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HomeMy WebLinkAboutP-2004-3699.Anthony Hill et al.06-08-25 Decision Public Service Commission des Nj Grievance Board griefs de la fonction publique Bureau 600 ~ Suite 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1 Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 P-2004-3699 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Anthony Hill et al Grievor - and - The Crown In Right of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE Kathleen G O'NeIl Vice-Chair FOR THE GRIEVOR Anthony Hill, WillIam Horobetz, Lons PuntIllo Lawton Callender Mikey Badal, Bruce FIndlay (Gnevors) FOR THE EMPLOYER Sean Kearney Semor Counsel Mimstry of Government ServIces HEARING July 10 2006 2 DeCISIon ThIS deCISIOn deals wIth the gnevance filed by a group of SIX OperatIOnal Managers, claimIng that theIr wages have not been maIntaIned at 3% above the salary maXImum of those In the CorrectIOnal Officer 2 (C02) classIficatIOn who report to them In a prelImInary decIsIOn dated December 21 2005 the Board allowed the matter to proceed to a heanng, over the employer's obJectIOn. The Issue to be determIned, as set out In that decIsIOn, IS whether there IS a term or condItIOn of the gnevors' employment entItlIng them to an ongOIng 3% dIfferentIal above the CorrectIOnal Officer rate, or that of the bargaInIng umt employees who report dIrectly to them. The Facts All SIX gnevors became OperatIOnal Managers In June 2003 and were classIfied as OM-16 They each had been at the maXImum of the salary gnd for theIr pre-promotIOn claSSIficatIOn, C02, and each receIved a 3% promotIOnal Increase ThIS had the effect that, once promoted, they earned exactly 3% more than the maXImum of the salary gnd of theIr dIrect reports who were In the C02 classIficatIOn, whIch they had Just left. However wIth the ImplementatIOn of an Increase to the CorrectIOnal Officer wage gnd on January 1 2004 the dIfferentIal was reduced to 5% The gnevors claim as remedy a 25% Increase to theIr wages, retroactIve to January 1 2004 as well as recalculatIOn of overtIme and other compensatIOn related to theIr base rate Further they request amendment of the Pay on AssIgnment OperatIng PolIcy so that the problem does not recur In the future The gnevors refer to two documents, the first a letter dated June 18 2004 from AssIstant Deputy Mimster Gary Commeford, and the second a memo dated July 13 2004 from Human Resources Branch DIrector JosephIne A Fuller as employer statements of theIr contInuIng entItlement to the 3% dIfferential they claim The Commeford letter IS a three-page letter covenng a number of tOpICS related to managenal compensatIOn. It starts off adVISIng the OperatIOnal Managers of a recent consultant's reVIew of theIr compensatIOn package, whIch had resulted In a report IndIcatIng that the current pay range for the OperatIOnal Manager was comparable to posItIOns of sImIlar scope and responsIbIlIty In 3 other JunsdIctIOns AccordIngly he IndIcated that no salary reVISIOn was recommended, no doubt to the dISappOIntment of the OperatIOnal Managers Nevertheless, the letter contInues, acknowledgIng that there remaIn "Internal pay Issues that need to be explored." Mr Commeford IndIcates that, despIte the fact that there has been no breach of compensatIOn polIcy and thus no reqUIrement to alter the current compensatIOn of OperatIOnal Managers, a number of Issues were to be addressed. The first three, whIch the gnevors acknowledge do not apply to them, can be summanzed as follows - CertaIn OperatIOnal Managers had theIr performance ratIng revIsed upwards to "met all" makIng them elIgIble for a 2% Increase to the salary maXImum and 5% pay for performance - After an Incorrect commumcatIOn whIch created false expectatIOns among OperatIOnal Managers who were not at the salary maXImum on March 31 2002, but had reached the maXImum after theIr pay for performance award on Apnl 1 2002, affected OperatIOnal Managers were gIven the benefit of the 5% Increase to the salary maXImum - OperatIOnal Managers who were confirmed