HomeMy WebLinkAboutP-2003-1670.Garratt et al.05-05-17 Decision
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P-2003-1670
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Garratt et al Grievor
- and -
The Crown In RIght of Ontano
(Mimstry of Health and Long-Term Care) Employer
BEFORE Kathleen O'NeIl Vice-Chair
FOR THE GRIEVORS Tim Garratt, WillIam Cote, Rick Dusome
FOR THE EMPLOYER Yasmeena Mohamed
Semonr counsel
Management Board Secretanat
HEARING February 7 2005
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DeCISIon
This decision deals with the employer's preliminary objection to the jurisdiction of the Public
Service Grievance Board (referred to below as the PSGB or "the Board") to hear the merits of a
grievance filed by a group of nurse managers from the Oak Ridge Forensic Division of the
Penetanguishene Mental Health Centre The grievance complains of salary and benefit
disparities that have developed between their PM 14 classification and the Registered Nurses
(R N 's) who report to them, as well as the lack of a promised salary review of their occupational
category
The written statement of Grievance, dated March 14, 2003, reads as follows
We the undersigned, grieve the salary and benefit disparities that have
developed between the Oak Ridge PM14 Program/Shift Nurse Managers, and
the Registered Nurses at Oak Ridge The facts, as presented, clearly reflect that
we have seen a significant change in the compression ratio and benefit package
between bargaining unit Registered Nurses and the PM14 Classification at Oak
Ridge
There have been several factors, which contributed to this
1) Bargaining unit R N 's were awarded an additional 10% wage increase
effective January 1, 2002
2) In the previous OPSEU contract settlement of 1999, R N 's at Oak Ridge
were awarded a Salary Note (G24) in recognition of the risk factors related to
their job This increased their merit levels from 7 to 9 categories and resulted
in a rate increase in their salaries of approximately 6%
3) The enhanced benefit package negotiated by OPSEU in 2002, which
provides greater benefits
4) The fact that the pension plans are not of equal value to individual members
The OPTrust pension plan has a significantly greater dollar value, reduction
in pension contributions, and continuation of the Pension Factor 80
We have not come forth with our concerns previously because we had been
assured our issues would be addressed once a thorough review of our category
had been completed We believe no MBS group has examined our concerns
When we addressed these issues with our HR representative, he informed us
there must be a compression ratio of less than 5% in order to have a valid
grievance We drop well below this figure at varying intervals throughout the
term of the contract.
Therefore, we the PM 14 Managers at Oak Ridge seek the following settlement:
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1 A review of our wages with consideration to reducing the impact of items 1
and 2 above This would address the compression issue that resulted on
January 1, 2002 which saw a pre-contract compression ratio of 15 71 %
reduced to 3 07% Full retroactivity to this date should be applied with
interest.
2 Implementation of benefits that are fair and equitable to all managers, and in
line with the benefits that are currently being subsidized by this employer for
members of the OPS
3 Reintroduction of Factor 80 for all managers
4 A reduction of penalties and enhancement of pension benefits equal to
OPTrust.
