HomeMy WebLinkAboutP-2003-1670.Tim Garratt et al.05-12-07 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-2003-1670
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Tim Garratt et al Grievor
- and -
The Crown In RIght of Ontano
(Mimstry of Health and Long-Term Care) Employer
BEFORE Kathleen G O'NeIl Vice-Chair
FOR THE GRIEVOR Tim Garratt, WillIam Cote, Rick Dusome
FOR THE EMPLOYER Yasmeena Mohamed
Semor Counsel
Mimstry of Government ServIces
HEARING October 28 2005
2
DeCISIon
ThIS deCISIOn deals WIth the Issue of whether the gnevors have been demed a salan reVIew to whIch the,
are entItled as a term or condItIOn of employment, and whether the, have been treated arbItranh
abusIveh or m bad faith m thIS regard. The ongmal gnevance filed b, a group of nurse managers from
the Oak RIdge ForenSIC DIVIsIOn of the Penetangmshene Mental Health Centre complams of wIder Issues
as well, such as salan and benefit dIspantIes, mcludmg compreSSIOn Issues, that have developed between
theIr PM 14 classIficatIOn and the RegIstered Nurses (R.N s) who report to them The employer made a
prehmman ObjectIOn to the JunsdIctIOn of the Pubhc ServIce Gnevance Board (referred to below as the
PSGB or 'the Board ') to hear the ments OfthIS gnevance whIch was dealt wIth b, a prevIOus decIsIOn
dated Ma, 17 2005 m whIch It was found that the Board had JunsdIctIOn to the extent necessan to hear
the Issue concernmg the salan reVIew
The gnevors base theIr case on a readmg of a number of employer documents relatmg to salan
admmIstratIOn. The most general of these IS a document put out b, the CompensatIOn ServIces Branch of
Management Board Secretanat (referred to below sometImes as MBS) dated Januan 1991 entItled
'Salan Rates/Ranges DIrectIve Its stated ObjectIve IS
To specd\ the authontIes and responsibihtIes for the determmatIOn and admmIstratIOn of
salan rates/ranges for estabhshed Job classes m the Ontano Pubhc ServIce
It apphes broadh to classIfied employees m all mmIstnes except those m the Semor Management Group
and Deput, Mimsters CompensatIOn Plan, and thus mcludes the gnevors classIficatIOn as well as
classIfied employees m bargammg umts The gnevors refer to a number of provIsIOns of the document as
part of the basIs for theIr entItlement to a salan reVIew For mstance under the headmg PnncIples It
says
Pa, admmIstratIOn wIll be consIstent WIth approved compensatIOn practIces and
recogmze the managers responsibIhn to manage
Pa, admmIstratIOn wIll contribute to the attractIOn and retentIOn of competent employees
Further under the headmg 'Mandaton Reqmrements the document reads as follows (m most relevant
part)
All salan rates and ranges must be approved b, the LIeutenant Governor m CouncIl,
subject to recommendatIOn b, the CIvIl ServIce CommISSIOn/Management Board
Secretanat for the management and excluded classes [PSA, sectIOns on DutIes of
CommISSIOn and ImplementatIOn of CollectIve Agreements CECBA, sectIOn on
Bargammg Umts Estabhshed as aIUended b, BIll 7 s 7(1)]
3
Entitlement to revIsed salary rates as a result of cychcal reVIew of class salary
ranges or of ImplementatIOn of new and revIsed classes must be m accordance WIth the
appropnate
- salan agreement for employees WIth approved bargammg agents
- mstructIOns covenng ImplementatIOn,
- specIfic proVIsIOn covenng employees on maternIt, or adoptIOn (Parental leave [see
PS'A, Reg 977/95 sectIOns on Pregnanc, and Parental Leaves, OPSEU CollectIve
Agreement, ArtIcles on Pregnanc, Leave for Full tIme CIvil Servants and Regular Part
Time employees m the CollectIve Agreement; PEGO CollectIve Agreement, ArtIcle on
Pregnanc, and Parental Leaves]
- SpecIfic proVIsIOns covenng salan protectIOn [see PSA, Reg 977/95 sectIOns on
ReclasSIficatIOn, OPSEU CollectIve Agreement, ArtIcles on Pa, AdmmIstratIOn, PEGO
CollectIve Agreement, ArtIcle on Pa, AdmmIstratIOn and DIsplacement; AMAPCEO
Memorandum of Agreement, ArtIcle on DIrect ASSIgnment mto Permanent VacancIes"
and ImplementatIOn of new or reVIsed class standards (see Pavon Assignment DIrectIve)
]
The gnevors read the wordmg entItlement to reVIsed salan rates as a result of cychcal reVIew of class
salan ranges set out m boldface above as mdIcatmg that the, are entItled to a cychcal reVIew of theIr
class salan range The, note that the document also states that the Management Board Secretanat IS
responsible for recommendmg salan rates, ranges and other entItlements for management and excluded
classes
The gnevors read the above document together WIth one entItled 'Human Resources Management
DIrectIve dated Februan 24 1999 from the Staffing and Development Branch ofMBS whIch states
that:
HR management strategIes, pohces and practIces wIll.
