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HomeMy WebLinkAboutP-2003-1479.Harris et al.05-12-22 Decision Public Service Commission des Nj Grievance Board griefs de la fonction publique Bureau 600 ~ Suite 600 Ontario 180 Dundas SI. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 P-2003-1479 P-2004-0837 P-2004-1528 P-2004-1720 P-2004-1721 P-2004-1994 P-2004-2380 P-2004-3699 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Harns 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 GRIEVORS Mark Drakos (gnevor), SheIla Zub (gnevor) Richard HiggIns (assIstIng SheIla Zub) Rob Botham (gnevor) Marlene McKee (gnevor), Ryan Selleck (assIstIng Marlene McKee), Anthony Hill and Lons PuntIllo (gnevors) also representIng WillIam Horobetz, Lawton Callender Mikey Badal and Bruce FIndlay (all gnevors) FOR THE EMPLOYER Sean Kearney Semor Counsel Mimstry of Government ServIces HEARING November 2, 2005 2 DeCISIon ThIS deCISIOn deals wIth prelImInary motIOns brought by the employer In respect of several gnevances from OperatIOnal Managers (OM16's) employed at vanous correctIOnal InstItutIOns, grouped together as dealIng wIth sImIlar Issues The general outlIne of the employer's argument IS set out first, followed by a more detaIled consIderatIOn of the motIOns as applIed to each of the gnevances In turn. As wIll be seen, although the gnevances each relate In some way to pay for OperatIOnal Managers, there are Important dIfferences among the vanous gnevances Emplover Objections. Timeliness and Jurisdiction The employer's tImelIness obJectIOns are based on the submIssIOn that, wIth the exceptIOn of the Drakos gnevance, the gnevances were filed well after the 14-day tIme lImIt set out In s 34(1) of The Public Service Act as follows 34 (1) A person descnbed In subsectIOn (2) who IS aggneved about a workIng condItIOn or term of hIS or her employment may file a gnevance wIth hIS or her deputy wIthIn 14 days after becomIng aware of the workIng condItIOn or term of employment gIVIng nse to the gnevance OReg. 168/96 s 6 (1) Further they are said to be beyond the JunsdIctIOn of the Board as they are askIng for salary reVISIOns that go beyond the terms or condItIOns of theIr employment. On the tImelIness Issue counsel submItted that the law IS now well establIshed that gnevors must be dIlIgent and proactIve In purSUIng theIr gnevances Further there IS no need for the employer to prove preJudIce Rather the onus IS on the gnevor to establIsh grounds for any extensIOn of tIme beyond the tIme lImIts In the Public Service Act, and compellIng reasons are reqUIred. Further the employer argues that none of the cases before the Board on thIS occaSIOn raise Issues 3 of the senous nature that has called for extensIOns of tIme In other cases, such as human nghts Issues, or dIsmIssal To support the above proposItIOns, the employer relIed on the folloWIng case law dealIng wIth delay In filIng gnevances Coccia and The Crown in Riszht of Ontario (Ministrv of Communitv Safety and Correctional Services) PSGB#2003-3552 (LeIghton) dealIng wIth a twenty-day suspenSIOn, Johnson and Smith and The Crown in Right of Ontario (Ministrv of the Solicitor General and Correctional Services) PSGB#P/000l/99 P/0005/99 (Agarwal), dealIng wIth how employees on a compressed work week are to be credIted for a regular day off whIch falls on a statutory holIday OPSEU (Smith) and The Crown in Right of Ontario (Ministrv of Northern Development and Mines) GSB #2002-0243 -0244 and -1243 (Mikus) dealIng wIth a Job competItIOn gnevance, and OPSEU (St. Jean et. al.) and The Crown in Right of Ontario (Ministrv of Correctional Services) GSB #2001-1122 (LeIghton) a claim for travel tIme As to the JunsdIctIOn of the Board, employer counsel emphasIzes that the Board has no JunsdIctIOn to deal wIth salary problems such as compreSSIOn or InVerSIOn, unless a specIfic polIcy statute or other term or condItIOn of employment has been shown to be breached. Further pay for performance gnevances are beyond the JunsdIctIOn of the Board because of s 31 (4) of RegulatIOn 977 under The Public Service Act Counsel relIed on Tvrell et al. and The Crown in Riszht of Ontario (Ministrv of Communi tv Safetv and Correctional Services) PSGB#2003-2687 et. al (Carter) Garratt and The Crown in Riszht of Ontario (Manaszement of Health and Lonsz-Term Care) PSGB # 2003-1670 (O'NeIl) Scott et. al. and The CroYf,n in Riszht of Ontario (Ministrv ofTransfJortation) PSGB# P/000l/96 (Lynk), OPSEU (Cartwriszht et. al.) and The Crown in Right of Ontario (Ministrv of Community Safety and Correctional Services) GSB #2002-1457 et. al (Abramsky) 4 In general, Counsel submItted that even If everythIng the gnevors say In theIr gnevances IS accepted, they have not made out a case that the Board can remedy In other words, the employer submItted that the gnevors have not made out a prima facie case Grievance of Mark Drakos (P-2004-17217 On July 13 2004 Mr Drakos gneved that hIS salary had been Improperly calculated. ThIS followed a senes ofletters from the employer the first of whIch he receIved on June 4 2004 The first letter from Mr Gary Commeford, AssIstant Deputy Mimster Adult InstItutIOnal ServIces, announced a salary adJustment, as part of a Mimstry response to the fact that some OperatIOnal Managers hIred In the mass recruItment of November -December 2001 were beIng compensated at a lower rate than that of OperatIOnal Managers hIred In 2002 The letter contaInS the folloWIng paragraph, whIch IS central to the dIspute between the partIes In order to address thIS sItuatIOn the Mimstry has decIded that the salanes of the OperatIOnal Managers hIred dunng the mass recruItment ImtIatIve In late 2001 wIll have theIr salanes adJusted to 3% above the 2003 CorrectIOnal Officer salary retroactIve to Apnl 1 2002 The letter further IndIcates that no polIcy had been breached In the creatIOn of the dIfference In compensatIOn, but that semor management had decIded