5 The development of a mechanism which provides for a fair and equitable
means to assess and communicate manager wages and benefits
In a subsequent statement dated Oct. 7, 2003, addressed to the Board's registrar, the grievors
maintained that the manner of setting their wages violates the employer's salary policies, and is
a breach of an implied contract with them when they accepted the role of manager
The group grieved because their attempts to have their compensation issues addressed by less
formal means have not been successful They believe their position has been devalued at the
same time as there has been an enormous increase in responsibility for the nurse managers
The grievors also have many questions as to how their terms and conditions of employment are
arrived at, and why certain options for benefits, which were made available to other groups,
such as the OPP, were not made available to the nurse managers Further, they want
information as to who is responsible for options under the pension plan
The employer objects to the hearing of this matter on the basis that the grievance is basically a
classification grievance, over which the PSGB has no jurisdiction, as set out in s 31 (4) of
Regulation 977, as follows
31 (4) No grievance 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 denied to an
employee as a result of an evaluation of his or her performance
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Management counsel maintains that the essence of the grievance is the idea that the salary
currently paid to these nurse managers does not reflect their level of responsibility Since
evaluating and classifying positions is the role of the Civil Service Commission, rather than the
PSGB, the Board is urged to decline jurisdiction Counsel refers to s 4 (a) of The Public
Service Act, which provides the duties of the Civil Service Commission as follows
4 The Commission shall,
(a) evaluate and classify each position in the classifed service and determine the
qualifications threfor;
b) recommend to the Lieutenant Governor in Council the salary range for each
classification, except a previously established classification for which a salary
range is determined through collecive bagaining
Further, employer counsel underlines that, in the absence of an allegation of a breach of any of
their terms or conditions of employment, the grievors' desire for information about how their
salaries and benefits are set is no reason to assume jurisdiction Since the Board has no
power to sit as an interest arbitrator, i e to set the terms and conditions of employment, the
grievance should be dismissed, in the employer's submission
The grievors believe that the grievance should not be dismissed, underlining that they are not
seeking a reclassification, or the same increases as the bargaining unit. Rather, they maintain
that the current practice of setting their wages violates the employer's own established
principles, citing a Ministry Directive dated January 1991, entitled Salarv Rates/Ranaes
Directive, a document filed by the employer The grievors cite the following portions of that
document as having been breached
- Pay administration will be consistent with approved compensation practices
and recognize the manager's responsibility to manage
- Pay administration will contribute to the attraction and retention of competent
employees
Further, the grievors maintain that there is a mandatory cyclical review of positions that did not
take place for their positions, which is referred to under the heading "Mandatory Requirements"
in the same document.
The grievors presented a comparison of the maxima of the PM14 and R N wage scales since
1983, to demonstrate that the past practice has been to maintain a compression ratio (the
percentage difference between the maximum pay level for the PM 14 managerial classification
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and that of the bargaining unit R N 's) that did not drop below 11 % at anytime during the past 18
years Although the managers are not asking for a matching settlement to that of the bargaining
unit, they are asking for a maintenance of the practice of ensuring a significant percentage
differential between PM 14's and those they manage, which most recently ceased in March,
2004 They contend that the practice in setting managerial wages, benefits and pension has
been well established, and is based on the principles laid out above They wish the
compression issues to be resolved as they have been in the past. They argue that when they
assumed the additional responsibility and leadership roles as managers, they were entering into
an implied contract that had certain defined differences as to pay, benefit and pension
entitlements commensurate with the increased level of responsibility Noting that there have
already been instances of people returning to the bargaining unit because of the situation with
the compensation package for managers, the grievors express the fear that highly qualified
people will not take on, or continue to accept, the challenge of management positions in the
difficult milieu of an institution serving the criminally insane
Further, in response to a document filed by the employer "Management Compensation an
Overview", the grievors note that they are not privy to any of the exercises outlined in that
document, and they have no way to know if the process is applied in a reasonable manner
They believe that their compensation has been set in an arbitrary way, and is indicative of bad
faith in that their position has not been looked at individually, to see what working with the
criminally insane really involves They see their treatment as an abuse of power by their
employer
The grievors also submitted that that the grievance can be addressed under section 29(1)(b), (f)
and (g) of the Public Service Act which provides as follows
