PSGB# P-2017-3151; P-2017-3253; P-2017-3254; P-2017-3346; P-2017-3348; P-2017-3349; P-2017-3350; P-2017-3732; P-2017-3733; P-2017-3734; P-2017-3735; P-2017-3794; P-2017-3795

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Tremblay et al

Complainant

• and -

The Crown in Right of Ontario (Ministry of Natural Resources and Forestry)

Employer

BEFORE

Andrew Tremayne

Vice Chair

FOR THE COMPLAINANT

Eric Tremblay

FOR THE EMPLOYER HEARING

Stewart McMahon Treasury Board Secretariat Legal Services Branch Senior Counsel January 18, April 12, July 12, 2019; Written submissions completed: July 26, 2019

Decision

1This decision deals with a preliminary objection raised by the employer concerning complaints filed by 13 senior managers in the Aviation Services Section of the Ministry of Natural Resources and Forestry. The employer takes the position that the Board has no jurisdiction to deal with the complaints because the complainants sent their notices of proposal to file their complaints outside of the time limits required by the regulations. The complainants disagree and say that they complied with the relevant time limits and that their complaints should be heard on the merits.

2Other than the identity of the complainants, the substance of all 13 complaints is very similar: they have questions of law or fact in common, and they arise out of the same transaction or occurrence. As a result, the Board ordered that the complaints would be heard together. The parties agreed that Mr. Tremblay would “take the lead” to deal with the employer’s preliminary objection, because he was the first of the complainants to send a notice of a proposal to file a complaint (from now on referred to as “notice of proposal” or simply “notice”). If Mr. Tremblay’s notice was filed outside of the Board’s timelines, then all of the other notices are also untimely.

3The parties’ disagreement about whether the notices were filed within the time limits required by the regulations is a mixed question of fact and law. As a result, and although most of the facts that are relevant to the employer’s objection were not in dispute, Mr. Tremblay gave evidence at the hearing.

Background to the Complaints

4A summary of the principal facts as alleged in the complaints is helpful to provide the context for this decision. In 2014, the complainants started to receive a special salary allowance, which the employer introduced because Aviation Services was experiencing a retention and recruitment problem. They were paid the salary allowance over and above the normal salary that applied to their classification.

5In late 2017, the employer implemented the Management Job Evaluation Project (MJEP). The main objective of MJEP is to standardize job descriptions for managers who are in similar roles across the Ontario Public Service. MJEP was implemented along with a new compensation plan for managers, which reduced the total number of classification levels and salary ranges. The overall effect was a complete reconstruction of the compensation system for managers, including the complainants. The details are set out in Management Board of Cabinet Directive 33-66 under the PSOA 2006, titled Directive for the Creation of Classes of Position, Salary Ranges, Remuneration and Transition for Middle Managers (dated November 15, 2016, and reissued on September 12, 2017, and March 20, 2018).

6In practical terms, MJEP was used to determine the classification level of all managerial positions in the new system. Managers were then assigned to a new “class of position,” each of which has a salary range. A manager’s “pre-MJEP” salary was used to determine their placement on the new salary ranges, and rules for pay administration were devised and set out in the Directive to assist with the placement. For example, if a manager’s “pre-MJEP” salary was below the minimum of the salary range in effect for the manager’s new class of position, the manager would be placed at the minimum of the new class of position; if the “pre-MJEP” salary were greater than the maximum of the salary range for the manager’s new class of position, the manager’s salary would not increase until the maximum caught up to the manager’s salary.

7The Directive also says that if a manager received a salary allowance, it was to be included in the “pre-MJEP” salary, effectively rolling it into a manager’s base salary, and that going forward, the manager would no longer be eligible for a salary allowance. This provision is of particular relevance to the complainants, because they had been entitled to receive a salary allowance since 2014. Moreover, the salary allowance was always paid in addition to their regular salary.

8The complainants argue that by including the salary allowance in the calculation of the “pre-MJEP” salary, the employer’s new compensation system has worked to their financial disadvantage. Instead, the employer ought to have transitioned them to the new system without consideration of the salary allowance, then placed them in the appropriate salary range based solely on their base salary. The salary allowance should be added to their total compensation at the end.

9The employer argues that the complainants had enough information about this change by November 16, 2017, and that they should have given the Deputy Minister notice within 14 days of that date, which they did not. Mr. Tremblay was the first of this group of complainants to send a notice of proposal, and he did so on December 14, 2017, which still makes it untimely. Mr. Tremblay says that he did not become aware of the working condition or term of his employment that gave rise to his complaint until December 12, 2017 and that he sent his notice two days after that on December 14, 2017, which is well within the 14-day time limit.