It was appropnate to adJust salanes of OM's hIred dunng the mass recruItment, on a wIthout preJudIce or precedent basIs Two subsequent letters are also relevant, one dated June 22,2004 whIch amended the retroactIvIty date to January 1 2002, and a second dated July 13 2004 sent after the gnevor had made Inqumes, specIfYIng that the salary adJustment was to be a lump sum payment, and the reVIew of the percentage dIfferentIal would cease once hIS salary was eqUIvalent to or In excess of, $25 59 per hour ThIS letter contaInS the folloWIng paragraph 5 The Mimstry recently decIded that OperatIOnal Managers hIred dunng the mass recruItment ImtIatIve, In late 2001 would be compensated wIth a lump sum payment eqUIvalent to the dIfference between theIr actual earnIngs and 3% above the 2003 CO salary of $53 421 retroactIve to January 1 2002 ThIS IS a somewhat dIfferent descnptIOn of the pay adJustment than contaIned In the letter of June 4 and In Mr Drakos' VIew does not gIve hIm the salary adJustment he was entItled to by vIrtue ofMr Commeford's letter In hIS VIew In order to receIve the benefit of what was promIsed In the letter the adJustment should have been "rolled Into" hIS salary rather than treated as a temporary top-up paid out In a lump sum. The Mimstry says that the Board has no JunsdIctIOn over thIS gnevance because the lump sum payments were gratUItous, rather than reqUIred by polIcy Counsel submIts that there was no oblIgatIOn to pay the adJustment, and thus the gnevance should not proceed, SInce Mr Drakos, as an employee, IS not In a posItIOn to determIne how long the pay adJustment lasts Refernng to paragraph 23 of Garratt, cIted above, counsel submIts that the gnevor has not establIshed any basIs for an entItlement ansIng from a clear breach of statute or polIcy and thus It IS not necessary to determIne the ments Rather the case should be dIsmIssed at the outset. F or hIS part, Mr Drakos takes the posItIOn that the employer's offers of a salary Increase became a term or condItIOn of hIS employment. Further the gnevor says he IS not beIng treated fairly because the employer's InterpretatIOn of the new salary adJustment, to the effect that only a lump sum IS due IS arbItrary Employer counsel replIes that the documentatIOn shows that the gnevor was not treated arbItranly Mimstry staff went through the why and the how of the calculatIOn of the adJustment, analyzIng every pay penod, whIch IS the OpposIte of arbItranness Finally employer 6 counsel argues that In the absence of any proof that anyone else receIved the adJustment rolled Into salary there IS no foundatIOn to the gnevance It IS Important to be clear that at thIS stage of the proceedIngs, where a prelImInary motIOn IS made suggestIng that there IS no legal basIs for the gnevor's claim, the Issue IS not whether the gnevance IS sure to succeed, or whether the employer has a good defense to the gnevance Rather the Issue IS whether the gnevor has made out an arguable case Here, the gnevor pOInts to officIal correspondence promISIng a pay adJustment, and says that he was not gIven full benefit of It. In the Board's VIew even If the employer was under no oblIgatIOn to send that correspondence there IS an arguable case that once the gnevor was advIsed that he would receIve the pay adJustment set out In the June 4 2004 letter It became a term of the gnevor's employment. The partIes dIsagree about the nature and duratIOn of the pay adJustment promIsed, and whether It actually IS a term or condItIOn of the gnevor's employment, but these are Issues In need of a heanng on the ments and fuller argument as to the dIstInctIOn posIted by the employer between a gratUItous payment and an enforceable term or condItIOn of employment. As referenced at paragraph 14 of the Garratt decIsIOn, the Board's JunsdIctIOn extends to decIdIng dIsputes over what terms and condItIOns of pay are and whether they have been correctly applIed. In the result, Mr Drakos' gnevance may proceed to a heanng on the ments Grievance of Marlene McKee (P-2OO4-23801 Ms McKee's gnevance IS dated June 11 2004 and complaIns of two thIngs FIrstly In a letter vIrtually IdentIcal to ones sent by gnevors Harns and GardIner she complaIns, that, when she 7 was promoted on November 11 2001 the employer gave no consIderatIOn to gIVIng more than a 3% Increase, even though the Pay on AssIgnment PolIcy authonzes Supenntendents to approve Increases up to 5% and RegIOnal DIrectors to approve Increases from 5% to a maXImum of 8% She claims she should have been gIven an opportumty at a meetIng to artIculate her expenence and qualIficatIOns As remedy she asks for a 5% Increase to her base salary retroactIve to November 11 2001 IncludIng all momes earned dunng the 2002 OPSEU stnke Secondly In the referral of her gnevance to the Board on November 10 2004 and In a letter to the employer dated March 26 2003 the gnevor also complaIns that the employer Improperly treated a penod of tIme when she stepped down from beIng an actIng manager as a break In servIce She requested that her actIng tIme be backdated wIthout a break In servIce, whIch would have placed her at the top rate In Apnl 2001 ThIS part of her claim IS also lInked to the request for a meetIng, as she says the problem mIght have been caught at the tIme If there had been dIscussIOn about It. Ms McKee started actIng as an OperatIOnal Manager In 1998 but stepped down Into the bargaInIng umt dunng collectIve bargaInIng In 1999 and 2000 The gnevor asserts that she stepped down and resumed actIng In 1999 and 2000 on the understandIng wIth her managers that she was resumIng her former actIng assIgnment, rather than commenCIng a new one, and was unaware that the Mimstry would consIder It a break In servIce For example dunng the OPSEU bargaInIng In 2000 she IndIcates she dIscussed the pressured sItuatIOn WIth her managers before she stepped down and was assured by them that there would be no adverse