- reflect each pubhc servant s nght to equal treatment and to work free from
dIscnmmatIOn and harassment m a safe and health, workplace
- encourage constructIve relatIOnshIps WIth bargammg agents
- embod, the values of honest, mtegnt, fairness and dIversIn
- place pubhc mterest above mdIvIdual mterest
- reward mnovatIOn and the exerCIse of good Judgment, and
- support accountabIht, for achIevmg busmess results and fiscal prudence
The gnevors submIt that It IS not reasonable to expect a speCIfic class of employees, such as theIr own,
where problems have been IdentIfied, to not get speCIfic attentIOn when the, are entItled to equal
4
treatment. In terms of constructIve relatIOnshIps, the gnevors beheve the, should be entItled to some kmd
of dIscussIOn about what happens to them m terms of the IdentIfied salan problems, so that the process
would embod, the values ofhonesn mtegnn fairness and dIversIt,
More specIficalh the gnevors referred to a memo dated Ma, 172002 from Jane Corbet, then DIrector of
the HR StrategIes branch for Management Board Secretanat. In that memo she mdIcated that as a result
of recent salan adJustments to numerous OPSEU classIficatIOns, the, would be revIewmg
supervIsor/subordmate reports to determme the extent of compreSSIOn and mverSIOn whIch mIght have
resulted.] She also asked Human Resources DIrectors to provIde mformatIOn concernmg class
relatIOnshIps whIch would be adverseh affected as a result of the OPSEU adJustments Further the
memo noted that the plan was to proceed to Management Board of Cabmet m late June for approval of
MCP and Excluded salan reVISIOns, and thus the mput was requested no later than Ma, 27 2002 In
response to thIS memo an e-maIl dated Ma, 29 2002 was sent from MehdI KanJI to Bonme Baker of
MBS hIghhghtmg a number of compreSSIOn and mverSIOn problems, mcludmg several mvolvmg nurses at
Oak RIdge some of them IdentIfied as severe The gnevors were concerned that It was two days late and
concluded that the matter had gone to cab met WIthout the mformatIOn about the nursmg Issues
A second memo from Jane Corbet, dated Juh 5 2002, announced the reVISIOns approved for MCP
classes, mcludmg the gnevors classIficatIOn ofPNR 14 Smce the level of the mcreases dId not fix the
mverSIOn and compreSSIOn problems, the gnevors concern that the mformatIOn provIded b, Mr KanJI
was not taken mto account was strengthened. The gnevors find It mconsIstent WIth the above-noted
pohcIes Ifmemos such as Mr KanJI s are not taken senoush and responded to m a reasonable manner
The gnevors asserted that the part of the human resources role as defined m the 'Human Resources
Management DIrectIve whIch was to address the Issues of pa, and benefits had thus not been carned
out. As to the sectIOn of the same document entItled 'Human Resources StrategIes defined as pubhc
servIce ImtIatIves mtended to build and revItahze workforce capacIt, mcrease orgamzatIOnal flexibiht,
and Improve the workplace enVIronment the gnevors contend that If the, are Just lumped mto a class
categon the strategIes are not workmg as the, should. Even If staff evaluate pOSItIOns contmualh the
product of thIS process IS flawed, m the gnevors VIew
SImIlarh the gnevors submItted that even when the government addresses wage compreSSIOn Issues,
the, do not do so sufficIenth For mstance Mr Cote one of the gnevors, IS a PM14 but dId not get
compressIOn pa, because he dId not have the dIrect reports reqUIred, smce he IS seconded to a software
] In thIS deCISIOn, the term compreSSIOn refers to a narrowmg of the percentage dIfference m salan
between managers and those who report dIrecth to them to a level perceIved as too low InversIOn refers
to the SItuatIOn where the subordmate actualh earns more than the manager
5
