PSGB# 2020-1834

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Shkuratoff

Complainant

• and –

The Crown in Right of Ontario (Ministry of Children, Community and Social Services)

Employer

BEFORE

Marilyn A. Nairn

Vice Chair

FOR THE COMPLAINANT

Kevin Shkuratoff

FOR THE EMPLOYER

Erika Montisano Treasury Board Secretariat Legal Services Branch Counsel

HEARING

July 26, 2021

Decision

1In his notice of proposal leading to this complaint, Kevin Shkuratoff (the “Complainant”) set out his allegation against the Ministry of Children, Community and Social Services (“MCCSS” or the “Employer”) as follows:

I am writing today to grieve that the employer failed to follow its own Policy and Procedures regarding Fair and Equitable treatment of all employees. To be specific, at the Brookside Youth Center in Cobourg Ontario all OPSEU bargaining staff and all Operational Managers within the security fence of the facility are receiving COVID-19 enhanced pay except for the department heads. This means that every Ontario Ministry employee within the security fence is receiving enhanced pay except for two (2) managers. I am requesting to be treated fairly and equally the same as every other employee in the secure section of the facility and have the settlement retroactive to the start date of the pay enhancement.

2The Employer takes the position that the complaint does not make out a prima facie case for the remedy requested. More specifically, the Employer asserts that the Complainant cannot point to an applicable term or condition of his employment that he alleges the Employer has breached. The Employer relies on Section 4 of Regulation 378/07 (the “Regulation”) made pursuant to the Public Service of Ontario Act, 2006, S.O. 2006, c. 35 as amended (the “PSOA”). The Employer also asserts that the Board does not have the jurisdiction to award the remedy requested. Those issues proceeded to hearing. Evidence and submissions were heard by videoconference and documentary material was filed. The facts were either not in dispute, or the Complainant had no evidence to dispute facts relied on by the Employer.

3Mr. Shkuratoff’s position is Coordinator, Maintenance Services at the Brookside Youth Centre, a facility operated through the Employer’s Youth Justice Division. There is no dispute that he is excluded from the bargaining unit and is considered part of the management team. As part of his responsibilities, Mr. Shkuratoff plans and coordinates the maintenance and monitoring of various facility systems and he supervises tradespersons, housekeeping staff, and maintenance workers who work throughout the facility. He monitors construction and renovation projects and is responsible for ensuring the provision of appropriate environmental conditions.

4Mr. Shkuratoff's office is situate within the secure area of the facility as are the offices of Youth Service Managers (“YSMs”) who supervise Youth Service Officers (“YSOs”) who work directly with the clients. Other managers such as Business Managers or Food Service Managers have offices located outside the secure area of the facility. Coordinator, Maintenance Services is a Schedule 5 position, with job code M0611C. YSM is also a Schedule 5 position but with job code M0712D. Health Care Managers are classified as Schedule 6 employees. Mr. Shkuratoff receives custodial pay in the same manner as YSMs.

5Mr. Shkuratoff became aware that certain employees within the facility were in receipt of additional temporary compensation due to the COVID-19 pandemic. According to Mr. Shkuratoff, he is the only individual who works within the secure area of the Brookside facility who did not receive some form of enhanced ‘COVID’ pay. It was not disputed that the Health Care Manager, who also works within the secure area of the facility, did not receive enhanced pay, but was allowed to claim overtime pay during this temporary period, a premium to which Health Care Managers are not normally entitled.

6There were two categories of temporary enhanced pay provided in the context of the COVID-19 pandemic, “pandemic pay” and “Institutional COVID-19 Response Pay”

Pandemic Pay

7On May 29, 2020, Ontario Regulation 241/20, was promulgated pursuant to the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 and its application was made retroactive to April 24, 2020. That Regulation identified employees in the public service and the broader public service who were eligible for pandemic pay as follows:

1. In this Order,

“eligible employee” means an employee who is entitled to receive temporary pandemic pay in accordance with the document entitled “Eligible workplaces and workers for pandemic pay” dated May 29, 2020 and available at https://www.ontario.ca/page/eligible-workplaces-and-workers-pandemic-pay; (“employé admissible”)

Application

2. This Order applies to the following, province-wide:

3. Eligible employees.

8The document referenced in the Regulation, “Eligible workplaces and workers for pandemic pay”, also dated May 29, 2020, included maintenance staff in youth justice facilities, such that the staff that Mr. Shkuratoff supervises were eligible for and did receive the enhanced payments set out in the Regulation. However, that document also stated:

Temporary pandemic pay is designed to support eligible full-time, part-time and casual employees. It does not apply to management.

