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HomeMy WebLinkAboutP-2013-3245.Bryant.15-01-30 DecisionPublic Service Grievance Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission des griefs de la fonction publique Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 PSGB#P-2013-3245 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Geoffrey Bryant Complainant - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Kathleen G. O’Neil Chair FOR THE COMPLAINANT Geoffrey Bryant FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel WRITTEN SUBMISSIONS COMPLETED November 24, 2014 - 2 - Decision [1] This decision deals with the complaint of Geoffrey Bryant, in which he claims that the employer’s pay practices in respect of managerial employees is unfair in its differential treatment of managers at the top of their pay grade, as compared to those not yet at the maximum. [2] In September, 2010, Mr. Bryant was promoted, having been assigned to a higher rated acting position, and received pay at the different rates applicable to the positions held before and after the promotion, proportional to the amount of time he worked in each position. The fiscal year 2010/2011, in which this promotion occurred was also the most recent one in which the employer paid performance increases allowing managers to move through their pay range, and lump sums for amounts exceeding the maximum of the pay range. [3] For the fiscal year 2010/11, the application of his positive performance rating brought Mr. Bryant to the maximum of the pay range of his pre-promotion position, but not to the maximum of the position to which he was promoted. He received a lump sum as part of his pay for performance for the fiscal year 2010/2011, as his performance award was large enough to take him over the maximum for his pre-promotion pay range. A proportionate amount of this was applied to his base salary in the higher rated position in which he was serving as of April 1, 2011, bringing him closer to the maximum, but still significantly below it. In the intervening years, he has received lump sums in the same amount as the pro- rated amount he received in 2011, which have not been included in his base salary. He claims that the lump sum amounts should have been added to his salary to assist him in advancing towards the maximum of the classification into which he was promoted in 2010, and be considered pensionable earnings. [4] Mr. Bryant’s complaint states that his and other managers’ pay treatment is without precedent or basis in law, was unexplained, and has no relevance to performance, merit or entitlement. He therefore finds it not respectful or transparent, and submits that it does not foster good relations or respect. He sees the fact that those at the top rate in 2011 are being given an annual bonus in the same amount as received in 2011, irrespective of their current performance, while those still below the maximum of the pay range received either nothing or a partial sum, as financial discrimination. He states that the employer is being discriminatory by allowing staff in the same classification to work together doing equal - 3 - work while those at the lower level of the pay range are not allowed to progress towards the rate of those at the maximum who are receiving the annual bonus. He is of the view that the employer’s pay decisions are lacking in in the principles of fairness, equity, transparency and respect which the government promotes. [5] Mr. Bryant also believes the employer’s pay treatment violates the wage provisions of the Employment Standards Act and s. 33 of The Public Service of Ontario Act, as well as violating the spirit of the Pay Equity Act. Additionally, Mr. Bryant claims that the lump sum payments constitute an unfair labour practice. [6] Further, Mr. Bryant maintains that managerial staff should not be prevented from progressing through the pay grid, as the employer has allowed unionized employees to continue to move through their pay grids. He is of the view that if Pay for Performance has been cancelled, the employer should go back to the previous Merit Increase Directive. [7] It is the employer's position that the policy was applied correctly, and that the complaint does not make out a viable case for the remedies sought. The Background Context [8] Although Mr. Bryant’s factual situation is somewhat unique, because of his mid-year move in positions, the policy change which lead to his complaint is the same one that has lead many others to file complaints with this Board. What these complaints have in common is that they contest aspects of managerial compensation flowing from the employer’s decision to suspend performance pay for the fiscal years 2011/12 and following. This was done by setting pay for performance awards at 0%, rather than the previously enjoyed range of pay increases linked to the quality of performance. In explaining the background of this widespread issue, the Board wrote the following in its recent decision Smith et. al and the Crown in Right of Ontario (Ministry of Community Safety and Correctional Services,, PSGB # P-2012-4155, 2014 CanLII 48098 (ON PSGB), dated July 9, 2014 : As employees excluded from collective bargaining, they are covered by the Management Compensation Plan (MCP), which is set by a combination of directives issued by Management Board of Cabinet and government-wide compensation policies consistent with them, rather than by collective negotiations as is the case for members of bargaining units. For several years prior to 2012, employees such as the complainants have been able to increase their compensation by only one route: a favourable pay for performance rating