effects on her contInuIng her actIng assIgnment once the labour dIspute was resolved. When she resumed actIng as an OM16 a few weeks later In Apnl 2000 she agaIn receIved a 3% Increment, but lost credIt for her prevIOUS raises as an actIng manager She IndIcates that her servIce date for these purposes had prevIOusly been establIshed on commencement of her actIng OperatIOnal Manager 8 assIgnment In March 1998 In November 2001 she was confirmed as an OperatIOnal Manager but was not aware at the tIme of the polIcy provIsIOns and InfOrmatIOn on whIch she now relIes For example, she has SInce receIved InformatIOn that all actIng managers were not treated equally as others have been able to maIntaIn theIr Increments wIthout beIng penalIzed for havIng ceased actIng assIgnments dunng vanous umon actIOns and stnkes Ms McKee cItes the example of another OperatIOnal Manager Ms Wood, who competed for and won a permanent OM posItIOn In 2003 but was allowed to retaIn the top salary rate despIte steppIng down from her actIng assIgnment In 1996 1999 and 2002 In Ms McKee's submIssIOn, thIS sItuatIOn would not be possIble IfMs Wood had been reduced to the top CorrectIOnal Officer rate plus 3% after each tIme she stepped down. As to the tImelIness obJectIOn, It was submItted on behalf of the gnevor that she gneved In tIme once she became aware of the applIcable polIcy whIch reads - for management employees, pay on promotIOn IS 3 percent or an Increase to bnng the employee to the mImmum rate of the new salary range, whIchever IS greater Managers must approve hIgher Increases of up to 5 per cent. Deputy heads must approve promotIOnal Increases to a maXImum of 8 per cent. A new anmversary date must be establIshed for an employee who IS promoted based on the date of promotIOn. The same polIcy also provIdes that where an employee IS assIgned to an actIng assIgnment WIth a hIgher salary maXImum, pay treatment wIll be the same as In promotIOn, as above When asked about the fact that she had not gneved In 2001 when she was confirmed, she said she was tryIng to get Into a non-closIng InstItutIOn at the tIme and was unaware of the polIcy She dId not ask for an opportumty to SIt down and dISCUSS an Increase beyond the 3% around that 9 tIme as she had not In 1999 because she was not aware It was a pOSSIbIlIty However she dId ask the clerk at the Ontano CorrectIOnal InstItutIOn about her Increment, and was told she would not be gettIng anythIng other than the 3% Shortly afterwards, thIngs became hectIc as everyone was rampIng up for the stnke In 2002, and she started at a new InstItutIOn four days before the start of the stnke In March 2002 Then, Managers dId not receIve retroactIve pay for the penod whIch Included the stnke untIl October or September 2002 Ms McKee testIfied as to her dIfficulty In ascertaInIng what the proper pay treatment should be She IndIcated that she had receIved many dIfferent and confusIng messages In her attempts to get answers, and that wIthout a collectIve agreement to work wIth, the answers often depended on whIch IndIVIdual she was speakIng wIth. She found Issues around pay for performance partIcularly ambIguous, especIally for new people As a layperson, tryIng to be patIent, but wantIng to be treated fairly and eqUItably she found that the traInIng for all concerned was Inadequate In regards to how OM's should be treated. The gnevor takes the wordIng of the clause set out above as IndIcatIng that there IS an optIOn for an Increase of up to 8% on promotIOn. Her wntten statement of gnevance also refers to the polIcy provIsIOn that allows a new-hIre employee the opportumty to artIculate better-than- average expenence and qualIficatIOns whIch may JustIfy an exceptIOn to startIng that new employee at the mImmum salary The gnevor claims that the fact that she was not afforded eqUItable treatment and the same opportumty to artIculate her better-than-average expenence and qualIficatIOn IS "scurnlous, dISCnmInatory and In blatant vIOlatIOn of the Pay on AssIgnment PolIcy" The provIsIOn In questIOn reads as follows 10 INITIAL ASSIGNMENT - NEW EMPLOYEES Non - ProVI SI onal - New employees must be paid at the mImmum rate of the salary range of the class of the posItIOn to whIch they are assIgned. Market condItIOns or cases where candIdates have better-than-average expenence and qualIficatIOns may JustIfy exceptIons Employer counsel charactenzed thIS as a claim that, regardless of whether one gets the 3% Increase on promotIOn, the Mimstry should SIt down and appraise her past performance and possIbly gIve an Increase up to 8%, somethIng not provIded for In the polIcy Employer counsel argues that the gnevance should have been filed In a tImely manner It IS the employer's posItIOn that the eVIdence dId not establIsh any compellIng reason to extend the tIme lInes for the length of tIme reqUIred to capture her Issues She should have filed 15 days after her faIlure to get the credIt she thought was appropnate In March 1999 or March 2000 It IS clear that she would have apprecIated after she stepped down and back that she was not gettIng the hIgher Increase Employer counsel submItted a decIsIOn of the Ontano Crown Employees Gnevance Settlement Board (GSB) whIch Includes an overvIew of the employer's approach to pay for those on actIng assIgnments dunng the same tIme penod, OPSEU (CartJ+riszht et al) and The CroYf,n in Riszht of Ontario (Ministrv of Communi tv Safetv and Correctional Services) GSB#2002-1457 et. al (Abramsky) In the Cartwright case the GSB remarked that employees on actIng assIgnments appear to be In a "no man's land" where neIther the GSB nor the PSGB has JunsdIctIOn over any claims from an actIng manager that the employer has not properly applIed ItS own polIcIes ThIS puts Into 11 questIOn the employer's assertIOn that the gnevor could have gneved In 1999 or 2000 but does not speak to the penod after her confirmatIOn as a manager In 2001 Employer