schedulmg prograIU whIch deals wIth the entIre facIht, It IS hIS VIew that smce he IS deahng WIth
managers, hIS pa, should be hIgher He acknowledged m cross-exammatIOn that other managers receIved
compressIOn top-ups m December 2003 At the tIme he complamed of the fact that he dId not get It, as
he thought the compreSSIOn pa, should have taken mto account the level of responsibIht, he had m
managmg the software schedulmg prograIU, but dId not file a gnevance Rather than gneve he thought
managers should be able to talk to Human Resources employees and come to some resolutIOn.
Another of the gnevors, Mr Garratt, stated that the gnevors feel that the employer s treatment of them
WIth regards to salan IS arbItran aIUountmg to an abuse of power He referred to a memo dated June 5
1991 whIch announced fundmg to address salan compreSSIOn Issues b, wa, of restonng a 5% dIfferentIal
to compressed supervIsor/subordmate salan relatIOnshIps Withm the memo It IS clearh IdentIfied as an
mtenm solutIOn to an ongomg problem, for whIch approval was onh for the fiscal year 1991/92 Further
It states that while It IS the mtentIOn of the Secretanat to recommend contmuatIOn on a year-to-year baSIS,
pendmg development of a better means to address thIS problem, there IS no certamn as to ItS extenSIOn.
The gnevors submIt that all these years later the problem has never been proper!, addressed, makmg It
clear to them that theIr salanes have never gone through the cychcal reVIew Imphed m the above
documents
The employer s WItness, RIsa Caplan, has held vanous progressIveh responsible pOSItIOns relatmg to
compensatIOn and Human Resources smce she Jomed the Ontano Pubhc ServIce m 1988 These mclude
the pOSItIOn of corporate compensatIOn specIahst, m whIch role she gave adVIce to semor management
and mmIstnes concernmg compensatIOn Issues, mcludmg reVIsIOns to management compensatIOn. She IS
ven faIUIhar WIth the process mvolved m the settmg of managenal compensatIOn, and described how It
operates, mcludmg the development of proposals b, Human Resources staff for approval b, the CIvIl
ServIce CommIssIOn and Management Board of Cabmet, and then the ImplementatIOn of whatever
reVISIOns are proper!, authonzed. In answer to the Issues raised m the gnevor s testImon, Ms Caplan s
eVIdence estabhshed that there IS no set cychcal reVIew for managenal salanes or pohc, relatmg to a
regular reVIew The salan cycle onh means the hfe of the Order-m-CouncIl provIdmg for the terms of
salan for an, partIcular penod of tIme The length of the cycle has vaned greath from one year m the
1980 s to 6 years dunng the penod of the SOCial Contract legIslatIOn to 3 years m more recent years
EssentIalh the determmatIOn ofthe length of the penod comes from the pohtIcallevel of government,
although WIth mput from Human Resources staff ObVIOush pnontIes ma, van accordmg to the
pohcIes of the government of the da,
Ms Caplan was closeh mvolved m the salan reVISIOns m 2002, whIch were the subJect of much of the
gnevors eVIdence As to the memo dated Juh 5 2002 referenced b, the gnevors, she clanfied that the,
6
were correct that It dId not deal wIth compressIOn pa, but that dId not mean that the, were also correct m
behevmg that Mr KanJI s mput was Ignored. Instead, the 2002 memo dealt onh wIth the broad swath of
salan mcreases for the year CompressIOn pa, was dealt wIth later as It was necessan to first have the
broader mcreases m place to accurateh see where the compreSSIOn problems were It then took tIme to
analyze the data collected, formulate a proposal and get the appropnate approvals Accordmg to her
uncontradIcted eVIdence Mr KanJI s memo together wIth sImIlar mput from other Mimstnes, was
closeh revIewed and fed mto the process of preparatIOn for thIS second stage of compensatIOn. Ms