In the mass recruItment dnve dunng 2001 were to receIve amounts eqUIvalent to 3% above the 2003 CO salary retroactIve to January 1 2002, If they had earned less than the CorrectIOnal Officers that they supervIsed after January 1 2002 The fourth Item, whIch the gnevors claim should apply to them, IS as follows All InstItutIOnal managers confirmed as of July 31 2003 wIll be compensated 3% above the current CorrectIOnal Officer rate TurnIng to the detaIled memo from Human Resources DIrector Fuller It IS addressed to the RegIOnal DIrectors and Supenntendents, Adult InstItutIOnal ServIces, WIth the request that the InfOrmatIOn be shared wIth theIr managers In addressIng concerns that had been raised, Ms Fuller chromcles recent Improvements to managenal pay and explaIns some basIc pnncIples In regards to managenal compensatIOn. A number of these are Important to thIS case FIrstly the memo states that non-bargaInIng umt employee salanes are determIned by Management Board of CabInet, and are not In the control of the Mimstry Secondly It clearly defines the employer's defimtIOns of the terms "compressIOn" and "overlap" whIch Inform the managenal compensatIOn package In place For the employer compreSSIOn occurs when the 4 salary maximum of a dIrect report IS less than 5% below the maximum of the classIficatIOn of the manager By contrast, the term overlap refers to the sItuatIOn when the minimum of the manager's classIficatIOn IS lower than the maximum of the person beIng managed. The memo states that overlap IS qUIte common In the Ontano PublIc ServIce and notes that managers have the opportumty to progress through a hIgher salary range to the maXImum and above through pay for performance awards The memo goes on to state the folloWIng, the other maIn pIllar of the gnevors' claim Deputy Mimster Rabeau has IndIcated that all InstItutIOnal managers should be compensated 3% above the salary maXImum of theIr dIrect reports At the tIme of promotIOn or hIre Into the OperatIOnal Manager posItIOn each IndIVIdual wIll be revIewed to determIne whether or not hIs/her salary IS 3% above the current CO2 rate ThIS may result In a promotIOnal Increase of greater than 3% The gnevors also rely on remarks made by AssIstant Deputy Mimster Commeford In October 2004 at two conferences In Toronto attended by OperatIOnal Managers Mr Hill said that at the first of these, Mr Commeford was asked dIrectly by a member of the audIence If managers were to remaIn 3% above those reportIng to them and hIS response was that they were supposed to be maIntaIned 3% above In the wntten matenal ongInally filed wIth the Board, the statement IS made that Mr Commeford confirmed that, "InstItutIOnal Managers are to be makIng 3% mImmum above the CorrectIOnal Officers that they supervIse" When Mr Commeford was Informed that there were SIX people at the Toronto JaIl who had not had theIr wages corrected, he dIrected one of hIS subordInates to look Into It. At the second meetIng, Mr Hill said It was "about the same" and that Mr Commeford referred to the documents Mr Hill also relIes on a conversatIOn he had dunng a traInIng course, where the subJ ect of the dIfferentIal came up agaIn, and Mr Commeford told hIm to "get your supenntendent to contact my office, and we'll get thIS worked out." Mr Hill was convInced that thIS was to be the 3% dIfferentIal he IS seekIng. His supenntendent apparently dId pursue the matter wIthout success Mr Hill testIfied that he understood the letter from Mr Commeford to be desIgned to correct problems wIth compensatIOn, and concluded that SInce he and the other gnevors had been confirmed In June 2003 (the letter refers to managers confirmed as of July 31 2003), they were Included In the solutIOns Nonetheless, almost two years after the memo they were havIng the same problem. Refemng to the provIsIOns made for managers promoted dunng the mass hmng 5 of 2001 Mr Hill IndIcated that he consIdered that the employer had "fixed It for that group" essentIally settIng a precedent of a dIfferentIal of 3% In reference to Ms Fuller's quotIng