Statutory Context

10It is useful to briefly review the Board’s statutory framework to place the parties’ disagreement about the timeliness of the complaints in context.

11The Board only has the powers granted by the Public Service of Ontario Act, 2006 (PSOA), and the regulations made under that legislation, such as Regulation 378/07. That regulation sets out a very specific set of time limits or "windows" of time in which steps must be taken to file complaints about discipline or terms and conditions of employment. To decide the employer’s preliminary objection, it was agreed that the complaints are about a working condition or a term of employment, and not about dismissal or a disciplinary measure.

12For complaints concerning a working condition or a term of employment, notice of a proposal must be given to the deputy minister within 14 days after the complainant becomes aware of the working condition or a term of employment giving rise to the complaint.

13Once notice is given to the deputy minister, the regulation creates a dispute resolution period that must expire before the complainant is entitled to file a complaint with the Board [s. 9(1)]. A complaint will be untimely in the sense of being too early if it is filed before that dispute resolution period has expired and too late if it is filed more than fourteen days after the dispute resolution has expired. The end of the dispute resolution period is measured in different ways, depending on whether or not there is a meeting between the complainant and the deputy minister (or delegate) within 30 days after receipt of the complainant's notice of proposal to file a complaint.

14If there is no meeting within those 30 days, the dispute resolution period expires 30 days after the notice of proposal is given to the deputy minister [s. 9(5)]. If there is a meeting between the complainant and the deputy minister (or delegate) within those same 30 days, the end of the period of dispute resolution is changed to the earlier of the day that is 30 days after the meeting, or the day on which the deputy minister gives written notice to the complainant of their decision about the proposed complaint [section 9(3)]. The end of the dispute resolution period opens a 14-day “window” for the filing of a complaint.

15In this complaint, the employer objects that the complainants have not complied with the time limits set out for the first step in the process, namely the timeliness of the notice of the proposal.

When did the complainant become aware of the working condition or a term of employment giving rise to the complaint?

Evidence

16Mr. Tremblay testified at the hearing. He says that on November 7, 2017, he participated in a conference call led by his Director to learn about MJEP. There were about 150 people from his division listening in on the call from many different locations. At the end of the call, he and the other aviation managers were asked to stay while others left. They were given a 2 page handout titled “Key Messages for Management Pilots and Aviation Maintenance Positions in Receipt of Salary Allowance.” The Director told them to read the handout, and that if they had any questions, they should contact HR. Mr. Tremblay did so, and he was told that more information would be forthcoming.

17Soon after, he received a copy of a Power Point presentation about MJEP dated “November 2017”. Among other things, the presentation listed several key dates for implementation and transition: November 9th/10th when emails with classifications and salary information would be sent to employees; November 13th when classification and compensation rate changes would be visible in WIN; and November 27th when salary paystubs for the November 30th pay date would be visible in WIN.

18Next, Mr. Tremblay received an email dated November 15, 2017, advising him of the classification outcome for his position based on MJEP. He was told that his new classification was M09 and he was told his salary range for two periods: from April 1, 2017 to September 30, 2017; and October 1, 2017 to March 31, 2018. The email, which he says he did not read until November 16, 2017 because he did not have access to his email, also said the following:

Salary and Classification information will begin to be reflected in WIN on November 13th under the “Job Information” tab. Classification and compensation changes are anticipated to begin on November 30th. However, there will be some exceptions. Employees with more complex position/salary histories will be processed in subsequent pay periods.

19The email had some additional information for employees who were receiving a salary allowance:

For those employees in receipt of a salary allowance

You may be aware that, since 2014, salary allowances were provided to certain management pilot and aviation maintenance positions, Treasury Board Secretariat was directed to eliminate salary allowances when implementing MJEP.

To accomplish this, the annual value of the salary allowance will be added to the base salary of employees who were receiving the allowance, prior to the employees being placed in the salary range for their new MJEP classification level.

Because employees in this group have a more complex salary scenario, your pay will be processed for a pay period after November 30.

If you have any questions, you are encouraged to speak with your director and to visit the MJEP website for more information.