Caplan emphasIzed however that Mr KanJI s authont, dId not go beyond alertmg the employer to the
Issues, whIch he had done m ven clear terms She also noted that the staff formulatmg proposals would
have looked at data telhng them whIch managers, mcludmg Nurse Managers, who had dIrect reports
whIch were compressmg them The second stage of the process resulted m a memo dated Juh 31 2003
whIch granted compreSSIOn pa, for the penod Apnl 1 2002 to March 21 2004 The mmImum
percentage dIfferentIal between manager and subordmate was fixed at 5%, as It had been m the past, and
the a pre-reqmsIte was that a manager have a dIrect actIve reportmg relatIOnshIp WIth an employee to
benefit from the compreSSIOn pa, From the employer s pomt of VIew thIS payment addressed the Issues
raised b, the gnevors as to compreSSIOn pa, It ma, be ObVIOUS to remark that It dId not deal WIth It
sufficIenth generoush from the gnevors pomt of VIew especIalh as there had prevIOush been
dIfferentIals consIderabh hIgher than 5% at Penetangmshene
To the gnevors suggestIOn that there must be some consIderatIOn as to the dutIes of a pOSItIOn when
recommendatIOns as to pa, are made Ms Caplan rephed that central Human Resource staff do not
consIder mdIvIdual dutIes m the process of makmg salan recommendatIOns Rather the, are lookmg at
mcreases across the salan ranges as the, are at that tIme She mentIOned that there are thousands of
management employees the aim IS to adJust the salan ranges accordmg to the pohtIcal wIll of the da, In
answer to a questIOn from the gnevors as to what dIssatIsfied managers can do she Said concerns can be
brought to the Human Resources people wIthm the mmIstnes and the management cham of command. If
the compensatIOn SItuatIOn presents operatIOnal concerns to more semor managers m the gnevors
mImstn the, are able to bnng the concerns forward, but there are no guarantees that an, speCIfic
mcrease or reVISIOn will be granted.
Ms Caplan s eVIdence also dealt WIth the 'Salan Rates/Ranges DIrectIve whIch forms part of the
gnevors case She charactenzed It as deahng WIth the 'how and the who of the determmatIOn of
salan ranges and classes The 'how much aspect of salan determmatIOn IS set b, Order-m-CouncIl,
whIch must be SIgned b, the Mimster the Chair of Management Board of Cabmet. The dIrectIve
document speaks to pa, admmIstratIOn, to gmde staff m the makmg It happen of compensatIOn, once It
has been approved at the pohtIcallevel b, Order-m-Council It does not set a speCIfic level of
7
compensatIOn or specIfic terms and condItIOns of employment. As to the words emphasIzed b, the
gnevors entItlement to revIsed salan rates as a result of cychcal reVIew of class salan ranges she
offered her understandmg of ItS meamng the entItlement IS not to a cychcal reVIew at an, partIcular
mterval Rather an entItlement to a revIsed salan rate anses when revIsed salan rates are authonzed as
the outcome of an, cychcal reVIew that occurs She noted that Human Resources IS responsible to
recommend mcreases for management staff to the CIvIl ServIce CommIssIOn and Management Board of
Cabmet, but IS not m a posItIOn to authonze them. Further she emphasIzed that the process IS ven
dIfferent from Human Resources responsibIht, to negotiate changes wIth bargammg agents She Said
there IS no wntten pohc, as to what Human Resources looks at m researchmg and formulatmg salan
proposals, that speCIfic dIrectIOn from more semor management IS often verbal
As to the document entItled 'Human Resources Management DIrectIve Ms Caplan charactenzed It as a
broad, general statement of the employer s pOSItIOn on Human Resources management, whIch contamed
nothmg about speCIfic terms and condItIOns of employment and dId not speak to the partIculars of