counsel submItted that the percentages above 3% In the polIcy are there to gIve management the fleXIbIlIty to see that a newly promoted employee gets to the mImmum of the managenal classIficatIOn, as there are often larger dIfferences between bargaInIng umt and managenal rates The polIcy does not offer more than 3% unless 3% IS InSUfficIent to take a newly promoted employee to the mImmum of the applIcable managenal salary range It would flow from thIS argument that the wordIng concermng approval of hIgher Increases IS Intended only to set out who needs to do the approval, whIch vanes accordIng to the SIze of the Increase, If an employee needs an Increase of more than 3% to get to the mImmum of the managenal pay scale Further counsel submItted that the claim, made by Ms McKee, as well as others of the gnevors who wIll be dealt wIth below that there should have been a meetIng to evaluate theIr expenence and contnbutIOn, and to consIder an Increase of more than 3% IS InarbItrable ThIS IS because It amounts to a request for pay for performance whIch IS beyond the JunsdIctIOn of the Board by VIrtue of s 314) of RegulatIOn 977 under The Public Service Act, whIch reads as follows 31 (4) No gnevance shall Include a complaInt In respect of the folloWIng matters 1 A complaInt that a posItIOn should be classIfied. 2 A complaInt that a posItIOn IS In the wrong classIficatIOn. 3 A complaInt relatIng to a release from employment under subsectIOn 22 (4 1) of the Act. 4 A complaInt regardIng the method of evaluatIng an employee's performance 5 A complaInt regardIng the evaluatIOn of an employee's performance 6 A complaInt regardIng the compensatIOn provIded or demed to an employee as a result of an evaluatIOn of hIS or her performance 0 Reg. 59/03 s 1 12 It IS argued that paragaph SIX In partIcular takes away the nght to any gIrevance based on pay floWIng from the evaluatIOn of performance Conclusion on Jurisdictional issue McKee Ms McKee and other gnevors are askIng for IndIVIdual evaluatIOns of theIr expenence and qualIficatIOns as the polIcy affords to new employees In the case of an employee who IS beIng promoted, IndIVIdual evaluatIOn of expenence and qualIficatIOns, as a basIs for Increases beyond the mImmum 3%, looks very much lIke a request for evavaluatIOn of, and pay for performance, whIch IS somethIng that has been removed from the JunsdIctIOn of the Board by the above regulatIOn. However It IS not necessary to determIne factually whether there IS any sIgmficant dIfference between evaluatIOn of qualIficatIOns and expenence on promotIOn and evaluatIOn of performance because of the VIew taken below as to the employer's alternatIve argument. In the Board's VIew the portIOn of the gnevances claimIng more than 3% on promotIOn should be dIsmIssed because even assumIng the facts asserted to be true and provable, no arguable breach of the Pay on AssIgnment PolIcy has been shown. There IS no assertIOn that any of the gnevors were paid somethIng less than 3% or any greater Increase necessary to bnng the employee to the mImmum of the managenal pay gnd on promotIOn. It IS the Board's VIew that In order to have a vIable gnevance to the effect that an employee should have receIved more than 3% on promotIOn, a gnevor would have to demonstrate that he or she needed more than 3% to get to the mImmum of the managenal pay scale, and dId not receIve It, whIch IS not the case for any of the gnevors In the group dealt wIth In thIS decIsIOn. On thIS pOInt the polIcy language IS clear As wntten, the only entItlement to a pay Increase In the sectIOn of the Pay on AssIgnment polIcy quoted above IS In the first sentence "for management employees, pay on promotIOn IS 3 13 percent or an Increase to bnng the employee to the mImmum rate of the new salary range, whIchever IS greater" Increases greater than 3% necessary to bnng the employee to the mImmum rate of the new salary range are allowed, but there IS no other entItlement to an Increase greater than 3%, or to a meetIng to consIder such an Increase, to be found In the language set out above More specIfically the fact that the polIcy sets out who must approve any Increase greater than 3% does not create any such entItlement. As to the allegatIOn relatIng to the provIsIOn relatIng to new hIres, no case has been made out for thIS portIOn ofMs McKee's and others' gnevances eIther ThIS IS because there were no facts asserted to establIsh even an arguable case that any of them were new hIres, that the assIgnment complaIned of was theIr ImtIal assIgnment, or that there was any polIcy practIce or other term or condItIOn of employment suggestIng that the language relatIng to a person's ImtIal assIgnment should be applIed on promotIOn, when there IS specIfic, other language, whIch does apply on promotIOn, and on whIch they rely Further there IS no basIs set out In eIther the wntten or oral matenal before me that forms an arguable basIs for a findIng that It IS dISCnmInatory In the sense of Improper or Illegal dIfferentIal treatment, to apply the dIfferent applIcable provIsIOns to IndIVIduals In the dIfferent sItuatIOns of ImtIal assIgnments as opposed to a later promotIOn. It IS worth commentIng as well on another pOInt raised In Ms McKee's gnevance She wntes that addItIOnal support for her gnevance IS to be found In comments made by AssIstant Deputy Mimster Gary Commeford In early 2004 to a group of OperatIOnal Managers It IS asserted that he said that, In future CorrectIOnal Officers who are promoted to OperatIOnal Managers and are not at the top CorrectIOnal Officer 2 rate wIll have theIr OM pay rate Increased to that of 3% above the top-rate CorrectIOnal Officer pay through the dIscretIOn of RegIOnal DIrectors ThIS appears to be a specIfic statement on compreSSIOn, somethIng dIStInCt from the percentage 14 dIfferentIal necessary to bnng a new manager up to the mImImum of the new salary scale As noted In the July 13 2004 memo on the