PSGB# P-2019-2337

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Beauchamp

Complainant

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Marilyn A. Nairn

Vice-Chair

FOR THE COMPLAINANT

Samantha Beauchamp

FOR THE EMPLOYER HEARING

Maria-Kristina Ascenzi Treasury Board Secretariat Legal Services Branch Counsel November 2, 2020

Decision

1This complaint alleges that the Crown as represented by the Ministry of the Solicitor General (the “Employer” or “Ministry”) has failed to properly pay the Complainant, Samantha Beauchamp. Ms. Beauchamp alleges that her pay is disproportionate to those employees over whom she has supervisory authority and that the Ministry has discriminated against her by improperly paying male co-workers more. She seeks to be moved to a higher rate of pay and to receive a retroactive adjustment.

2The Employer raised two preliminary objections. It alleged first, that the complaint did not disclose a violation of a working condition or term of employment, and second, that the complaint was filed outside the statutory timelines. The Employer asserted that in either case, the Board had no jurisdiction to entertain the complaint and asked that it be dismissed at this stage. This decision deals with those preliminary issues.

3The following facts were agreed to or were not disputed.

4The Complainant began her employment with the Ministry as a fixed-term/unclassified Correctional Officer (“CO”) at the Kenora Jail on May 23, 2017. Her annual salary was $57,907.20.

5The Complainant then successfully competed for an Operational Manager (“OM”) position at the Kenora Jail. She started work as a full-time classified OM on May 14, 2018 at a salary of $64,468. She is an employee within the Management Compensation Plan (“MCP”) and is excluded from the bargaining unit. On promotion the Complainant received a 12.32% increase in pay in an annual amount of $7070. On April 1, 2019, the Complainant received a merit increase to $65,757. She currently remains at that salary.

6Exhibit 1 was the cover memo to the Complainant’s “Induction Package” as OM. The Complainant acknowledged receiving it shortly after commencing work as an OM. That document sets out the Complainant’s starting rate of pay as an OM at $64,468. The Complainant stated that she had been told by Superintendent Walker and Deputy Superintendent Harding at the jail that she would be receiving a rate of $74,000 but upon receiving this document they told her she should be receiving more but that this was her rate of pay. The Complainant signed the document on May 22, 2018, acknowledging that she had “read and understood the above information”.

7Ms. Beauchamp gave her notice of proposal to file a complaint to the Deputy Minister on November 23, 2019, eighteen months after her promotion to OM. She stated that it was only after the Deputy Superintendent advised her that she could grieve that she filed a complaint.

8The Pay on Assignment Operating Policy filed as Exhibit 2 was used by the Employer to assign the complainant her starting pay rate as an OM. That policy states that pay on promotion is “3% or an increase to bring the employee to the minimum rate of the new salary range, whichever is greater”. At the relevant time, the MCP Salary Schedule provided a starting OM salary of $57,398, which was lower than the Complainant’s salary as a CO. The Employer therefore placed her at the next level of the range, paying an annual rate of $64,468.

9Other than asserting that male co-workers of the same rank received higher rates of pay, the Complainant provided no substantiated particulars. The Employer advised that there are seven full-time Sergeants (OMs) at the Kenora Jail. Five have between 15 and 30 years of service and are therefore placed higher on the salary grid. One male employee hired to the Ministry close in time to the complainant and similarly promoted to OM similarly received an OM start rate of $64,468.

10Ontario Regulation 378/07 made pursuant to the Public Service of Ontario Act (the “Regulation”) allows a complainant to file a complaint about a working condition or term of employment. However, the Board cannot create a term or condition of employment. Its role is to provide enforcement of an existing term. As stated by the current Chair of the Board in Ransome v. Ontario (Heath and Long Term Care), 2006 CanLII 42782 (ON PSGB):

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…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…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.

To summarize, although I agree with the grievor that the Board has jurisdiction over his complaint, it is clear that it is not a complaint that can succeed… because, even assuming all the facts the grievor asserts as true, there is an insufficient basis in law, to award the remedy requested. In other words, a prima facie case for the grievance to succeed has not been established.

11The circumstances here are very similar to those in Ransome. The only term or condition of employment that the Complainant points to in support of her complaint is her rate of pay, assigned at the time she was promoted into the OM position. However, she does not assert that she was not being paid at that rate. She asserts that her rate should be higher. However, the complainant signed the induction package in May 2018 confirming that she had “read and understood the above information”, including the starting salary identified on that document. Even assuming that any verbal representation might have relevance, it is overcome by the fact that the Complainant signed this document without taking further timely action.