Deputy Mimster Rabeau In her memo Mr Hill noted that Mr Rabeau has powers and can approve vanous Increases as set out In the Pay on AssIgnment OperatIng PolIcy That polIcy also provIdes that there are a number of people outsIde of the CIvIl ServIce CommISSIOn who have explIcIt authonty to approve pay Increases, In the gnevor's VIew Mr Hill emphasIzed that he IS expected to follow dIrectIves from hIS supenors, that wntten dIrectIves from supenors In the Mimstry are "the BIble" AccordIngly when a letter such as Mr Commeford's sets out In wntIng that he IS entItled to somethIng IfhIS CIrcumstances fall wIthIn certaIn parameters, he expects It to be enforced. As to the employer's suggestIOn that It IS sIgmficant that the memos do not provIde an end date to the claimed Increase Mr Hill testIfied that he does not have the luxury of not folloWIng a memo's dIrectIves Just because It does not contaIn an end date On cross eXamInatIOn, Mr Hill agreed wIth employer counsel's suggestIOn that the Pay on AssIgnment OperatIng PolIcy does not speak to Increases after promotIOn, that pay for performance IS desIgned to look after that. He also agreed he was elIgIble for pay for performance as of Apnl 2004 Ms RIsa Caplan, Corporate CompensatIOn SpecIalIst for non-bargaInIng umt employees, testIfied that the Mimstry of Government ServIces, the government's central agency where she works, IS responsIble for the type of Increase beIng sought by the gnevors Mimstnes have to make a busIness case to her branch for such an Increase and If the Deputy Mimster approves, then the matter goes to the CIvIl ServIce CommIssIOn, whIch Includes a number of other Deputy Mimsters The procedure after that, If all IS approved, IS that the matter IS dealt wIth by Management Board of CabInet, followed by CabInet who would Issue an Order-In-CouncIl for the salary Increase At any stage the matter can be referred back for more InformatIOn or JustIficatIOn. Ms Caplan stressed that mImstnes are not responsIble for thIS type of Increase, somethIng also alluded to In Ms Fuller's memo Ms Caplan emphasIzed that there IS no ongoIng entItlement to any specIfic dIfferentIal between managers and members of the bargaInIng umt as part of the managenal compensatIOn package, 6 although on two occaSIOns there have been temporary compreSSIOn pay polIcIes For Instance, she said that after the 2002 OPSEU negotIatIOns, a compressIOn pay polIcy was temporanly reInstated to deal wIth specIfic umque and scattered examples of compreSSIOn across the Ontano PublIc ServIce It was Implemented after the reVISIOns for both the Management CompensatIOn Plan range reVISIOns and those of the bargaInIng umt had been Implemented, so that a more fair and accurate pIcture could be obtaIned. Ms Caplan clanfied the defimtIOn of compreSSIOn, as used by the central agency In a fashIOn qUIte sImIlar to that set out In Ms Fuller's memo InvolvIng a companson of the maxima of the two classIficatIOns Ms Caplan's calculatIOns showed that, at the maXIma of the salary ranges, there had never been a dIfferentIal ofless than 5% at the relevant tIme, and that as of January 1 2006 the dIfferentIal between the maXIma was approxImately 17% She acknowledged that others mIght have a dIfferent understandIng of compreSSIOn, and said that the dIfferentIal wIll change over tIme, as there are changes to eIther or both classIficatIOns She mentIOned that another term used In a colloqUIal fashIOn IS "earnIng more" whIch may often Include premIUm pay such as overtIme, whIch can Introduce a great deal of van abIlIty Into the actual pay of people In the same or neIghbounng classIficatIOns That IS why the central agency looks at base salary for companson purposes, rather than other elements of compensatIOn that may frequently shIft. LookIng at the documents on whIch the gnevors relIed, Ms Caplan found Mr Commeford's letter unclear for a number of reasons For Instance, the term "all InstItutIOnal managers" makes the statement look very general, but gIven that It speaks of 3%, It appears to be refemng to pay on