subJect whIch was In eVIdence, when an Increase to prevent compreSSIOn IS put together wIth the standard promotIOnal Increase, It may lead to an Increase of more than 3% at the tIme of promotIOn. However thIS IS not the same as reVIeWIng an IndIVIduals's expenence In order to gIven them a "better-than-average" Increase on promotIOn, and does not create any entItlement to such an Increase or reVIew For Ms McKee's gnevance, what remaInS IS the portIOn about her claims to Improper dIfferentIal treatment concernIng breaks In servIce whIle actIng, and ItS effect on her present salary In her gnevance, Ms McKee referred to the folloWIng sectIOn of the Pay on AssIgnment OperatIng PolIcy under the headIng "PnncIples" Employee should be paid eqUItably In theIr assIgned salary ranges, takIng Into account such factors as skIlls and Job-related expenence, relatIOnshIp to peers and career progresSIOn. Further there are two other bases suggested for the vIabIlIty of her gnevance In respect of the treatment as to her breaks In servIce as an actIng manager FIrstly the gnevor asserts that her managers made assurances to her to the effect that she would be contInuIng, rather than startIng afresh, In her actIng assIgnments after the penods In whIch she stepped down Into the bargaInIng umt. Secondly there IS the assertIOn of a precedent and practIce of Ignonng breaks In actIng, when computIng salary on entry to the permanent managenal ranks, as Illustrated by the treatment of one of Ms McKee's colleagues As to thIS portIOn of the gnevance, there IS no clear bar to the Board's JunsdIctIOn over the subJect matter such as there IS for pay for performance Further the questIOn of whether an 15 alleged promIse or practIce amounts to an enforceable term or condItIOn of employment IS one WIthIn the Board's JunsdIctIOn to answer Moreover It IS not clear that even If the facts asserted, such as specIfic promIses and practIces, are presumed true that there IS no arguable case for a remedy wIthIn the Board's JunsdIctIOn to gIve SInce the specIfic bases for thIS portIOn of the gnevance are not found In wntten polIcy It IS more dIfficult to ascertaIn what the terms of employment In thIS regard were wIthout a heanng on the ments Thus, It IS the Board's findIng that there IS no sufficIent reason to dIsmIss thIS portIOn of the gnevance on a JunsdIctIOnal basIs, or for lack of a prima facie case There remaInS the questIOn of tImelIness Conclusion on Timeliness issue McKee The employer argues that the Issue as to the gnevor' s salary crystallIzed at the latest on the occaSIOn of her confirmatIOn as a manager In November 2001 and that her gnevance filed In June 2004 IS years late The gnevor starts from the proposItIOn that the tIme lImIts dId not start runmng untIl she became aware of the polIcy In questIOn, whIch was wIthIn the tIme prescnbed. She relIes on the wordIng of s 34 (1) of The Public Service Act, whIch reads as follows A person descnbed In subsectIOn (2) who IS aggneved about a workIng condItIOn or term of hIS or her employment may file a gnevance wIth hIS or her deputy wIthIn 14 days after becomIng aware of the workIng condItIOn or term of employment gIVIng nse to the gnevance OReg. 168/96 s 6 (1) Further she complaIns of the ongOIng effect on her current salary and ItS current IneqUItable relatIOnshIp to others promoted later than she was In thIS regard, employer counsel urges the 16 Board to find that It IS a sItuatIOn of a breach alleged at a specIfic tIme, WIth contInuIng consequences, rather than an allegatIOn of a contInuIng repeated breach. HavIng consIdered the arguments and eVIdence presented, It IS the Board's VIew that the dIspute over the applIcable term or condItIOn of employment ImpairS ItS abIlIty to deal wIth the tImelIness Issue on a defimtIve basIs wIthout a heanng on the ments AssumIng that the gnevor can prove her assertIOns - that her treatment as to pay IS arbItrary In vIOlatIOn of the polIcy set out above as to eqUItable pay In relatIOn to peers, as well as an establIshed practIce, and specIfic promIses from her managers - there IS an arguable case that thIS IS a contInuIng gnevance, InvolVIng a repeated breach of an ongOIng oblIgatIOn to pay at a hIgher rate, based on a cOmbInatIOn of polIcy promIse and past practIce When a matter IS consIdered a contInuIng gnevance, the doctnne of delay IS not applIcable because the matter IS tImely each tIme a contInuIng oblIgatIOn IS breached. For cases canvassIng the case law dealIng wIth sImIlar Issues In the context of arbItratIOns under collectIve agreements, see Re Port Colborne General Hospital and Ontario Nurses Association, (1986) 23 L.AC (3d) 323 (Burkett) Relif[ious Hospitallers of St. Joseph s of Hotel Dieu ofKinszston (1992) 29 L AC (4th) 323 (Stewart) Dufferin-Peel Catholic District School Board (1998) 77 L AC (4th) 69 (HerlIch) and Oakville(Town) (1997) 68 L AC (4th) 117 (O'NeIl) If the employer IS nght that any oblIgatIOn to the gnevor In respect of ItS treatment of her exenence as an actIng manager was concluded In November 2001 then the tImelIness Issue may be better analyzed as In the cases relIed on by the employer and cIted above, or as a case of delayed awareness of a complaInt sImIlar to the sItuatIOns In Laird and the Crown in Riszht of Ontario (Ministrv of Communi tv Safetv and Correctional Services) #P 2003-0799 (O'NeIl) and Amirault and Ministrv of the Solicitor General and Correctional Services P/0028/94 (Lynk) 17 Nonetheless, the fact that thIS portIOn of the gnevance IS arguably a contInuIng gnevance IS sufficIent to allow the Issue of the treatment of the gnevor's breaks In servIce as an actIng manager to go forward to a heanng on the ments Once It IS determIned how the employer's oblIgatIOn to the gnevor should be charactenzed, the Impact of the lapse In tIme between the breaks In servIce and the gnevance can be dealt wIth on a firmer legal and eVIdentIary basIs If at such a heanng, the