The MJEP Team Job Evaluation Initiatives Branch HR Service Delivery Division

20Mr. Tremblay says some of the information in the email was different than what he had been told on November 7th conference call and in the Power Point presentation, specifically that there were now “exceptions” and that the dates when the changes were supposed to be visible in WIN no longer applied to employees with “more complex” situations. As of November 16th, when he read the email, there had still been no quantifiable change to his salary or working conditions that he could use to formulate a complaint, says Mr. Tremblay. The email said, “your current classification is TEN20” so that had not changed yet, and when he checked WIN, the salary note about his salary allowance was still there. He could not tell what had happened to his compensation on that day.

21Mr. Tremblay says that after November 16th he checked WIN every day to see if anything had changed. He understood that the other complainants were doing so as well. The first time he saw anything that he could actually use to quantify a complaint was on December 12, 2017, he says, because this was the day when he saw changes to his WIN account. On that day, he saw his pay stub for the December 28, 2017 payday, and it was clear that his compensation had changed.

22On December 14, 2017, Mr. Tremblay sent an email to Bill Thornton, the Deputy Minister, MNRF. The other complainants are copied on the email. Mr. Tremblay said: “I am writing to advise that I (we) propose to file a complaint about a ‘working condition or term of employment’”. Mr. Tremblay briefly describes the history of the salary allowance and his understanding of its terms. He then says the following:

On December 12, 2017 Aviation managers WIN accounts were updated to show the Permanent removal of the Salary allowance despite signed agreements between the employees and the employer

In accordance with O Reg 378/07, s 8 (4) timing

Salary allowances were removed from aviation services managers as of the WIN update that occurred on Dec 12/2017.

Respectfully,

Eric Tremblay

[etc.]

23In an email dated December 21, 2017, Tony Gazea acknowledged receipt of Mr. Tremblay’s email on behalf of the Deputy Minister. Mr. Gazea added that under the PSOA, only an individual is eligible to file a complaint, and noted that the other complainants would need to do so on an individual basis should they wish to proceed with filing a complaint.

24When Mr. Tremblay was cross-examined by the employer, he agreed that the core of his complaint is the fact that the salary allowance was being rolled into his new MJEP salary. He also agreed that the November 15, 2017 email from MJEP included information about his new salary range, his total compensation including the salary allowance, and that his salary would be “red-circled” because it exceeded the top of the range.

25Mr. Tremblay added that there was not enough information in the November 15th email to allow him to be certain of this and that according to WIN, as of that date he was still receiving his salary allowance as a separate item. Some information and examples about retroactive salary increases were included in the “Key Messages” document that he received after the November 7, 2017 conference call, and also in the November 15, 2017 email, but when he tried to apply this information and the examples to his own situation, it was not clear that his salary would be frozen or that he would be “red circled”. Mr. Tremblay also says that there were repeated delays with the changes: none of the dates in the Power Point presentation or the November 15, 2017 email (about when he was supposed to be able to see the effect of the changes) were accurate. The dates came and went without any changes being visible in WIN, and there was no further clarification or explanation from the employer. In other words, he was not able to see the effect of the changes in black and white until he saw his pay stub on December 12th, 2017.

Submissions and Analysis

26The employer submits that when Mr. Tremblay received the November 15, 2017 email, he knew that his working conditions or terms of employment were going to change. He was told his new classification, his new salary range, and that the salary allowance would be rolled into the base salary to place him on the new compensation plan. He had all of the information he needed to send a notice that he intended to file a complaint on that day. As a result, the 14-day time limit began to run on that day. It expired at the end of November, so when Mr. Tremblay sent his notice of proposal, on December 14, 2017, it was past the time limits.

27The Board has repeatedly stated that time limits go to its jurisdiction to hear a complaint, submits the employer. In a line of decisions starting with St. Amant v. Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 4673 (ON PSGB), the Board has addressed different factual scenarios that have arisen and has said consistently that compliance with the time limits in the regulations is a true precondition to the Board having jurisdiction over a complaint. Hasted/Berezowsky v. Ontario (Ministry of Community Safety and Correctional Services), 2016 CanLII 7473 (ON PSGB) deals specifically with the time limits for sending the notice of proposal to file a complaint and the Board reached the same conclusion: the time limits in the regulations go directly to the Board’s jurisdiction to deal with a complaint. As a result, argues the employer, because Mr. Tremblay did not send his notice until after the 14 day time limit had expired, the Board is without jurisdiction to hear his complaint.