promotIOn, whIch IS applIed IndIVIdually The amount of a promotIOnal Increase IS an IndIVIdual matter dependIng on the relatIOnshIp between the salary of the person beIng promoted and the salary range for the Job he or she IS beIng promoted Into So the term "all InstItutIOnal managers" IS Incongruent WIth establIshed promotIOnal polIcy As to the term "current CO rate" It IS not clear what class of CorrectIOnal Officer IS Intended, or as of what date, and whether they are speakIng of the annual eqUIvalent, or the hIghest step of the gnd. She notes that CorrectIOnal Officers' pay IS set as an hourly rate and has to be converted to an annual rate for purposes of companson wIth managers She quened whether the phrase refers to all correctIOnal officers' 7 rates as a general matter or the IndIVIdual's rate as a CorrectIOnal Officer Just pnor to promotIOn. It IS the latter whIch IS relevant for the applIcatIOn of promotIOnal Increases accordIng to the terms of the Pay on AssIgnment OperatIng PolIcy at page 5 whIch reads as follows For management employees, pay on promotIOn IS 3 percent or an Increase to bnng the employee to the mImmum of the new salary range, whIchever IS greater Managers must approve hIgher Increases of up to 5 percent. Deputy heads must approve promotIOnal Increases to a maXImum of 8 per cent. As to Ms Fuller's memo and the reference to Mr Rabeau's IndIcatIOn that all managers should be compensated 3% above the salary maXImum of theIr dIrect reports, Ms Caplan said that he dId not have the authonty to make that commItment, as there IS no establIshed polIcy that speaks to a dIfferentIal between managers and theIr dIrect reports Further no AssIstant Deputy Mimstry or Deputy Mimster In CorrectIOns or any other mImstry has the authonty to gIve such an Increase The statement that, at the tIme of promotIOn or hIre Into the OperatIOnal Manager posItIOn, IndIVIduals would be revIewed to determIne whether theIr salary IS 3% above the current C02 rate, seemed to her to be a mImstry customIzatIOn or enhancement of the promotIOnal polIcy of a mImmum 3% promotIOnal Increase Ms Caplan explaIned that If an employee was qUIte low In the pre-promotIOn classIficatIOn, more than 3% mIght be needed to reach the mImmum of the managenal pay range However It IS not a feature of the standIng polIcy to ensure a dIfferentIal of 3% above the current C02 rate Nonetheless, It may be noted, for employees promoted out of the ranks of bargaInIng umt CorrectIOnal Officers, the 3% promotIOnal Increase has the effect of provIdIng such a dIfferentIal wIth that employee's rate as a CorrectIOnal Officer at the tIme of promotIOn. The Parties Submissions The gnevors rely on the statements made In the June 18 document, and submIt that the first three measures were Implemented, but that the last one, whIch promIses them a dIfferential of 3% between theIr salary and that of the CorrectIOnal Officers, has not. They take the posItIOn that 8 even If the statements made to them are not polIcy they are defimtely a condItIOn of employment, and that the employer should be reqUIred to follow them As to whether or not the Mimstry was authonzed to offer or Implement these Increases, Mr Hill argued that mImstnes are, as a matter of fact, responsIble for these thIngs, as authonzatIOn had to have come from somewhere to Implement the first three measures set out In Mr Commeford's letter On behalf of the gnevors, Mr Hill emphasIzed that they do not want the salary ranges changed. They are seekIng only a change In theIr placement In the OM-16 salary range ThIS would have the effect of rectIfYIng the erosIOn of the dIfferentIal between theIr salanes and that of theIr dIrect reports, as well as amelIoratIng the sItuatIOn where OperatIOnal Managers promoted later than the gnevors, after the bargaInIng umt Increases had been Implemented, earn more than the gnevors, due to the applIcatIOn of the pay on promotIOn to a hIgher pre-promotIOn base salary It IS the employer's posItIOn that there has been no breach of any term or condItIOn of the gnevors' employment, and