from their superiors. Those ratings were translated, according to annually set policy, into a range of - 4 - percentage increases. A zero percentage rating was reserved for those with problematic performance ratings, and a person covered by the MCP who met or exceeded performance expectations received an increase in each of the years leading up to this complaint. That changed in 2011/2012 because of fiscal restraint, when the range of performance awards was set at 0%, basically freezing wages, regardless of whether performance was worrisome or wonderful. In the policy dated September 28, 2012 which describes this, one reads that performance pay for the 2011-12 year is set at zero percent for non-bargaining unit Ontario Public Service employees, and that “the earnings of non-bargaining unit employees, who were eligible for performance pay, are to remain at 2011 levels.” [9] The intent was to freeze basic earnings, but for some employees just freezing salary would have resulted in a decline in their basic earnings. To avoid this, and to maintain basic managerial earnings at 2011 levels, the compensation policy provided for lump sum payments in 2012 and the intervening years, to ensure that the managers who had received lump sum payments in fiscal year 2010/2011 did not experience a decline in their basic annual earnings. The mechanics of the lump sum payments was explained as follows in the Smith decision: In order to understand this preliminary dispute, and before discussing the relevant legal framework below, it is necessary to go back to how the pay for performance plan was structured just prior to the restraint measures of fiscal year 2011/2012. Jobs covered by the Management Compensation Plan are compensated according to a wage grid, with a minimum and a maximum of yearly wages, through which employees could move by means of their performance-related awards, rather than by length of service, or across-the-board increases. Once any such movement brought the employee to the maximum of the pay grid, any remaining entitlement to a pay for performance award for those in the “outstanding” and “fully effective” categories was paid out in a lump sum payment, rather than a corresponding additional increase in base salary. For example, if members of the Management Compensation Plan close to the maximum of the pay grid, received a performance award of 3%, whatever portion of that increase was necessary to bring them to the maximum would be “used up” in a salary increase, and the remainder would be paid out in a lump sum. So, if it took 1% of the 3% award to get to the maximum of the pay grid, that employee’s annual wages would be increased by 1%, and then he or she would receive a 2% lump sum award that was not rolled into the annual salary rate. For purposes of this award, the sum of the salary determined by the grid maximum and the amount of the lump sum, if any, will be referred to as an employee’s “basic annual earnings”. That basic scheme remains in place in the policies relating to pay for performance, but with the percentage set at zero for the fiscal year 2011/2012, no one moved on the grid for that fiscal year. - 5 - [10] The function of the lump sum payments paid for the fiscal year 2011/12 is explained in the relevant policy as follows: For employees who were at the maximum of their salary range on April 1, 2011, the application of the 0% performance pay may result in a reduction of their earnings in 2012 from the 2011 level. A reduction in earnings occurs when an employee’s earnings (comprised of annualized base salary and variable re-earnable incentive payment) for the fiscal year starting April 1, 2012 are less than their annualized salary for the fiscal year starting April 1, 2011. In these instances, the employees may be eligible to receive a payment to maintain their earnings at their previous year’s level. … The amount of the payment is an amount up to the variable re-earnable incentive payment in respect of the 2010-2011 performance cycle. The payment does not alter the employee‘s annual base salary or salary- based benefits and is not included in pensionable earnings calculations. Employees who received a base salary adjustment, but not a variable re- earnable incentive payment in respect of the 2010-11 performance cycle are not eligible for a payment. [11] A Variable Re-earnable Incentive Payment is defined in the same policy as follows: Performance related payment, paid as a lump sum, to employees at the maximum of their salary range. The payment of a variable re-earnable incentive does not alter the employee’s annual base salary or salary based benefits and is not included in pensionable earnings calculations. [12] The Smith complaints were dismissed as beyond the Board’s jurisdiction as it related to the denial of pay for performance and in respect of their claims for the setting of new terms and conditions of employment. Given the similarity of the subject of the lump sum issue in Mr. Bryant’s complaint to that dealt with in the Smith decision, the Board wrote to the complainant, pursuant to the Board’s Rule 11, indicating its intention to dismiss the complaint as one related to denial of pay for performance, providing him with a copy of the Smith decision, and giving an opportunity to make submissions before it did so. Rule 11 reads as follows: Where the Board considers that a complaint does not make out a case for the orders or remedies requested, even if all the facts stated in the complaint are assumed to be true, the Board may dismiss the complaint without a hearing or consultation. In its decision the Board will set out its reasons. - 6 - The Board has assumed the facts in Mr. Bryant’s