gnevor IS unable to make out a case that there was a contInuIng practIce whIch should be consIdered a term of her employment or some other enforceable oblIgatIOn to pay her In the fashIOn she alleges or that she has been treated arbItranly as she alleges, that wIll be reflected In the ultImate outcome of the case Grievance of Sheila Zub (P-2004-08371 In SheIla Zub's gnevance, filed on June 17 2003 she complaIns that she has been Improperly paid SInce March 1998 and has been preJudIced as a result on a contInuIng basIs Her complaInt IS somewhat sImIlar to that ofMs McKee In that she claims that she should have been gIven credIt for her prevIOUS expenence as an actIng operatIOns manager wIthout regards to breaks In servIce relatIng to labour relatIOns dIsputes SpecIfically she complaIns that a break In actIng for five months due to the CIrcumstances after the 1996 stnke was Improperly held agaInst her whIle breaks In servIce for others were not. The Mimstry argues that It Ms Zub's gnevance IS untImely and InarbItrable As to the delay Issue, It was submItted on behalf ofMs Zub that the statute speaks to when an employee became aware She testIfied that she became aware of the fact that she was not beIng treated equally wIth others dunng a conversatIOn wIth a co-worker Mr HiggIns on June 5 2003 She gneved less than fourteen days after that tIme 18 Ms Zub testIfied that she attempted to determIne her rate of pay In 1998 after she was appoInted as a full-tIme OM on July 6 1998 Her Deputy Supenntendent checked Into the matter when she asked, but It was decIded that her OM contInUOUS servIce date would be backdated only to March 1 1998 rather than 1994 when she had started actIng. She dId not gneve at the tIme, because she trusted her employer that there was no recourse She referred to two examples of other OM's treated more favourably Roger Long, an OM16 In HamIlton, who was promoted the same day as she was In the summer of 1998 who reached the top of the scale for an OM In 2004 whIle she IS stIll not at the top and Paula Waddell, also an OM, who was promoted In 1999 or 2000 after Ms Zub but has already reached the maXImum, when Ms Zub has not. On behalf of the gnevor It was submItted that the Board had JunsdIctIOn to hear her gnevance because the Increases gIven to Ms Zub were arbItrary compared to other OM's In sImIlar cIrcumstances The gnevor's posItIOn IS that past practIce was to Implement credIt for actIng expenence, whether or not servIce had been Interrupted. Ms Zub said she earlIer trusted that the employer was fair and honest; but she now feels she was treated dIfferently and unfairly when compared to others It IS submItted that her gnevance IS Included In the categones set out In Scott et al and The CroYf, n in Riszht of Ontario (Ministrv of Transportation) P/OOO 1/96 (Lynk) where the Board held that the JunsdIctIOn of the PSGB over salary-related matters deals wIth complaInts anchored In one of the two folloWIng groups - the salary-related decIsIOn of the employer IS premIsed on dISCnmInatory or arbItrary conduct, or IS In bad faith, or 19 - the salary-related decIsIOn of the employer IS In vIOlatIOn of the govermng legIslatIOn, or a polIcy gUIdelIne, practIce etc that have the legal force of beIng part of the employment relatIOnshIp Employer counsel argued that the Scott test reqUIres some specIfic breach of polIcy as well and that Ms Zub had IndIcated none Further as to tImelIness, It IS the employer's posItIOn that thIS IS was not a contInuIng sItuatIOn because there was one fimte tIme penod after the promotIOn In 1998 that the gnevor should have gneved. The Board was urged to see thIS as the contInuIng effect of a decIsIOn at a partIcular pOInt In tIme rather than a contInuIng gnevance As to past practIce, counsel argued that there IS a hIgh threshold, the practIce has to be proven In order to be allowed as an aid to InterpretatIOn of some ambIguous language In a polIcy or collectIve agreement. Ms Zub's arguments and sItuatIOn are sufficIently sImIlar to those ofMs McKee, that It IS the Board's findIng that the matter should be set down for a heanng on the ments for the same reasons as In the case of Ms McKee Although Ms Zub dId not pOInt to the same polIcy provIsIOn, she does allege a pattern of practIce that she was entItled to have applIed to her In a non-arbItrary and non-dISCnmInatory fashIOn. As wIth Ms McKee whether or not the case wIll be made out at the end of the day wIll depend on whether she IS able to prove the eXIstence of a practIce or contInuIng oblIgatIOn whIch the employer should be held to have applIed to her If so the delay In gneVIng and ItS Impact may be dealt wIth at that tIme 20 Grievance of Rod Botham (P-2004-15281 Mr Rod Botham wrote to the Board on August 6 2004 IndIcatIng hIS wIsh to appeal hIS gnevance of Sept 15 2003 concermng a 5% Increase to the OperatIOnal Manager Salary Range MaxIma. In the Form lA filed wIth the Board on August 26 2004 he IndIcated that the persons affected by the gnevance were all operatIOnal managers not at maXImum salary on Apnl 1 2002, because they dId not receIve a 5% salary adJustment. The sectIOn of the same form whIch calls for all of the matenal facts on whIch the applIcant relIes, was filled In as follows All OM 16's are not beIng paid eqUItably In regards to the 5% awarded on Apnl 1 2002, to a certaIn group of OM's only In vIOlatIOn of the Pay on AssIgnment OperatIng PolIcy I e Purpose and PnncIples are not beIng applIed eqUItably In hIS remarks at the heanng, Mr Botham adopted the arguments made by the other gnevors, addIng that he had become aware of unequal treatment among the operatIng managers In the summer of 2004 when a number of OM 16's came to Maplehurst, where he works, from other InstItutIOns, and conversatIOn ensued about where vanous OM's were on the pay scale Mr Botham's remarks at the heanng dealt mostly not wIth the salary maXIma Issue raised In hIS