that the Board IS not In a posItIOn to grant the gnevors what they seek. Counsel argues that there IS nothIng untoward In the fact that, as a result of the tImIng of theIr promotIOns, as compared to the tImIng of later Increases to the bargaInIng umt wage gnds, the dIfferentIal between themselves and theIr dIrect reports was eroded for a penod of tIme Counsel argues specIfically that the documents relIed on only speak to pay on promotIOn, and do not provIde that OperatIOnal Managers' salary should always be 3% above theIr dIrect reports It IS common ground that the gnevors all receIved a 3% promotIOnal Increase onJOImng the ranks of OperatIOnal Managers Employer counsel emphasIzes that, after theIr promotIOns out of the bargaInIng umt, the gnevors' salanes are no longer tIed to those of the bargaInIng umt. Instead, they are elIgIble for authonzed Increases to the wage gnds for the OM-16 classIficatIOn, as well as pay for performance, a category of Increases not avaIlable to bargaInIng umt members Counsel refers to the decIsIOn of the Gnevance Settlement Board dated October 11 2005 In OPSEU (Cartwright et. al.) and The Crown in Riszht of Ontario (Ministrv of Community Safety and Correctional Services) GSB #2002-1457 et. al (Abramsky) for a descnptIOn of the dIfferences In the wage cycles of the two groups of employees Counsel charactenzes the gnevors' argument as a claim that they should benefit each tIme theIr dIrect reports receIve an Increase, whIch would mean 9 theIr pay was negotIated, In sIgmficant part, by the umon, a proposItIOn whIch he urges the Board to reJ ect. As to the oral statements and letters at the basIs of the gnevors' claim, counsel argues that they are not bIndIng terms and condItIOns of employment. Further when looked at In detaIl, and In context, they are ambIguous at best, too unclear to be consIdered enforceable Further counsel argues that allowIng these gnevances would have the result of affordIng these SIX gnevors more favourable treatment than every other OperatIOnal Manager Moreover counsel argues, even If the documents relIed on are not found to be ambIguous, the authors of those commumcatIOns had no authonty over wages, and thus were not capable of creatIng or amendIng such a term or condItIOn of the gnevors' employment Others have the authonty to recommend and authonze the kInd of changes Included In the promIse whIch the gnevors claim was made, but Deputy Mimsters and AssIstant Deputy Mimsters do not. Counsel emphasIzes that the other sIde of the COIn would be that If they have authonty to Increase wages, they would have authonty to decrease wages, somethIng the gnevors are not advocatIng. The eVIdence IS clear that what the gnevors are askIng would fly In the face of the eVIdence of the underlYIng mechamsm for settIng managenal salanes and benefits, In counsel's submIssIOn. In thIS respect, counsel refers to the Board's decIsIOn dated December 7 2005 In Garratt and the Crown in riszht of Ontario (Ministrv of Health and Lonsz Term Care P-2003-1670 (O'NeIl) Counsel maIntaInS that the statements attnbuted to Mr Commeford do not amount even to a verbal contract, as they lack specIficIty For Instance, do hIS statements refer to 3% over the mId-range for C02's, the mImmum or the maxImum? Or IS It COl 's? Or IS It the gnevor's prevIOUS earmngs as a CorrectIOnal Officer? As well, the gnevors' statements about Mr Commeford's replIes to the Inqumes by the OperatIOnal Managers Included words to the effect that they would look Into It, hardly a clear promIse to pay It IS the employer's posItIOn that there IS sImply no eVIdence of a mutual understandIng that the gnevors' pay would be amended In the way they claim. Further the commumcatIOns do not have the same status as govermng legIslatIOn or polIcy Counsel submIts that the gnevors have to show a breach of polIcy or statute before they are entItled to a remedy 10 Further counsel notes that there IS nothIng In polIcy or statue that says that the dIfferentIal that they were earnIng after promotIOn would never decrease *** As