To receive pandemic pay, you must work in both an eligible:

• role (i.e. be an eligible worker)

• workplace

(emphasis added)

9In a drop-down option to “learn more”, a section describing who is eligible stated:

Pandemic pay does not apply to management employees, including individuals in managerial positions who were redeployed to work in eligible front-line positions.

(emphasis added)

10Section 3 of Regulation 241/20 provides:

3. Despite any other statute, regulation, order, policy, arrangement or agreement, including a collective agreement, the following rules apply with respect to temporary pandemic pay:

4. No employer, tribunal, arbitration board…may expand eligibility for temporary pandemic pay or require the payment of temporary pandemic pay to employees who are not eligible employees.

Institutional COVID-19 Response Pay

11By memo dated April 28, 2020, from Assistant Deputy Minister Mitchell, and addressed to Youth Services Managers in Youth Justice facilities, a second type of temporary pandemic pay within the Youth Services Division was announced. That memo stated, in part:

I would like to take the opportunity to advise you that the government has announced a new temporary compensation measure (Institutional COVID-19 Response Pay) for all frontline Youth Services Managers who work in a youth facility.

This compensation recognizes the vital role Youth Services Managers play within our youth facilities to ensure the health and safety of fellow staff and our youth is maintained. You are often called upon to lead the team, fill in the gaps and help staff manage crisis situations, often making split-second decisions under extreme stress and in difficult conditions. As part of the frontline, Youth Services Managers are on the floor working directly with youth, de-escalating volatile situations, and supporting frontline staff.

… In addition to his/her regular salary, Youth Services Managers shall be eligible for consideration for an additional lump sum payment of up to $890 per month, subject to… conditions…

(italics added)

12That enhanced payment derived from Directive #33-89 from Management Board of Cabinet, titled “Directive for Remuneration” (the “Directive”), dated April 28, 2020. The Directive states:

Whereas in recognition of the dedication, long hours and increased risk of working to contain the COVID-19 outbreak, the Ontario government has provided frontline staff with a temporary pandemic payment.

And whereas, the Management Board of Cabinet has determined it necessary and advisable to authorize time-limited special Institutional COVID-19 Response Pay for public servants who work in positions as listed in Schedule 1, in the work locations listed in Schedule 2.

Therefore, pursuant to subsections 33 (3) and (4) of the Public Service of Ontario Act, 2006, the following compensation is determined:

APPLICATION AND SCOPE

1. This Directive applies to any full-time and part-time, regular and fixed-term public servant appointed by the Public Service Commission under section 32 of the Public Service of Ontario Act, 2006 (“employee”) who meets both of the following conditions:

(a) The employee is appointed to a position as set out in Schedule 1 to this Directive…

(emphasis added)

13Schedule 1 of the Directive sets out the following:

Managers in the positions listed below who directly supervise front-line employees who are eligible to receive the government’s frontline staff temporary pandemic payment as announced on April 25, 2020:

Children, Youth Justice – Youth M0712D

Community Direct Operated Services (Social

and Social Facilities Manager Services28)

Services

Child and Residence M0712G

Parent Resource Manager (Social Services50)

Institute (CPRI)

14A “Q&A” document was prepared and circulated with respect to the Institutional COVID-19 Response Pay. It was identified as being “intended for all Youth Services Managers (with job classifications of M0712D) working in youth justice facilities during the COVID-19 outbreak”.

15Although different entitlements, in both cases the enhanced pay was effective from April 24, 2020 until August 13, 2020.

16The Complainant argues that the enhanced pay was provided to YSM's who, like him, are Schedule 5 employees. The enhanced pay was also provided to the staff whom he supervises, as well as to YSOs, and the staff supervised by the YSMs. The reason for providing the temporary enhanced pay to all of those individuals was the same, argued the Complainant. They work within the secure area of the facility with the young offenders. The Complainant argued that he regularly assisted his staff and similarly worked within the secure area. He argued that there was no basis for distinguishing him from these groups. The Complainant relied on the Employer’s Respectful Workplace Policy, the Correctional Services - Statement of Ethical Principles dated July 26, 2017 to argue for fair and equitable treatment. He also referenced Bill 47, Making Ontario Open for Business Act, 2018 which speaks to equal pay for equal work.