applIcatIOn to the Board, but wIth hIS VIew that when he was promoted on December 17 2001 he should have receIved a further 3%, although he had receIved 3% when he started In hIS actIng assIgnment. He sees a dIfference between promotIOn and actIng assIgnments In the Pay on AssIgnment PolIcy whIch he asserts was not correctly applIed to hIm When he InqUIred at the tIme of hIS promotIOn, hIS managers told hIm there was no provIsIOn for a further 3%, whIch he asserted constItuted a breach of polIcy by omISSIOn, as he was then not paid eqUItably wIthIn hIS assIgned salary range 21 Employer counsel submItted that no one had ever before alleged what he IS claimIng, that he should get a 3% Increase when he first started as an actIng manager and then a further 3% when promoted to a permanent managenal posItIOn. It IS the employer's posItIOn that there IS no foundatIOn In fact or In the language of the polIcy to JustIfy the gnevor's claim It IS not necessary for the Board to rule on Mr Botham's remarks as to the addItIOnal 3%, as It IS not an Issue raised In hIS applIcatIOn to the Board. The gnevor' s claim at the heanng, as well as hIS comments concernIng thIngs he becamse aware of from other gnevors dunng the heanng for the first tIme, whIch he felt applIed to hIm, go far beyond the Issue raised In the gnevor's submIssIOn to the Board. SubsectIOns 34( 1) and (4) of RegulatIOn 977 under The Public Service Act provIde that a gnevance must set out the reasons for the person's complaInt about the workIng condItIOn or term of employment. Under s 36(1) of the same regulatIOn, the gnevor may then ask thIS Board for a heanng about that gnevance Although there IS room for elaboratIOn upon the gnevance at the heanng, and the Board attempts to aVOId undue techmcalIty the Board's JunsdIctIOn IS substantIally lImIted by what IS submItted to the employer and the Board as the gnevance Issue to be dealt wIth. Here, the subJect matter of what was submItted was a claim that a 5% Increase to the maXIma of the OperatIOnal Manager salary ranges was not awarded to those not at the maXImum of theIr range The facts set out In the submIssIOn to the Board, and at the heanng, are not sufficIent to allow that gnevance to be successful Although It IS true that the Pay on AssIgnment polIcy provIdes that employees should be paid eqUItably It refers to the fact that employees are assIgned to salary ranges, whIch generally ImplIes that employees at dIfferent levels of the range wIll be paid dIfferent amounts In a system based on progressIOn through salary ranges, It IS not enough to assert that It IS IneqUItable 22 for those not at the salary maXImum to have been demed the 5% Increase to the maXImum It would be necessary to show that there was some term or condItIOn of employment whIch arguably provIded that those not at the maXImum were nonetheless entItled to receIve the Increase authonzed for those at the maXImum As the facts and arguments before the Board do not go that dIstance, a prima facie case for the remedy claimed has not been made out. In the result, Mr Botham's gnevance IS hereby dIsmIssed and It IS therefor unnecessary to deal wIth the tImelIness aspect ofMr Botham's gnevance Grievance of the Group of six Anthonv Hill, William Horobetz, Loris Puntillo, LGyt,ton Callender, Makev Badal and Bruce Findlav (P-2004-3699 1 ThIS group of SIX OperatIOnal Managers filed a gnevance claimIng that theIr wages had not been maIntaIned at 3 % above the salary maXImum of theIr dIrect reports As they were all at the maXImum of the CorrectIOnal Officer 2 classIficatIOn, at the tIme of theIr promotIOn In June 2003 the 3% Increase they receIved put them exactly 3% above the maXImum of theIr dIrect reports at the tIme However wIth the ImplementatIOn of the CorrectIOnal Officer Increase on January 1 2004 the dIfferentIal was reduced to 5% They claim as remedy a 2 5% Increase to theIr wages, retroactIve to January 1 2004 as well as recalculatIOns of overtIme and other compensatIOn related to theIr base rate Further they request amendment of the Pay on AssIgnment 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 a 3% dIfferentIal At the bottom of page two of the Commeford letter the folloWIng appears 23 All InstItutIOnal managers confirmed as of July 31 2003 wIll be compensated 3% above the current CorrectIOnal Officer rate On page 3 of the Fuller memo the folloWIng statements appear 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 employer argues that the gnevance should be dIsmIssed as untImely because the gnevors waited almost a year to gneve after the 2004 bargaInIng umt Increase was In effect. Further counsel submItted that there IS a substantIal body of cases holdIng that the PSGB has no JunsdIctIOn over cases claimIng compreSSIOn pay Further It IS Said that no breach of polIcy has been made out, so the gnevances are InarbItrable 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 HavIng regard to the wordIng of the above documents, the Board IS of the VIew that thIS IS also arguably a contInuIng gnevance, as the statements above appear to apply forward from July 31 2003 Although the second sentence of the extract from the Fuller memo speaks of a reVIew on promotIOn to determIne whether the appropnate percentage dIfferentIal IS maIntaIned, It IS not ObVIOUS that the applIcatIOn of the provIsIOns IS lImIted to promotIOn. Although the documents above do not bear the tItle of polIcy they are employer generated statements of how operatIOnal managers wIll be paid, whIch raise an arguable case that they would amount to a term or condItIOn of employment thereafter Here the gnevors are allegIng that the memos referred to above amount to an applIcable term of theIr employment whIch 24 should be applIed to prevent the compreSSIOn that they have expenenced SInce January 2004 ThIS IS not a generalIzed request to cure compreSSIOn, or for the Board to set a compreSSIOn dIfferentIal Itself, both