noted at the outset of thIS deCISIOn, the Issue to be determIned IS whether there IS a term or condItIOn of the gnevors' employment entItlIng them to an ongOIng 3% dIfferentIal above the CorrectIOnal Officer rate, or that of theIr dIrect reports ThIS IS essentIally a questIOn of contract law Is It part of the gnevors' contract of employment that theIr salary should always be 3% above that of the correctIOnal officers they supervIse? In order to be successful In thIS case, the gnevors must show that the employer offered and agreed to that provISIOn. The eVIdence IS clear that there IS no such provIsIOn of the gnevor's contract of employment set In accordance wIth the employer's polIcIes on compensatIOn, whIch reqUIre an Order-In-CouncIl to bnng about an Increase of the kInd sought by the gnevors The only eVIdence before me of a polIcy document of a general nature that speaks to a dIfferentIal between a managenal and bargaInIng umt salary IS the Pay on AssIgnment OperatIng PolIcy It IS clear from that polIcy that, for people promoted out of the bargaInIng umt, what IS guaranteed IS a dIfferentIal of at least 3% between the newly promoted person's individual bargaInIng umt wage as It was nght before the promotIOn. Higher Increases can be awarded If necessary to bnng the person to the mImmum of the new salary gIrd. The polIcy says nothIng about an ongOIng dIfferentIal, or a relatIOnshIp between any specIfic portIOn of the bargaInIng umt gnd on an ongOIng basIs for any manager Thus, the gnevance cannot succeed based on the employer's establIshed polIcIes Indeed, the gnevors were clear that they were not seekIng a promotIOnal Increase, such as provIded by the Pay on AssIgnment OperatIng PolIcy as they acknowledge havIng receIved theIr 3% promotIOnal Increases, whIch was sufficIent to take them Into the managenal pay range AccordIngly the questIOn becomes whether the statements by Messrs Commeford and Ms Fuller amount to an enforceable condItIOn of the gnevors' employment, whIch affords them more than what IS set out In the Pay on AssIgnment OperatIng PolIcy StartIng wIth the letter from Mr Commeford, the statement relIed on IS that "All InstItutIOnal managers confirmed as of July 31 2003 wIll be compensated 3% above the current CorrectIOnal Officer rate" That statement can be read to support the argument of eIther sIde If one emphasIzes the word 11 "confirmed" It can be read as close to a descnptIOn of the pay on assIgnment polIcy In that If one IS promoted out of the bargaInIng umt, from the CorrectIOnal Officer classIficatIOn, a 3% mImmum Increase wIll put the newly promoted manager 3% above hIS or her current CorrectIOnal Officer rate at the moment of confirmatIOn as a manager As noted above, If the CorrectIOnal Officer IS at the maXImum of the bargaInIng umt gnd Just pnor to promotIOn, whIch was the case for each of the gnevors, It wIll put the IndIVIdual at 3% above the maXImum of the CorrectIOnal Officer 2 rate By contrast, If the emphasIs IS put on the word "compensated" It can sustaIn the InterpretatIOn favoured by the gnevors, In that In can be read as a present and contInuIng statement that the compensatIOn wIll be 3% above the CorrectIOnal Officer rate There are problems wIth thIS InterpretatIOn, as noted by counsel for the employer however It leaves unanswered the questIOn whIch CorrectIOnal Officer rate? And what IS the sIgmficance of July 31 2003 date? To make sense of It as an ongoIng dIfferentIal, rather than as an IndIVIdual promotIOnal Increase one has to add the words "at least" before the 3%, SInce there are clearly many InstItutIOnal managers who make more than 3% above even the maXImum of the bargaInIng umt rate And one has to wonder why Mr Commeford would have been offenng a salary reVISIOn In the latter part of a letter whIch opened by explaInIng that the result of the consultant's reVIew was that there would be no salary reVISIOn for the OperatIOnal Managers group TurnIng to Ms Fuller's memo It IS somewhat more preCIse In statIng that Deputy Mimster Rabeau has IndIcated that "all InstItutIOnal