complaints to be true, although in this case there were no disputed facts. It is the interpretation of the terms of Mr. Bryant’s contract of employment and the applicable policy and law which is at the basis of this dispute. Considerations and Conclusions [13] The complainant took the opportunity to make submissions, in which he summarized his position as follows: The MCP Pay for Performance Operating Policy & Procedures was that if you were at the maximum of salary rate then you would receive a lump sum, if you were not the amount would be applied to basic wage, in addition if part of the award brought one to maximum salary then the remainder would be a lump sum. In my case half way through the year I moved to a higher position AIM 19 to AIM 21. As I was on top rate of the AIM 19 I received a lump sum, as I was not at the top rate of the AIM 21 I received a percentage increase in salary. Note the latter part was added to salary. He further explains that his current salary is well below the maximum salary for his AIM 21 position and that even if the lump sum he received in each of the last three years were added to his base salary, he would still be below the maximum in his newer position. He notes that “in the Operating Policy (not currently being followed) if there was room in the salary then it would be applied”. This is apparently a reference to the employer’s operating policy on Pay for Performance. Although the policy is still intact, the fact that performance awards have been set at 0% for the years since 2011 means that pay for performance has effectively been suspended due to fiscal restraint. Mr. Bryant is of the view that adding the amount of the lump sum to salary would not represent an increase in total salary. He submits that, apart from overtime or settlement agreements, there is no precedent or justification for not adding it to salary. He complains that he was not shown the policy dealing with lump sum payments, despite having asked for it. [14] Mr. Bryant also distinguishes his case from the Smith decision as including a point that was not dealt with in that decision. This relates to the discussion at paragraph 47 of that decision about concerns that some people who were not at the maximum of their pay range received lump sum payments anyway, which was not necessary to deal with in that decision. Mr. Bryant is someone who is currently not at the maximum of his pay range, but is receiving an annual lump sum, and therefore may be one of the managers to whom - 7 - the Smith complaint referred in this respect. As noted above, he is receiving a lump sum in the same amount as he received in 2011 in reference to his lower-rated home position, in which he was at the maximum. [15] Employer counsel provided information on how the policy about the lump sums had been applied to Mr. Bryant. This showed that, during fiscal year 2010/11 in which the Pay for Performance Operating Policy was still operative, Mr. Bryant received performance pay based on his performance ratings, pro-rated for the time spent in each position. For his home position the amount was added to salary up to the maximum of the range, and then the rest was paid out as a lump sum, referred to as a “variable re-earnable incentive payment” in the above-noted policy dealing with the payment of lump sums in the years here in dispute. Although Mr. Bryant did not take issue with that information, he does not consider it relevant to the dispute, because of his view that the lump sum should have been applied to his salary in the new higher-rated position. [16] Further, employer counsel notes Mr. Bryant’s submission that, as he is not at the top of the pay grid in the higher rated position, there is space in the pay range to add the lump sum without altering the pay structure. To this counsel responds by submitting that, as found by the Board in the decisions in Smith and Kaine v Ontario (Children and Youth Services), 2014 CanLII 48097 (ON PSGB), PSGB # P-2013-1036 (O’Neil), the compensation policies in place for non-bargaining employees provide that the only way to move within their pay range is through a pay for performance award. Since the employer’s compensation decisions for the fiscal years 2011-2012 through 2013-2014 have been to set pay for performance for all performance levels at 0%, there is no term or condition of employment providing for Mr. Bryant to move in his pay range as he claims he should. Counsel notes that the Board dismissed the complaints in Smith and Kaine, on the basis that it lacked the jurisdiction to award any salary increase because no term or condition existed providing for one. It is the employer’s position that this applies to Mr. Bryant as well, and thus the Board is invited to dismiss the complaint on the basis that the Board has no ability to provide the remedy being requested. [17] As part of the process of written submissions, employer counsel provided Mr. Bryant with the policy regarding the lump sums paid in 2012 and after, entitled Compensation Policy and Eligibility Procedures, the same one referenced above and dealt with in the Smith decision. In transmitting the policy, counsel wrote that he was disclosing it with the - 8 - understanding “that the deemed undertaking rule applies and that this policy will not be circulated, reproduced or used for any other purpose other than this file.” Mr. Bryant submits that by this very statement employer counsel is implying that this policy is not for anyone to see and not for circulation. Further, he notes that if one tries to look it up in the usual places for policy documents, no documents appear for the title Compensation Policy and Eligibility Procedures, from