Ms. Gauvin filed her application to the Board prematurely, before the dispute resolution process expired, in contravention of sections 9 and 10 of the Regulation. It asserted that the complaint was filed with the Board two days in advance of the dispute resolution process expiring, in circumstances where the employer had not provided, and did not provide any written response following the meeting of January 18, 2017 (which, I note, is not a “hearing” but a meeting). Even were one to assume that the employer’s argument had merit, one might be hard-pressed to appreciate why a preliminary objection would be raised to the hearing of the substance of a complaint filed with the Board two days early. There is no prejudice to the employer in having the merits of a complaint, of which it was fully aware, heard and determined in the usual course. In any event, it is unnecessary for me to make a determination with respect to this preliminary issue, given that the complaint fails on its merits.

The merits of the complaint

31These Sergeants are seeking to have their wage rate increased by the amount provided for in the November 30, 2016 memo, on a pro-rated basis, from when they commenced employment in the position.

32Assuming a timely complaint and one that was applicable to both Ms. Gauvin and Mr. Vincentini, the complaint is properly dismissed on its merits. The Board has the jurisdiction to interpret and apply existing terms of employment. In this case, the term of employment was clear. An increase in compensation was provided to those Sergeants who were employed in that role as of April 1, 2016. Neither Ms. Gauvin nor Mr. Vincentini was employed in that position as of that date. Therefore, that term of employment, a 6.4% increase to compensation, does not apply to them.

33Although the complainants argued that they were not seeking to be compared with their colleagues who were employed as of April 1, 2016, their claim that consistency with the Deputy Minster’s expressed interest in achieving fairness reflects an argument that necessarily requires a comparative approach. In the notice of proposal to file a complaint, in the Form 1, and in submissions, it was asserted that these individuals were placed at a disadvantage compared to their colleagues. As to the assertion of the application of an arbitrary “cut-off” date, April 1 is the start of the fiscal period for the employer, reflecting a typical and usual date for implementing a compensation increase.

34While Ms. Gauvin’s representative sought to distinguish the issue here, it is, in all fundamental respects, the same as that considered in Kevin Ramsone and The Crown in Right of Ontario (Ministry of Health and Long-Term Care), PSGB #2005-2314 et al, decision dated December 5, 2006 (O’Neil), wherein the Board stated at pages 6-7:

The issue is primarily a question of contract law. The Board must answer the question: Is it a term or condition of the grievor’s contract with the employer that he should be paid the additional money he claims? It is clear that there is no specific provision that the grievor has identified that would entitle him to the significant wage increases he claims. His grievance is rooted instead in the general statements in the employer policy and guidelines about fairness and equity, which for the purposes of this motion will be assumed to form part of the grievor’s contract of employment. However, they are general statements of intention, with no promise to the grievor that sufficiently addresses his claim…

…The claim as written is not one the Board is in a position to grant either, as the Board has no power to award wage increases, only to enforce established terms and conditions, including those dealing with pay. If the grievor had shown that the employer had agreed to pay a wage increase that he did not receive, then the Board could enforce the agreed wage increase. The material before me does not establish such an agreed or promised wage increase, nor one that he is entitled to on more general principles of fairness.

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…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.

(emphasis added)

35These individuals were not employed as Sergeants on the date that this increase went into effect. The fact that the term of employment was instituted on a retroactive basis is irrelevant. The term of employment was only applicable to certain individuals, those employed as of April 1, 2016. There is no evidence of any improper differential treatment. It is simply the case that the term of employment that Ms. Gauvin and Mr. Vincentini are seeking to have apply to them, does not apply to them, and the Board has no authority to order otherwise. Thus, even assuming that this complaint was properly filed and timely, it is hereby dismissed on its merits.

36Having regard to all of the above, this complaint is hereby dismissed.