managers should be compensated 3% above the salary maXImum of theIr dIrect reports" ThIS answers the questIOn of what part of the salary gnd (the maxImum), and whIch correctIOnal officers (the dIrect reports) are Intended. But If Interpreted the way the gnevors ask, It creates the sItuatIOn, unlIkely to have been Intended by semor management, where a manager's salary could vary upon the semonty and classIficatIOn of the people supervIsed as they mIght change from tIme to tIme, and In whIch a sIgmficant portIOn of a manager's salary would be tIed to the amount negotIated by the bargaInIng agent. As well, and as wIth the Commeford letter It IS necessary to read In the words "at least" before the 3% to make sense of the statement for all managers Further and more Importantly when Ms Fuller's commumcatIOn IS read In ItS entIrety In context WIth the sentence whIch follows the one on whIch the gnevors rely It IS dIfficult to 12 accept that what she was descnbIng was an ongOIng, permanent dIfferentIal of at least 3% That folloWIng sentence, "At the tIme of promotIOn or hIre Into the OperatIOnal Manager posItIOn each IndIVIdual wIll be revIewed to determIne whether or not hIs/her salary IS 3% above the current C02 rate" appears to be descnbIng somethIng close to the provIsIOn of the Pay on AssIgnment OperatIng PolIcy as It refers to "the tIme of promotIOn or hIre" and says that the reVIew may result In a greater than 3% promotional Increase If the salary IS not 3% above the current C02 rate It dIffers somewhat from the provIsIOn of the Pay on AssIgnment PolIcy In that the polIcy provIdes an Increase of 3% or whatever IS necessary to bnng the person Into the mImmum of the new salary gnd, rather than an explIcIt companson WIth a CorrectIOnal Officer rate However for the gnevors, who were promoted out of the maXImum of the C02 rate, both the formulatIOn In the memo from Ms Fuller and the Pay on AssIgnment PolIcy YIeld the same result. Therefore the formulatIOn In Ms Fuller's memo does not YIeld them any greater promotIOnal Increase Nor does It provIde the permanent dIfferentIal they are seekIng. As well, the basIc pnncIples set out In her memo such as the fact that the Mimstry does not control salary Increases and that overlap between salary gnds IS not uncommon In the publIc servIce, weIgh agaInst the InterpretatIOn of her memo urged by the gnevors There remaInS the questIOn of the effect of the verbal statements made by Mr Commeford. The eVIdence does not dIsclose whether or not Mr Commeford personally Intended to offer the gnevors what they are seekIng. The actual comments whIch Mr Hill testIfied that Mr Commeford made do not go that far They were qualIfied by comments to the effect that hIS subordInate was to look Into It, or the Supenntendent was to get In touch. Further an affirmatIve answer to the questIOn whether the managers were to be maIntaIned at 3% above those reportIng to them IS also ImpreCIse for the same reasons as the wntten statements dealt wIth above Would the salary change, dependIng on the placement of the gnd of the IndIVIduals beIng supervIsed? Was It the mImmum, mId-range or maxImum? The statements do not commumcate the answers to those questIOns ConsIdered all together It IS the Board's findIng that the statements relIed on by the gnevors are qUIte ambIguous Where contractual terms are ambIguous, the law allows reference to other eVIdence to resolve the ambIgUIty If It shows a clear mutual understandIng as to the meamng of the contractual term In thIS regard, whether or not the vanous Mimstry spokespersons had the authonty to commumcate the compensatIOn changes the gnevors are claimIng, or whether they 13 were Intended as contractual provIsIOns, there IS no eVIdence before me sufficIent to establIsh that the ambIgUIty ought to be resolved In the gnevors' favour There IS no eVIdence, for Instance of a past practIce that supports the gnevor's VIew of the employer's IntentIOn. Much ofMs Caplan's eVIdence dealt wIth past practIce In the settIng of managenal compensatIOn and In dealIng