determmmg salan or other compensatIOn for an, speCIfic Job class To her the wordmg guaranteemg
equal treatment would apph m the salan settmg to ensure that anyone entItled to a certam mcrease would
get It, not to guarantee the equal mcreases to even employee Further the defimtIOn of 'Human
Resources Management whIch hsts man, but not all, of the functIOns of Human Resources
Management, and mcludes pa, and benefits refers to the mechamsm of how the government pays out
whatever employees are entItled to not to the fixmg of the rates themselves
***
In theIr summatIOn, the gnevors mdIcated that the, were not convmced m an, wa, that the, had been
gIven an appropnate salan reVIew The, are dIssatIsfied because the process was not transparent or
concrete and are lookmg for an appropnate reVIew Based on the dIscussIOn at the heanng and the wa,
the gnevors have been dealt WIth over the years, the, mdIcated the, still feel the, have no real Idea of
how people come up WIth the results the, come up WIth, WIth the result that It looks arbItran to them.
For example the, mentIOned that the, never see the flow ofmformatIOn eIther wa, e.g what
mformatIOn IS asked for or conSIdered when salan proposals are created and revIsed. Further when a
global percentage IS apphed to theIr salan class the, feel at the whIm of a process that does not gIve
suffiCIent Importance to the work the, perform and the kmd of chents the, deal WIth m a maXImum
secunt, pSYChIatnc facIht, The, feel theIr work IS Improperh assessed, and that there IS no redress for
them.
8
Employer counsel argued that the gnevors had not made out theIr case as the, have not estabhshed an
entItlement to an,1hmg that the, were not granted. She noted that the, were upset after the OPSEU strike
m 2002 when the settlement amved at for OPSEU bargammg umt members caused compreSSIOn and
mverSIOn problems The, raised the problem, Mr KanJI made a concerted effort on the Issue as well
The response was an mverSIOn and compreSSIOn memo whIch remstated compressIOn pa, effectIve Apnl
1 2002 Refemng to Ms Caplan s eVIdence she Said that the process mvolved for settmg managenal
compensatIOn does not mvolve dIrect mput from managers at the gnevors level Rather It IS theIr
Mimstn who makes the case for managenal mcreases to those wIthm the central Human Resources group
who have the authont, to recommend compensatIOn reVISIOns for approval b, the CIvIl ServIce
CommIssIOn and Management Board of Cab met. The vanous documents m eVIdence should not be found
to be terms and condItIOns of the gnevors employment, m the employer s submIssIOn, the, sImph
describe how busmess IS done on certam Issues
Returnmg to the questIOn before me the pnncIpalIssue to be determmed IS whether the gnevors were
depnved of a salan reVIew to whIch the, were entItled. The secondan questIOn IS whether the, were
treated arbItranh abusIveh or m bad faith m the process apphed to them. The gnevors urge the Board to
mterpret the documents above as a baSIS for a findmg that the, dId not get a salan reVIew to whIch the,
are entItled, the, are lookmg for one whIch hves up to the vanous human resource pohcIes and
documents m eVIdence Havmg carefulh revIewed those documents m hght of the arguments made m
thIS case It IS m, findmg that none of those pohcIes actualh proVIdes for a specIfic type or process of
salan reVIew The questIOn. 'What are the gnevors entItled to b, wa, of salan reVIew?" IS not
answered m these documents There are no specIfic proVIsIOns that go as far as entItlmg anyone to a
reVIew of a certam kmd or at a certam mterval. The specIfic sectIOns of the documents on pa,
admmIstratIOn and human resources management mentIOned b, the gnevors are not ofthat specIfic
nature Nor do the, together add up to such an entItlement. Nonetheless, the eVIdence IS that the