29 (1) The Commission, subject to the approval of the Lieutenant Governor in
Council, may make regulations,
(b) prescribing classifications for positions, including qualifications,
duties and salaries, except salaries for previously established classifications
for which salaries are determined through collective bargaining,
(f) determining employee benefits,
(g) providing for the establishment of plans for group life insurance,
medical-surgical insurance or long-term income protection insurance,
(i) defining overtime work and providing for compensation therefor;
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U) Providing for and prescribing payments on death,
29.2The Lieutenant Governor in Council may make regulations,
(a) defining "gross mismanagement", "gross waste of money", "abuse of
authority", "imminent grave health or safety hazard" and "imminent grave
environmental hazard" for the purposes of Part IV,
(b) providing for the establishment and administration of the public file
under Part IV,
(c) respecting access of the public to records placed in the public file,
(d) prescribing the circumstances under which the Counsel is required to
or may provide copies of records placed in the public file,
(e) authorizing the Counsel to charge fees for copies of records placed
in the public file and prescribing those fees 1993, c 38, s 63 (11)
***
The starting point for the determination of jurisdiction is s 34(1) and (4) which set out the
basic provisions for the grievances over which the PSGB has jurisdiction as follows
34 (1) A person described in subsection (2) who is aggrieved about a
working condition or term of his or her employment may file a grievance with his
or her deputy within 14 days after becoming aware of the working condition or
term of employment giving rise to the grievance o Reg 168/96, s 6 (1)
(4) The grievance must set out the reasons for the person's complaint
about the working condition or term of employment. 0 Reg 168/96, s 6 (1)
Although the words "working conditions or term of employment" are to be given a broad and
liberal interpretation (Kanaa P/0003/85), that does not give the PSGB the authority to set the
terms and conditions of managers' employment, or to give opinions as to whether they are
fair, either in some absolute sense, or as compared to bargaining unit employees Cases
involving salary complaints that have been heard on the merits have had aspects beyond
requests to remedy compression or classification, which are seen as requests that the
PSGB, rather than the Civil Service Commission, set the terms and conditions of
employment as to compensation In this respect, the Board's jurisdiction clearly extends to
allegations that calculation of compensation is incorrect (Amirault P/0028/94) and to issues of
misapplication of the established terms of employment in relation to salary and other forms of
compensation Although the PSGB has no authority to set payor compensation, it can and
does decide disputes over what these conditions are, and determine whether or not they
have been correctly applied
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Employer counsel filed a brief of decisions of the PSGB over the years related to the recurring
problem of compression between managerial and bargaining unit compensation and related
issues For their part, the grievors claim that their grievance is unique, and that none of the case
law covers the situation Although there is no grievance identical to the one under consideration
in the material filed by the employer, the Board's case law has dealt with similar problems, and
the cases collected there deal with several well-established themes, as discussed below
Despite sympathy for the plight of managers dealing with frustration over their level of pay
and eroded pay differentials, the PSGB has consistently declined to entertain grievances
where the Board is being asked to review the level of compensation or classification, as it is
the exclusive function of the Civil Service Commission to set levels of compensation The
grounds for declining to hear such grievances have been articulated as "no authority to
increase or decrease the wages" (Davies P921/83 (Black)), a lack of jurisdiction over the
adequacy of the management compensation plan, or a lack of authority to "rectify salary
relationships that may have gone awry with the passage of time," or to enforce the
maintenance of a certain differential between management and bargaining unit pay (Smallev
P/0013/85 (Emrich)), no legal right to claim any other salary than that which was set for their
classification by the [Civil Service] commission (Coons, et. al P0013/87 (Brent), "no
jurisdiction to deal with supervisory salary compression disputes" Herbrand P/0014/94
(Walter) In Marrison et. al P/0004/88 Emrich) the fact that the grievors framed their claim by
saying that a failure to correct the perennial problem of salary compression constituted
arbitrary, discriminatory, bad faith conduct, did not lead the Board to take jurisdiction over the
rectification of a salary relationship Rather, in a remark that has the air of a finding of lack of
a prima facie case, the Board said that the grievors had not met the onus upon them to
establish discriminatory, bad faith or arbitrary conduct on the part of the employer
By contrast, the Board assumed jurisdiction in Bertolo and Tiahe P/0008/95 and P/0009/95
(Leighton) addressing a claim that as a result of a reorganization, the grievors' terms and
conditions of employment were not being properly applied to them, in that they were being
required to work more hours for less money, and should have been red-circled when they
were reclassified The Board heard the grievance on the basis of an agreed statement of
fact, but dismissed it, finding there was no evidence of a breach of the Public Service Act, the
regulations, a management policy directive, past practice or any evidence that the grievors