17The Employer argues that the Board has consistently held that in order for a complaint under s. 4 of O. Reg. 378/07 to succeed, it must point to an existing term or condition of employment, and that a failure to do so may result in dismissal. The Employer submits that the Complaint fails to identify an existing term or condition of employment that would entitle the Complainant to enhanced COVID pay. Neither form of enhanced COVID pay introduced by the Employer forms part of the Complainant’s terms and conditions of employment, argued the Employer.

18As the Complainant in the instant case is not a Youth Service Manager, argued the Employer, it was clear that he did not meet the eligibility requirement for the Institutional COVID-19 Response Pay and has therefore failed to make out a prima facie case for the remedy requested.

19In addition, the Employer argued, the Complainant does not meet the eligibility criteria for the pandemic pay established by Regulation 241/20 as he is a member of management and thereby excluded from that benefit. Further, argued the Employer, the Board has no jurisdiction to grant pandemic pay pursuant to Regulation 241/20 by virtue of section 3 of that Regulation, which preludes any tribunal from awarding pandemic pay.

20I was referred to and have considered the following decisions: James Allen et al v Ontario (Community Safety and Correctional Services), 2009 CanLII 43639 (ON PSGB) (O’Neil); MacDonald et al v. Ontario (MCSCS), 2014 CanLII 76836 (ON PSGB) (O’Neil); Bryan v. Ontario (SOLGEN), 2021 CanLII 37120 (ON PSGB) (Nairn); and Mark Woodward et al v Ontario (Community and Social Services), 2006 CanLII 91921 (ON PSGB) (O’Neil).

21The Employer’s Respectful Workplace Policy deals with workplace harassment and discrimination. There was no allegation of harassment and the Complainant expressly confirmed that he was not asserting that the Employer had discriminated against him. Discrimination at law requires differential treatment based on specific prohibited grounds, such as gender, race, or disability.

22To the extent that the Complainant filed reference to Bill 47, Making Ontario Open for Business Again, 2018, to support an argument for equal pay for equal work, that legislation amended the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”) to remove a provision from the ESA that required employers to pay equal wages to part-time, contract, and temporary workers relative to a full-time employee performing substantially the same work. To the extent that the ESA continues to require ‘equal pay for equal work’, that requirement applies only as between males and females performing substantially the same work. Part XII of the ESA, titled “Equal pay for equal work” provides in part, as follows:

42 (1) No employer shall pay an employee of one sex at a rate of pay less than the rate paid to an employee of the other sex when,

(a) they perform substantially the same kind of work in the same establishment;

(b) their performance requires substantially the same skill, effort and responsibility; and

(c) their work is performed under similar working conditions…

Exception

(2) Subsection (1) does not apply when the difference in the rate of pay is made on the basis of,

(d) any other factor other than sex…

(emphasis added)

23Of note is that the ESA does allow for different rates of pay as between employees performing substantially the same work when that differential treatment is not based on sex discrimination. Otherwise, those provisions have no applicability to the facts at hand.

24The Complainant also relies on Statement #4 of the Correctional Services – Statement of Ethical Principles. However, like the Respectful Workplace Policy, that statement addresses workplace harassment and discrimination and similarly has no applicability here.

25The temporary pandemic pay expressly excluded management employees. Regulation 241/20 cited above and the accompanying explanatory document, “Eligible workplaces and workers for pandemic pay” are clear and unambiguous in stating that pandemic pay does not apply to managers. Pandemic pay was made available to bargaining unit employees including those maintenance staff supervised by the Complainant. There is no dispute that the Complainant is considered to be part of the management team. As such, the Complainant was not provided with pandemic pay as a term or condition of his employment.

26Institutional COVID-19 Response Pay did not include the Complainant. With respect to those working in youth justice facilities, only Youth Services Managers were granted this temporary benefit. Whether it was ‘fair’ that the Complainant was the only employee working within the secure area of the facility not made eligible to receive some additional temporary compensation due to the pandemic is not the test before this Board.

27Compensation is a term or condition of employment. A complaint about compensation must meet the terms of sub-section 4(1) of Regulation 378/07:

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,

28In order for a valid complaint to be filed, the particular compensation complained about must form part of the existing terms and conditions of employment of the complainant. This complaint does not identify a breach of an existing term of employment. Rather, the Complainant is seeking to have a term of employment added to his contract of employment.