wIth compressIOn Issues, all of whIch supports the employer's case, rather than the gnevors' As well, If one looks for the InterpretatIOn of the dIfferent formulatIOns In eVIdence whIch gIves as harmomous a readIng as possIble, of them all, read together the eVIdence does not support a findIng that the employer offered and agreed to an ongOIng dIfferentIal of 3% over the maXImum of the C02 salary gnd, whIch IS what the gnevors claim Rather It seems more lIkely that the offers beIng made referred to treatment on promotIOn, rather than an ongOIng dIfferential wIth salary Increases tnggered by Increases bargaIned wIth the umon. At ItS hIghest, the Mimstry appears to have been offenng an enhanced promotIOnal Increase, under the dIscretIOnary authonty gIven to Mimstry managers In the Pay on AssIgnment OperatIng PolIcy As noted above even If the Board were to accept that there was a bIndIng offer of a promotIOnal Increase of 3% over the maXImum of the C02 wage gnd, a pOInt on whIch It IS not necessary to make a findIng, the gnevors receIved a promotIOnal Increase of 3% over the maXImum of the C02 wage gnd, because that was theIr classIficatIOn ImmedIately before promotIOn, and would accordIngly not be entItled to any further compensatIOn as remedy To accept the gnevors' claim would be to Interpret the ambIguous statements In eVIdence In a way very substantIally at odds wIth the long-establIshed mechamsm for settIng ongOIng salary Further even though they say they are only seeking a revIsed placement on the managenal gnd, rather than an Increase to the OM-16 gnd, the gnevors claim an ongOIng nght to be moved on the gnd each tIme the bargaInIng umt receIves an Increase If they are not earmng at least 3% above the maXImum of the bargaInIng umt wage gnd. ThIS would In the end be tantamount to an ongOIng, senal, salary Increase, applIcable to any manager In the OM-16 class In that posItIOn. It would have the further sIgmficant Impact of provIdIng an addItIOnal source of managenal pay Increases not set by the usual mechamsms It IS common ground that the establIshed scheme of managenal compensatIOn has two pnncIpal salary components - the salary range and pay-for- performance awards To grant the gnevors' claim would Introduce a new factor Into thIS scheme whIch the employer's eVIdence IS clear was not beIng offered by the central agency responsIble for makIng recommendatIOns on managenal salary rates SIgmficantly that factor would be 14 determIned by collectIve bargaInIng, whIch IS not the regIme In place for the settIng of managenal compensatIOn. All of these elements weIgh agaInst resolvIng the ambIgUIty In the manner requested by the gnevors In the result, the gnevance IS not successful Mr Hill argued that Mimstry officIals must have had the reqUIsIte authonty concermng compensatIOn Increases or the first three measures outlIned In Mr Commeford's letter could not have been Implemented, as they were In thIS regard, It IS appropnate to emphasIze that the basIs for thIS decIsIOn does not relate to the questIOn of whether or not Mimstry officIals had the authonty to make the compensatIOn Increases claimed. As It turns out, It IS not necessary to decIde that Issue as It IS the Board's findIng that, even If the Mimstry officIals had the reqUIsIte authonty they dId not clearly offer and agree to what the gnevors claim There were ambIguous statements made In the letter and orally some of whIch could be taken to support the gnevors' claim However on balance, and In context, the eVIdence IS not persuasIve that the statements relIed on amounted to an enforceable promIse of an ongOIng dIfferentIal of 3% over the bargaInIng umt rates As to the request that the Pay on AssIgnment OperatIng PolIcy be amended to prevent the problem from recumng In the future, the Board has no authonty to grant such a remedy as It would amount to settIng a term or condItIOn of employment, rather than enforcIng already eXIstIng ones In the result, for the reasons set out above, the gnevance IS dIsmIssed. Dated at Toronto thIS 25th day of August, 2006