28Mr. Tremblay submits that there was not enough information in the November 15, 2017 email to allow him to be certain of how the changes would affect him. According to WIN, as of that date, he was still receiving his salary allowance, and it was not clear to him at that time that his salary would be frozen. There were also repeated delays with the changes: the dates when he was supposed to be able to see the effect of the changes in WIN came and went without the changes being visible in WIN and with no further comment from the employer. In other words, says Mr. Tremblay, he did not become aware of the working condition or term of employment that he complained about until he was able to see the effect of the changes in black and white, when he saw his pay stub on December 12th.

29The issue to be decided is when the complainant became “aware of the working condition or term of employment giving rise to the complaint” because once that is said to have happened, the notice of proposal to file a complaint must be filed within 14 days. If the notice is filed outside of that time limit, the Board is without jurisdiction to deal with the complaint itself, which was filed later. The Board’s decisions in St. Amant and Hasted/Berezowsky have interpreted and applied the language in s. 8(1)(4) of Regulation 378/07, namely the section that sets out the time limits around when a notice of proposal to file a complaint, so some discussion of the principles in these carefully reasoned decisions is helpful.

30In St. Amant, the complainant had requested a three week unpaid leave of absence. The employer did not provide a timely answer to the request, so on the day after the leave would have ended, the complainant wrote to the employer saying that she would not be taking the leave. One month later, she gave notice to the deputy minister, saying that she intended to file a complaint concerning the employer’s failure to provide a timely answer to her request, and she later filed a complaint with the Board. The employer took the position that the Board had no jurisdiction to deal with the complaint because the notice to the deputy minister was not timely.

31The Board found that the complainant had become aware of the working condition or term of her employment that gave rise to the complaint at the same time that she wrote to the employer saying that she would not be taking the leave. The employer’s alleged failure to provide a firm answer to her request, which was the essence of the complaint, had “brought the matter to a head” the day after the leave would have ended, which was also the day the complainant had written to the employer to say that she would not be taking the leave. As a result, the notice given to the deputy minister fell outside the 14-day time limit set out in s. 8, and the Board was without jurisdiction to deal with the complaint.

32In Hasted/Berezowski, the matter concerned the employer’s alleged failure to pay compensation for on-call duties while the complainants were assigned to acting positions. The complainants had been in the acting assignments for nearly two years, and their notice of proposal to file a complaint was sent to the deputy minister approximately six months after the acting assignments had ended. The employer took the position that the notice was filed outside the time limits required and that the Board was without jurisdiction to hear the complaint. The complainants argued that they had filed their complaint within 14 days of learning of the alleged breach of the working condition or terms of employment. The Board said the following:

[23] . . . .The complainants were scheduled for on call duties throughout their acting assignment without complaint. To suggest that one can accept identified terms of employment without challenge, only to have an opportunity to challenge them long after those terms are no longer applicable as a result of a change in assignment, is to put the employer in an untenable position and alleviates the employee of any responsibility to ensure that they are being compensated appropriately. It also renders meaningless the short and mandatory time limits set by the Regulation in clear contradiction to its intended purpose of bringing issues to the attention of the employer at the earliest, failing which the Board is rendered powerless to deal with the issue.

[24] The complainants acknowledge that they accepted the employer's recitation of their terms of employment at the outset of their assignment. The complainants had expressly been informed that, allegedly for reasons having to do with scheduling at TCI, they were not entitled to the compensation they now claim. In other words, they were aware of the working condition or term of employment - that is, that they would be required to perform on call duties and further, that they would not be specifically compensated for that work. In addition to understanding the employer's position, they were then in a position to investigate and challenge that position. Any complaint about the fact that they were not going to be specifically compensated for such duties crystallized at that time, at the outset of their assignment. Similarly, in St. Amant, supra, the Board found that the time limit ran from the date that the complainant understood that the employer's delay in responding to her request for a leave of absence rendered her unable to utilize the leave. The Board found that the employer's failure to respond by a given date "brought the matter to a head" at that time (para. 9).

[25] The appropriateness of that interpretation is highlighted by the fact that a breach of this asserted working condition or term of employment might well have been characterized as continuing, occurring each time the complainants were required to be on call, thereby allowing the complainants an opportunity to challenge any alleged violation throughout their assignment, although likely limiting the remedy available to them. There was no continuing breach of the alleged entitlement after January 2014, as the working condition was no longer engaged. Neither complainant continued to perform on call duties at TCI after January 2014. Yet they seek compensation for the entire period of their assignment, a remedy that may well not have been available to them had they raised the issue during their assignment.