had been treated inequitably, nor evidence of bad faith, discrimination or arbitrariness
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In Scott et al P/0001/96 (Lynk) a grievance against salary disparities was based on the
assertion that the disparities violated the employer policies that employees should be paid
commensurate with their skills, competence and experience as well as its policy on
credentialism, and past practice The Board dealt with an employer objection to the effect
that the PSGB lacked jurisdiction over salary dispures, reviewing earlier jurisprudence on the
extent to which the PSGB has jurisdiction over grievances with a salary element. The Board
summarized its views as follows at pp 20 and 21
An employee within the coverage of the Act may only challenge the decisions of
the employer on salary-related matters if she or he is able to anchor the
complaint on at least one of the following two grounds
(i) the salary-related decision of the employer is premised on discriminatory or
arbitrary conduct, or is in bad faith, or
(ii) the salary-related decision of the employee is in violation of the governing
legislation, or a policy, guideline, practice, etc that would have the legal force of
being part of the employment relationship
In that case, the Board dealt with several employer objections with a variety of results, but took
jurisdiction in a preliminary decision dated May 17, 1997, as the grievance alleged that the
employer had breached certain policies as to salary The grievance was dismissed on its
merits, in a decision dated July 7, 1998 as the Board found that the salary discrepancies did not
violate the credential ism policy, and that the Cyclical Salary Review Program Policy published in
the 1976 Ontario Manual of Administration provided that periodic changes in pay settlements for
one particular occupation group would not be automatically granted to other occupational
groups to maintain customary relationships between pay
In Group Manaaers. Ministrv of Finance P/0020/99 (Willes), which involved a situation where
the AM20 Group managers had their duties reorganized and some new AM 21 positions were
created as a response to a salary compression problem, the Board reserved on the employer's
objection to jurisdiction until after the evidence was heard The grievors alleged, among other
things, that their terms and conditions of employment had been changed to an extent which
constituted demotion or constructive dismissal The grievances were dismissed, and jurisdiction
declined, because, although the Board found that the evidence pointed to a poor administrative
decision, there was no clear evidence of discrimination, arbitrariness, bad faith or a breach of
the Act or the regulations
In Gleason P/0040/92 (Leighton) the Board dealt with a complaint about an inversion situation,
i e a manager made less than the person he was supervising The grievor argued that there
9
was an employer policy against inversion while the employer argued the Board had no
jurisdiction to cure inversion The Board found that in cases where there has been an allegation
that there has been a breach of a working condition or term of employment such as the policy
against inversion, the Board would adjudicate Nonetheless, the Board held that salary
compression itself - no matter how it occurs - would not be arbitrable if there was no allegation
of bad faith, discrimination, arbitrariness, breach of the Act, the regulations, a policy or past
practice (See also McConnell et al P/0051/93 et, al (Leighton), to similar effect.) As is often the
case, one of the factual disputes was whether there was an applicable policy which had the
status of a term or condition of employment. The Board found that whether or not the grievor
would be successful in establishing either the policy or the breach was a question for the merits,
not one to be decided before hearing the evidence
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, a bargaining unit would
amount to setting terms and conditions of employment for the managers, which is not the
function of the Board Cases in this general category include Johnson and Smith P/0001/99,
P/0005/99 (Agarwal) concerning how employees on a compressed work week are to be
credited for a regular day off which falls on a statutory holiday, in which the Board found no
entitlement to what the bargaining unit had received, Fernandes P/0185/96 (Leighton) a
claim that a manager was underclassified which was dismissed as essentially a classification
grievance, based on what OPSEU had received, Johnson P/0038/99 (Agarwal) a claim for a
revised shift premium as given to bargaining unit employees, which was dismissed because
no reasons were put forward to distinguish it from other similar cases, Easto P/0025/99
(Agarwal), a claim for increases in pay, shift premium and an incentive rate as given to
bargaining unit employees, which was based on past practice of extending to operational
managers increases accruing to bargaining unit members See also, to similar effect,
Group Grievance. Newman et. a/. P/0003 to 0010/98 (Leighton), Armstrona (Agarwal)
P/0024/99, and Group Grievance P/0006/01 (Leighton)
In summary, the Board's jurisprudence has generally interpreted its jurisdiction in regards to
managerial compensation, in line with applicable statutory provisions, and the structure of the
public service, to be limited to remedying breaches of established terms or conditions of
employment, or treatment which is arbitrary, discriminatory or in bad faith in regards to the
application of those terms and conditions of employment. It has not taken jurisdiction over
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requests that the Board remedy compression ratios or other compensation disparities, in the
absence of an allegation of a breach of an identified policy or term of employment which would
prevent such compression