employer does do salan reVIews although not at a fixed mterval Further the details of how the, occur
are not set out m a wntten pohc,
However the eVIdence demonstrates that the gnevors have been part of the cychcal salan reVIew
engaged m b, the employer at mtervals determmed b, a vanet, of factors, mcludmg the expIn date of
the prevIOUS Order-m-Council determmmg managenal compensatIOn and the pnontIes of the government
of the da, The, were treated m the Sallie fashIOn as other managers, m that the process of consIdenng
mput from all Mimstnes was apphed to them, and the pa, admmIstratIOn pohcIes were Implemented so
that the, receIved the benefit of the authonzed salan reVISIOns, mcludmg some rehef on the compreSSIOn
Issue The mput from the gnevors mmIstn most specIficalh Mr KanJI s memo had specIficalh
mentIOned the compreSSIOn problems that are a maJor part of the gnevors concerns, and generalh
9
concluded that If special adJustments were not forthcommg severe compreSSIOn and even mverSIOn
problems would be created. Thus, I do not find that theIr concerns were Ignored b, the employer or that
the, were excluded from the salan reVIew process m place
It IS not necessan to make a determmatIOn as to whether the unwntten salan reVIew procedure or the
provIsIOns of the vanous documents m eVIdence should be consIdered as terms or condItIOns of the
gnevors employment, because I am not persuaded that the, were demed the benefit of the pohcIes,
dIrectIves and provIsIOns ofthe vanous documents before me or ofthe employer s salan reVIew
procedure And there IS no eVIdence of an, other pohc, legIslatIOn or agreement whIch entItles them to
some dIfferent kmd of salan reVIew
The real nub of the problem IS that the outcome of the employer s salan reVIew process has not to date
valued the gnevors Jobs as hIghh as the, are convmced IS appropnate to the responsibIhtIes of theIr
posItIOns It IS clear from the employer s eVIdence however that the cychcal salan reVIews do not
reVIew posItIOns at that level of detail Nor IS there an, pohc, before me that would mdIcate that the
gnevors are entItled to such a detailed reVIew at an, pre-determmed pomt. Although the gnevors are not
seekmg a reclassIficatIOn m thIS gnevance theIr dIssatIsfactIOn WIth the level of the reVIew of theIr Jobs
has much about It that mVItes a level of analYSIS of the detaIls of Job dutIes and responsibIhtIes often seen
m the context of a reVIew of whether a Job IS proper!, classIfied. As noted m the prehmman decIsIOn,
further to s 31(4) of RegulatIOn 977 to The Public Service Act thIS IS somethmg the Board sImph has no
JunsdIctIOn to deal wIth. SImIlarh the submIssIOns of the gnevors to the effect that the current salan
reVIew process IS flawed, could be Improved, or results m a flawed result as to apprecIatIOn ofthe
gnevors ven challengmg work envIronment, are not thmgs the Board has power to remed,
There remams the questIOn of whether the gnevors were treated arbItranh dIscnmmatorih abusIveh
or m bad faith m the salan reVIew process I do not find that the eVIdence supports such a conclusIOn.
Rather as noted above the eVIdence supports a findmg that the salan reVIew process, although more
hmIted than the gnevors would have liked, was apphed to them m the Sallie manner as to other
managers The process appears arbItran to the gnevors because the, are not pnv, to the mner
workmgs of the process of salan reVIew and the formulatIOn of proposals for salan reVISIOn. ThIS
perceptIOn IS not sufficIent to JUStIf\ a findmg that there IS anythmg arbItran dIscnmmaton abUSIve
or m bad faith about the eXIstmg salan reVIew process as apphed to the gnevors
10
For all the above reasons, the gnevance IS dIsmIssed.
Dated at Toronto thIS 7th da, of December 2005