which Mr. Bryant has concluded that it is a secret policy, and that employees are not allowed to see the compensation policy that affects them. On that basis, Mr. Bryant submits that the policy document should be ignored and his appeal should be granted. Further, he notes that the Policy disclosed is for the 2011-12 year only, while his complaint extends to 2014. [18] Mr. Bryant notes as well that the policy received does not cover his particular circumstances as it mentions lump sum payments for those at the top of the grid which are not to alter the employee’s base salary or salary-based benefits and is not included in pensionable earnings calculation. Mr. Bryant takes this to mean that the maximum pay should not be altered, and that since he is not at the top of his pay range, the lump sum could be added to his pay, using the space between his current position within the range and the maximum, without altering the pay structure. Mr. Bryant submits that this is a reasonable request, which is not prevented by any policy or precedent that he has seen, and therefore his appeal should not be denied. [19] Employer counsel responded to the allegation of secrecy, saying that he was simply communicating standard litigation rules, and that, in any event, the policy has already been set out almost in its entirety in a public decision, Smith, so that counsel finds the allegation that the employer is trying to cloak the policy in secrecy to be misguided. [20] I note that the deemed undertaking rule is a standard part of civil litigation, as counsel says, but mainly aimed at documents that have not yet been entered into evidence, in order to encourage complete and candid disclosure of documents relevant to litigation. Here, as counsel notes, the main text of the policy in question has already been set out in a public document. This fact, in the Board’s view, makes the deemed undertaking less applicable. Nonetheless, the main issue here for Mr. Bryant and other complainants appears to be the concern that this particular policy was not made available in the usual manner that compensation policies are made accessible to managers and other employees in the public service. Given that the policy is now public, and in light of the findings below, I do not consider it necessary to deal further with the applicability of the - 9 - deemed undertaking rule, or the handling of the policy on lump sums. However, it is clear that the perception among many of the complainants to this Board is that there was something unfortunately unusual in the way this particular compensation policy was handled, and this likely contributed to the volume of complaints filed in respect of the lump sums. *** [21] The Board has carefully reviewed Mr. Bryant’s complaint, in light of the submissions referred to above, and the applicable policy, which is set out in relevant part in the Smith decision. I appreciate that Mr. Bryant’s case is factually different from the group complaints in Smith and Kaine, cited above, as well as the more recent Sanders et.al and the Crown in Right of Ontario (Ministry of the Attorney General) #P-2014-1876, dated January 22, 2014. Nonetheless, the same principles are applicable and lead to a similar result. [22] The basic problem for Mr. Bryant’s complaint is that there is no evidence of any current existing term or condition of employment that would give him what he is asking. In order to grant the request, the Board would have to make a new term or condition of employment, borrowing part of the Pay for Performance policy, despite the setting of the percentages at zero, and combining it with a small part of the current policy on lump sums, to transform the lump sum into a method to move Mr. Bryant along in the grid in his new position. This is something the Board does not have the power to do. The Board only has the power to enforce terms and conditions of employment, not to create them. It could be done, of course, as Mr. Bryant says, but it is not currently a part of the compensation provisions of his contract of employment. It is not what the policy offered, and there is no evidence that it is something applied in practice to anyone. It is only because of his change of classification in 2010 from a position in which he was at the maximum that Mr. Bryant is receiving a lump sum even though he is not at the maximum of his current salary range. [23] It is appropriate to note that even if the Board were to ignore the policy on lump sums because it was not disclosed to managers at the time of its implementation, as Mr. Bryant invited the Board to do, there would be no basis on which the Board could order the application of his lump sum to allow him to move through the salary range in his new position. This is because there is no current contractual provision which the Board could - 10 - enforce providing for such movement. If one ignored the lump sum payment policy, there would also arguably be no basis for the lump sum to be paid at all, but neither party argued for such a result. [24] To the extent that what Mr. Bryant is asking is to be able to move within his pay range, his complaint is very similar to that of the groups of complainants in the cases such as Smith, Kaine and Sanders, cited above. The Board is of the view, for the reasons sent out more extensively in the Smith decision, that a complaint about failure to move within the grid, is, in substance, a complaint about the denial of pay for performance in the fiscal years from 2011/12 and onwards, and therefore beyond the Board’s jurisdiction, as well as not being part of the managers’ terms and conditions of employment. Complaints about “compensation provided