12The evidence also does not support a finding of discriminatory treatment. The differentiated rates as between colleagues at this jail are based on length of service. This small sample of seven employees is insufficient to support the Complainant’s allegation that the policy and resulting rates are discriminatory based on gender as OMs work across the province at every institution and there is no evidence as to that broader application of the policy. A male colleague of equal tenure was paid at the same rate as the Complainant. There is no evidence other than the Complainant was being paid in accordance with the Pay on Assignment Policy in accordance with the pay provisions applicable to the OM classification.

13In any event, and notwithstanding the above, this complaint must be dismissed on the basis that it fails to meet the timelines for filing a complaint. Sub-sections 8(1) and 8(4) of the Regulation set out the time frames for initiating a complaint:

8. (1) A person who proposes to file a complaint shall give notice of 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. O. Reg. 378/07, s. 8 (4).

[14] In Hauth v Ontario, [2013 CanLII 74165](https://www.canlii.org/en/on/onpgb/doc/2013/2013canlii74165/2013canlii74165.html), cited in Hasted v Ontario (Community Safety and Correctional Services), [2016 CanLII 7473 (ON PSGB)](https://www.canlii.org/en/on/onpgb/doc/2016/2016canlii7473/2016canlii7473.html) the Board summarized the caselaw and concluded that a complainant is not eligible to file a complaint unless the strict filing requirements of the Regulation are met, failing which, the Board has no authority to entertain the complaint:

2In three recent cases, the Public Service Grievance Board considered the legal implications of the requirement imposed by section 8 of Regulation 387/07 to give notice of a complaint to the Deputy Minister. In Jackson v. Ontario (Ministry of Community Safety and Correctional Services) [2011] O.P.S.G.B.A. No. 8 the Board made it clear that notice to the Deputy Minister was an essential precondition for it to take jurisdiction over a complaint….

3A similar approach was taken by the PSGB in a second case, Muldoon v. Ontario (Ministry of Community Safety and Correctional Services) [2011] O.P.S.G.B.A. No. 13, where the complainant had failed to give the required notice in respect of several complaints. The Board stated in that case:

Given that the required notice was not given by the complainant in respect of any of these complaints, the legal consequences are that the complainant was not eligible to file these complaints with the Board so that these complaints are not properly before the Board.

4… In the third and most recent case, St. Amant v. Ontario (Ministry of Community Safety and Correctional Services) [2013] O.P.S.G.B.A. No. 2, the Board dealt with the situation where notice had been given but that notice fell outside the required time limits. The Board stated in that case:

… Given the mandatory language of the 14 day time limit set out in section 8, the Board must conclude that notice given within that time limit is also just as much a precondition for it to assume jurisdiction over a matter as the requirement to give the notice.

5… As the Board held in the St. Amant case, notice within that time limit is a precondition for the Board to assume jurisdiction over a complaint. The late filing of this notice means that the complainant was not authorized by that Regulation to file a complaint with the result that the Board has no jurisdiction to deal with it.

6The language used to prescribe time limits in the new Regulation 378/07 leaves no doubt as to its mandatory nature. Given the mandatory nature of these time limits and the lack of any express statutory authority to relieve against these mandatory time limits, the Board has no power to alter the jurisdictional consequences of a failure to comply with the time limits set out in section 8 of that Regulation. It is for this reason that this complaint must be dismissed…the Public Service Grievance Board, as a tribunal created by statutory enactments, can only stay within the limits of these enactments.

(emphasis added)

15The Complainant moved into her new position as OM in May 2018 and was advised at that time as to her rate of pay. She seeks to change that rate through this complaint. Although she informally questioned her rate of pay with her manager at the time, she did not give notice to the Deputy Minister until November 23, 2019, eighteen months later. The Regulation requires that the notice be given within 14 days of becoming aware of the term of employment giving rise to the complaint, not when the employee becomes aware of her ability to file a complaint with the Board. Even assuming that the complaint asserts a breach of a term of employment, this complaint is too late. The Board is without jurisdiction to entertain the complaint.

16Having regard to all of the above, this complaint is hereby dismissed.