Returning to the grievance before me, the grievors are looking for a remedy from the PSGB
concerning their discontent with their compensation package They are looking for both
procedural remedies, i e a review of their compensation package, and an ongoing mechanism
for assessing and communicating managerial wages and benefits, as well as specific changes
to their compensation plan, such as the return of the Factor 80 as part of their pension plan, and
improvements to their benefits As well, the grievors claim that the employer's behaviour
towards the managers in regards to their compensation breaches certain compensation policies
and an implied contract with the managers, as well as being arbitrary, abusive and in bad faith
The grievors were clear that they were not asking to have their jobs reclassified, but the
employer nonethless submitted that the grievance should be considered a classification
grievance because of the remedies requested, which amounted to assertions that the
position was under-valued To the extent that the grievance is asking that the PSGB set the
salary rates or maxima, or determine what pension or other benefits should be available to
managers, the Board agrees that is not within the jurisdiction of the PSGB The PSGB has
no authority to set wages or compensation
However, to the extent that the grievance alleges the breach of already established terms or
conditions of employment in regards to compensation, the grievance can go forward In this
regard, the portion of the grievance that claims that the employer has not done a promised
review of their category, or applied an established policy as to cyclical reviews to their
classification, is something clearly within the jurisdiction of the Board The Board has the
jurisdiction to determine whether there is a policy or promise that has the status of a term or
condition of employment to the effect that the grievors should have had their salary reviewed
in a certain manner before now, and have not. However, it is fair to underline that even if the
Board finds that there is such a policy applicable to the grievors, the Board does not have the
jurisdiction to conduct a salary review, or to set salary or other forms of compensation
As noted, the grievors argued that the employer had breached the policy that the managerial
compensation plan should recognize the manager's responsibility to manage and contribute
to the attraction and retention of competent employees However, the facts referred to in this
portion of the argument went back to the idea that the nurse managers were not being paid
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enough of a differential as compared to the bargaining unit positions In contrast to the
situation in Gleason and McConnell, et aI., cited above, this was not linked to an allegation
that there was an applicable policy as to a specific ratio between the positions that had been
breached or not properly applied to the grievors Rather, it was said more generally that
there was an implied contract that there be certain defined differences as to pay
commensurate with the increased level of responsibility However, the grievors have not
identified a specific existing term or condition of employment as to the comparison between
their classification and that of the bargaining unit that they say has been breached In these
circumstances, the Board is not persuaded that it is appropriate to entertain this portion of the
grievance, as it is essentially an invitation to the Board to determine the appropriate
differential between the grievors' classification and the bargaining unit, which would be
beyond the Board's jurisdiction
The Board has also considered the grievors' argument concerning s 29 of The Public
Service Act. The grievors' case is not advanced by these provisions, they provide discretion
to the Public Service Commission and the Lieutenant Governor in Council to provide for
certain things, but the grievors did not refer to any provision in this regard that had been
breached
There remain the allegations of arbitrariness, abuse of power and bad faith From the
remarks made at the hearing, the nub of the problem is the perceived lack of transparency
and disclosure as to the mechanism and rationale for the establishment of managerial
compensation In the absence of knowledge of what is transpiring about pay and
compensation issues, the grievors are left wondering if there has been bad faith or not.
These concerns appear inseparable from the portion of the grievance which asks for the
development of a mechanism which provides for a fair and equitable means to assess and
communicate managerial wages and benefits Although the Board can readily understand
the grievors' desire to have a more transparent process, this latter element appears to be
limited to dissatisfaction with the current method of setting and communicating wages,
leading to a request that the Board establish a new process for setting and communicating
wages This portion of the grievance is beyond the jurisdiction of the Board as it is seeking
the establishment of new terms and conditions of employment, rather than the enforcement
of existing ones If the allegation were that there already was a term or condition of
employment providing a process for setting and communicating wages that had not been
applied to the grievors, or had been applied in bad faith, that would be another matter
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For the reasons set out above, the grievance may proceed to a hearing on the merits on the
issue of whether the grievors have been denied a salary review to which they are entitled as
a term or condition of employment, and whether they have been treated arbitrarily, abusively
or in bad faith in this regard In all other respects, the grievance is beyond the jurisdiction of
the Board
Dated at Toronto this 17th day of May, 200S