[26] I am persuaded that, in the circumstances here, a timely notice of proposal to file a complaint was required to have been filed no later than 14 days following the end of the Acting Deputy Superintendent assignment at TCI, or, no later than 14 days from the date of payment reflecting the completion of that assignment. In either case, the July 2014 Notice was well beyond a timely date.

33In Hasted, the complainants were scheduled for on-call duties throughout their acting assignments, and they performed this work without additional compensation and without complaint or challenge. This was the working condition that gave rise to their complaint, and it ended when the acting assignment ended. In St. Amant, the employer’s failure to provide a timely answer made it impossible for the complainant to take the leave of absence. When the requested period of leave ended, still without an answer from the employer, and the complainant confirmed that she would not be taking the leave, it was clear that the working condition that gave rise to the complaint was fully formed, so the 14-day time limit began to run from that time. In both of these cases, the Board found that the complainants became aware of the working condition or term of employment giving rise to their complaints when they had all the facts that were necessary to ground the complaint. After that point, nothing changed, so it was reasonable to expect that the complainants would begin the complaint process at that time.

34In contrast, Mr. Tremblay first became generally aware of the employer’s overall plan during the November 7, 2017 conference call. This was one step in implementing the employer’s new plan. Very soon after that, he was given a copy of the slides from the “Key Messages” presentation. This document set out the dates when classification and compensation rate changes would be visible in WIN (November 13th) and when salary paystubs for the November 30th pay date would be visible in WIN (November 27th). These two milestones were additional steps in the plan’s implementation.

35Notably, these two dates and their accompanying steps were repeated in the November 15, 2017 email, the delivery of which to all managers was another step in the employer’s implementation of the new plan. This email also included two important new pieces of information: “however, there will be some exceptions" and "employees with more complex position/salary histories will be processed in subsequent pay periods." In other words, there would be more steps in the implementation of the plan, and the dates previously announced by the employer would not necessarily apply to all employees.

36As a result, Mr. Tremblay had only enough information on November 15th to understand the employer’s general intentions: the salary allowance would be included with the base salary before his new classification was placed on the new salary ranges. However, the changes were not yet visible in WIN, and according to the information that Mr. Tremblay received from the employer, he was supposed to be able to see the full effect of the changes on either November 13th or at the latest, on November 27th. But things had not gone according to the employer’s plan, because there is no dispute that this information was not visible to Mr. Tremblay in WIN until December 12, 2017.

37The employer had told the managers that they would be able to see the changes in their WIN accounts and see how the changes would in fact affect their pay by a certain date. This was an important part of the employer’s implementation of MJEP and the new compensation plan. All of the communications that the employer sent to Mr. Tremblay told him that he would be able to see this important information, and when. Unfortunately, for whatever reason, the changes were not implemented on the dates indicated in the employer’s communications. Mr. Tremblay was unable to see the effect of the changes until December 12, 2017.

38On November 15th, the employer also told managers that there would be some exceptions and that some employees would be processed in subsequent pay periods. This introduced a material amount of uncertainty into the employer’s implementation plan because no specific dates were provided. This further supports the idea that November 15th was simply another step in the plan’s implementation, and that the information that Mr. Tremblay received that day was only part of the complete picture.

39It is important that complaints are filed promptly whenever that is possible, with the intended consequence that matters are brought to the employer’s attention as soon as possible. It is equally important that employees have all of the relevant facts and are in a position to know whether they have a basis for filing a complaint. Complaints that are speculative or premature are in no party’s best interests.

40It is clear from St. Amant and Hasted that it is easier to identify the point in time when some matters “come to a head” in some cases than in others. In Mr. Tremblay’s case, the situation was more fluid, and the working condition or term of employment, which gave rise to his complaint, crystallized gradually. The information that the employer provided on November 15th was important, but it was not the complete picture. Mr. Tremblay could not be confident that he had all of the information to decide whether there had been a change to his working conditions or terms of employment at that time because other important information that the employer had promised had not yet been made available. That information only became visible in WIN later, after an unexplained delay. As a result, the matter did not “come to a head” until December 12, 2017, when Mr. Tremblay was given all of the information that he had been promised, and he understood how the changes had actually affected him.

Disposition

41To summarize, having carefully considered the evidence and the submissions of the parties, the notice of proposal that Mr. Tremblay sent to the deputy minister on December 14, 2017 is timely. The employer’s preliminary objection is dismissed, and the matter will proceed to a hearing on the merits.