or denied to a public servant as a result of his or her performance” are specifically removed from the Board’s jurisdiction by s. 4(2) of Regulation 378/07 which provides that such complaints cannot be the subject of a complaint to this Board. The Board is a creature of statute, with only the powers permitted by statute. Thus, the Board lacks the power to remedy failure to pay the requested performance-based compensation. The same is true of the request to return to the previous Merit Increase Directive. [25] As to the issues about transparency and general fairness of the disputed compensation terms, the Board wrote in response to similar themes in the Smith complaint: Although it may be that specific communication earlier on might have given the complainants better understanding of the lump sum payments, and allayed concerns expressed in this complaint, there is nothing in the material before me that establishes a viable complaint of a violation of a specific term or condition of employment as to transparency, or specific amount of notice. … More generally, as in the Garratt decision, …,[Garratt et al and the Crown in Right of Ontario (Ministry of Health and Long-term Care) P-2003-1670, (O’Neil), 2005 CanLII 53194 (ON PSGB)], the allegations concerning transparency and fair and equitable treatment concerning wages are inseparable from the elements of the complaint which essentially ask the Board to set different terms and conditions of employment. I am not persuaded that they make out a viable allegation that is within the Board’s remedial authority. To similar effect is the Board’s July 11, 2014 decision in Kaine, cited above. - 11 - [26] As noted, the complainant also relies on a claim to equal pay for equal work and unfair labour or pay practices. Similar arguments were also made by the complainants and dealt with by the Board in the Smith et.al decision. As to the equal pay argument, the Board wrote as follows: There is also the claim for equal pay for equal work, including the statement that the arbitrary bonus payments violate the spirit of the Pay Equity Act. This aspect of the complaint has the ring of an allegation of an illegal compensation provision. And if there were anything in the alleged facts that established a viable basis for such a claim, the Board would have the jurisdiction to let the claim proceed. However, there is nothing in the material before me that constitutes a viable case of a violation of any policy or legislative provision as to equal pay for equal work. 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 that based on gender or sex discrimination. See, in particular, s. 42 (1) of The Employment Standards Act and section 8 of the Pay Equity Act where it is made clear that differences in compensation which are the result of compensation policies which do not discriminate on the basis of sex or gender do not constitute failures to pay equal pay in the sense prescribed by Ontario law. More generally, 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. The only discrimination alleged is between those at the maximum of the pay grid in 2011, and those who were not. There is nothing in the material before me that persuades me that this is a viable claim of a breach of the complainants’ terms and conditions of employment, as there is no statute, policy or other term and condition of employment in evidence which arguably prohibits that kind of difference. The above remarks are applicable to this complaint, with the exception that Mr. Bryant was at the maximum of his salary range in 2011. Nonetheless, as discussed above, the fact that the lump sum payments he has received since 2011 have not been applied so as to move him in his pay range has not been shown to be a breach of his terms and conditions of employment. Nor has it been shown to be an illegal differential payment on other grounds. [27] The Smith and Kaine decisions also dealt with the argument concerning the Employment Standards Act made by Mr. Bryant. As noted in that decision, there is a decision entitled Non-union Staff of the City of Toronto and the City of Toronto ; Claim #’s 70063991-1, etc., a decision of Employment Standards Officer Rick Richards, concerning pay for performance for the City of Toronto non-bargaining unit employees which deals with analogous issues. In that decision, it was found that there is an expectation that - 12 - employees receive notice of a substantial change in terms and conditions of their employment, especially one concerning merit pay and compensation. Further, it held that the merit pay of the City staff amounted to “earned wages” and was therefore payable. The following excerpt from the Kaine decision dealing with this point is also applicable to this complaint: The complainant also states that there is an expectation that employees receive notice of a substantial change in terms and conditions of their employment, especially one concerning merit pay and compensation. The complainant states that no such notice has been received to date announcing the continuing entitlement to bonuses solely for current and former staff already at the max of their salary grid. The reference to “earned wages” is a reference to the requirement in Part V of The Employment Standards Act that the employer pay earned wages, which was the basis of the City of Toronto decision. The reference to bonuses solely for those at the maximum of the grid was also the focus of the Smith complaint. These themes were addressed in the Smith decision, cited above, as follows: I have also carefully considered the viability of the claim that the complainants had a legitimate expectation that they would be paid pay for