thIngs that would be beyond the JunsdIctIOn of the Board. The fact that the employer dIsputes the status of the memo and letter as enforceable polIcy as well as the meamng of theIr terms, IndIcates that there IS a dIspute over what the terms of the gnevors' employment are as to compreSSIOn, somethIng that IS WIthIn the Board's JunsdIctIOn to determIne In the cIrcumstances, It IS the Board's findIng that the matter may proceed to a heanng on the Issue of 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 If they were to be successful, the questIOn of whether they were entItled to compensatIOn retroactIve to January 1 2004 as they claim, would be consIdered In lIght of the arguments at the end of the day and the date of theIr gnevance However the addItIOnal remedIal request for an amendment to the Pay on AssIgnment polIcy IS beyond the JunsdIctIOn of the Board, as It IS a request for the Board to amend a term or condItIOn of employment, rather than enforce It. Grievances of Reszan Harris Mr Harns dId not appear at the heanng on November 2, despIte havIng been gIven notIce Employer counsel asks me to dIsmIss the gnevances as there was no IndIcatIOn that he wIshed to pursue hIS gnevances Rule 6 of the PublIc ServIce Gnevance Board's Rules & PractIce Notes provIdes Where any person properly served wIth a notIce of heanng falls to attend the scheduled heanng, the Board may proceed to dIspose of the gnevance In that person's absence and wIthout further notIce 25 In thIS case, It IS clear that Mr Harns receIved notIce of the heanng, as he sent an e-maIl to the Board on November 1 statIng that he would not be In attendance at the heanng. No reason was gIven, no request for an adJournment was made In the cIrcumstances, the Board has proceeded to deal wIth the two gnevances filed by Mr Harns P-2003-1479 The first ofMr Harns' gnevances IS dated March 15 2003 In file # P-2003-1479 It deals wIth the Issue of compreSSIOn between operatIOnal managers, correctIOnal officers and actIng operatIOnal managers, partIcularly the "concept of classIfied managers reCeIVIng sIgmficantly less compensatIOn than IndIVIduals' ActIng' as managers" However there IS no IdentIficatIOn of any polIcy on compreSSIOn, or any other IdentIfied or alleged term or condItIOn of employment that has been breached. The gnevor refers to the general concept of "equal pay for equal work" but does not explaIn how that has been breached, In a sItuatIOn WIth salary ranges and classes, as well as vanous reasons why people In the same classIficatIOn may be makIng dIfferent amounts of money at dIfferent tImes, dependIng on many factors such as length of servIce, ShIfts worked or overtIme As worded, the gnevance does not demonstrate an arguable basIs In law for the gnevance to succeed. It generally refers to the problem of compreSSIOn, but does not IndIcate any basIs for a specIfic breach of a polIcy or other term or condItIOn of employment such as a document settIng a defined percentage dIfferentIal at a gIven tIme between a specIfic managenal class and some other occupatIOnal category AccordIngly thIS gnevance IS hereby dIsmIssed. 26 P-2004-1720 Mr Harns' second gnevance deals wIth the same Issue as that dealt wIth concermng the McKee gnevance above, askIng for consIderatIOn for more than 3% on promotIOn based on hIS claimIng an opportumty to artIculate hIS "better-than-average" prevIOus expenence and qualIficatIOns For the same reasons as above, thIS gnevance IS also dIsmIssed. Grievance of Joel Gardiner (P-2004-19941 Mr Joel GardIner dId not appear eIther and dId not ask for an adJournment. The Board has no IndIcatIOn of any problem wIth servIce The employer sImIlarly asks for the dIsmIssal of hIS gnevance Rule 2 of the PublIc ServIce Gnevance Board's Rules & PractIce Notes provIdes Where the Board consIders that a gnevance does not make out a case for the orders or remedIes requested, even If all the facts stated In the gnevance are assumed to be true the Board may dIsmIss the gnevance wIthout a heanng or consultatIOn. In ItS decIsIOn the Board wIll set out ItS reasons Mr GardIner's gnevance appears to be IdentIcal to Mr Harns' gnevance P2004-1720 and the portIOn ofMs McKee's gnevance dealIng wIth the same subJect. Although I have assumed the facts stated In Mr GardIner's applIcatIOn to be true, Mr GardIner's gnevance IS dIsmIssed under Rule 2 for the same reasons as for Mr Harns' and Ms McKee's gnevances set out above *** To summanze, for the reasons set out above, the portIOn of the gnevance ofMs McKee [P- 2004-2380], as well as the gnevances ofMr Harns [P-2004-1720] and Mr GardIner [P-2004- 1994] whIch relate to a theIr claims to an entItlement to a revIew of expenence and qualIficatIOn 27 In order to receIve a "better than average" promotIOnal Increase are dIsmIssed, as IS the gnevance ofMr Botham [P-2004-1528] relatIng to the 5% Increase to the salary maXIma. The portIOn of Ms McKee's gnevance [P-2004-2380] related to breaks In servIce, as well as the gnevances of Ms Zub [P-2004-0837], Mr Drakos [P-2004-1721], and the group of SIX, Messrs Hill, Horobetz, PuntIllo Callender Badal and FIndlay [P-2004-3699] may proceed to a heanng on the ments For the heanngs on the ments, consIderatIOn may be gIven to the schedulIng of the Zub [P-2004-0837]and McKee [P-2004-2380] matters together as they both deal wIth breaks In servIce as actIng managers, and to schedulIng the Drakos [P-2004-1721] and group gnevance of Messrs Hill, Horobetz, PuntIllo Callender Badal and FIndlay [P-2004-3699] If the partIes foresee common eVIdence and argument as to compreSSIOn Issues However there appears to be no dIscernIble advantage In schedulIng all the remaInIng gnevances together If the partIes have VIews as to the desIrabIlIty or practIcalIty of schedulIng any of the gnevances together they are InvIted to make them known to the RegIstrar's office when dates are offered. Dated at Toronto thIS 22nd day of December 2005