29As the Board sets out in its decision in James Allen, supra:

12… a complaint has to set out enough facts to establish that some term or condition of employment has been breached, and that some remedy is owed to make up for that breach. Establishing a viable case can be thought of as a chain with at least three links: first, grievors must establish an existing term or condition of employment; second, they must establish that the employer has breached that term or condition of the employment contract, and third, they must establish that there is a connection between the breach and the remedy requested, or at the very least, some remedy within the Board’s jurisdiction. The Board is not in a position to “fix” all complaints that come before it. Specifically, it is not given the authority to set terms and conditions of employment, or change or add to them…

(emphasis added)

30Similarly, in Hugh MacDonald, supra, the Board considered the issue of equal pay and the scope of this Board’s jurisdiction where a complainant could not establish that the complaint sought to enforce an existing term or condition of employment; a term that forms part of that employee’s individual contract of employment:

[16] It can be seen from the provincial legislation providing for equal pay for equal work, and equal pay for work of equal value, that the kind of unequal pay that is illegal is based on gender or sex discrimination... there is no suggestion of any gender-based disparity here, or of discrimination in wages on the basis of any other ground prohibited under the Ontario Human Rights Code. In general, it is not illegal to pay employees differently from others, unless the basis for the difference is prohibited by statute or the applicable contract.

17As noted in earlier decisions of this Board, in order for the Board to be able to award a remedy to a complainant, there must first be an existing term or condition of employment related to the facts complained of, something that is part of the complainant’s contract of employment. This is something more than a belief that something is unfair, no matter how deeply held...

18Where there is no term or condition of employment, or overriding legal principle preventing the action complained of, the Board has no basis to find a breach or award a remedy. That was the case in Garrett cited above, dealing with a fact situation not dissimilar from this one.

19In the Garrett case, the Board was faced with complaints filed by a group of managers who grieved salary compression between themselves and the OPSEU bargaining unit employees who reported to them. The Board dismissed the complaints in respect of compression with bargaining unit compensation on the basis that it had no authority to set terms and conditions of employment or to give binding opinions as to whether the contractual terms complained of are fair in some absolute sense or in comparison to bargaining unit employees…For the Board to apply terms and conditions to managers that have been bargained by, or awarded to, a bargaining unit or contractual employees would amount to setting terms and conditions of employment for the managers, which is not the function of the Board. The PSGB can and does enforce existing terms and conditions of managers’ contracts, but has no authority to set wages or compensation.

20…“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."

21… the complainants have failed to identify a term or condition of their employment that has not been applied correctly, or a promised level of salary that has not been provided. Nor have they shown facts that make out a viable case of a breach of statute or an illegal contractual provision. In the circumstances, even accepting all the facts asserted by the complainants to be true and provable, there is no viable case stated in the materials, so that the complaint is dismissed for want of a prima facie case.

31Finally, as this Vice-Chair held in Bryan, supra, in dismissing a similar claim brought by Health Care Managers for temporary enhanced pay due to the pandemic:

28… As the Employer correctly argued, Regulation 378/07, made under the Public Service of Ontario Act, 2006 as amended, establishes the scope of this Board’s jurisdiction. Section 4 of that regulation allows excluded employees to file a complaint concerning an alleged breach of an existing term or condition of employment. The Board’s authority has consistently been described as one of enforcing existing terms and conditions of employment, not creating new terms of employment…

32This Board cannot set terms and conditions of employment and provide the Complainant with the enhanced pay that he feels should have been provided to those in his position. It is unfortunate that the Employer chose not to meet with the Complainant and provide an explanation as to his exclusion from that benefit, particularly as his circumstances appear to be even less distinguishable than those associated with the Health Care Managers. It is the case that employees often do not have easy access to directives or regulations that might assist them in deciphering Employer decisions and these kinds of actions have an impact on employee relations.

33Having regard to all of the above, I find that there is no term or condition of employment entitling Mr. Shkuratoff to temporary pandemic pay, either under Regulation 241/20 which does not extend to management personnel, or, in the same manner as that introduced for Youth Services Managers in youth justice facilities. In the result, his complaint fails to make out a prima facie case for the remedy requested.

34This complaint is hereby dismissed.