performance or that they would receive reasonable notice if they were not going to receive it. Reference was made in this respect to the City of Toronto decision, cited above. Quite apart from the undisputed fact that Part V of The Employment Standards Act, relied on as the basis of that decision, does not bind the Crown, I find the facts of that case sufficiently different that the decision lends little support to the complainants’ case. The findings of fact included that the employer, by way of a vote at City Council, had authorized the payments in question, and then tried to withdraw them after the employees’ right to them had vested. In this case, there is no evidence that the payments sought had been authorized for those who were not at the maximum of the grid in 2011. As well, although there is little doubt that the pay for performance policy is a term and condition of employment of the complainants, just as it was for the non-union City employees, there is nothing in the City of Toronto decision that indicates that part of the City’s policy was an express provision that the levels of pay for performance could be set at 0% in any year. No doubt, the fact that performance awards had been made in all recent years distracted from employees’ concentration on the part of the policy that allowed the employer to refrain from approving performance awards for any given performance cycle. Most basically though, there is no exemption in The Employment Standards Act from the consideration of complaints related to pay for performance as there is in this Board’s governing regulation. - 13 - In other words, it is true that Pay for Performance is a term and condition of managers’ employment, but it is one which the regulation removes from the complaints which the Board has the power to consider or remedy. In any event, the Pay for Performance policies include explicit provisions that awards may not be granted in any given year, and that the amount of any award will be set after the performance cycle. Therefore, although the pay for performance policy is no doubt intended to help motivate managers to perform well, in the form currently in evidence, it does not guarantee any payment in any given performance cycle, and explicitly provides that the level of any payment will be set retroactively. [28] Mr. Bryant also made reference to s. 33 of the Public Service of Ontario Act. Although this section of the legislation gives Management Board of Cabinet power to determine salary ranges and benefits for public servants, it does not have any specific provision which could form the basis for a finding that the current pay policies are inconsistent with it, or improper in some way. [29] There is also the argument that bargaining unit employees are still permitted to progress in their wage grids while managers are not. The Board has consistently dismissed claims based on comparisons with what was negotiated with bargaining agents for the basic reason that the terms and conditions of managers are different. [30] For instance, in the Garratt case, cited above, the Board dealt with complaints filed by a group of managers who grieved salary compression between themselves and the OPSEU (Ontario Public Service Employees Union) 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. The same applies to Mr. Bryant’s complaint in issue here as to the comparison with bargaining unit employees. The bargaining unit employees quite simply have different terms and conditions of employment related to pay than do the managers. As the Board noted in the Garratt decision, grievances claiming “what OPSEU (or any other bargaining agent) got” are not entertained by the Board because they amount to claims for the application of terms and conditions of employment which have been set for a different group. For the Board to apply terms and conditions to managers that have been bargained by, or awarded to, bargaining unit 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 - 14 - does enforce existing terms and conditions of managers’ contracts, but has no authority to set wages or compensation. [31] Mr. Bryant also asserted that the employer’s actions amounted to an unfair labour practice, and was without precedent. The Board does not find a sufficient basis in the facts underlying the complaint to find that the compensation changes are improper in those ways either. In terms of the assertion that there is an unfair labour practice, there is no statutory or other provision mentioned that would prohibit the contested lump sum payments, or the proportional way in which they were applied to Mr. Bryant. It appears that the complainant is using the term to describe the allegation of general unfairness dealt with above, and in the case law cited above. Understood as a payment to maintain all managers’ pay at 2011 levels, the lump sum payments do not make out a prima facie case for unfairness, or any remedy. The fact that the current approach to managerial compensation may be unprecedented does not make it a breach of Mr. Bryant’s terms and conditions of employment, unless it was in breach of a specific term of his employment, a statute or some more general principle of law, which the Board does not find it to be. [32] For all of the above reasons, the Board finds that the complaints must be dismissed as beyond its jurisdiction as it relates to the denial of pay for performance and in respect of the claims that would require the setting of new terms and conditions of employment, and as failing to make out a viable case of a breach of any existing term or condition of employment. Dated at Toronto, Ontario this 30th day of January 2015. Kathleen G. O’Neil, Chair