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HomeMy WebLinkAboutP-2005-1853.Mark Woodward et al.06-04-04 Decision Public Service Commission des Nj Grievance Board griefs de la fonction publique Bureau 600 ~ Suite 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 P- 2005-1853 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Mark Woodward et al Grievor - and - The Crown In RIght of Ontano (Mimstry of Commumty and SocIal ServIces) Employer BEFORE Kathleen G O'NeIl Vice-Chair FOR THE GRIEVOR Mark Woodward, Faye Code, Pam Carter (Gnevors) FOR THE EMPLOYER Jamce Campbell Counsel Mimstry of Government ServIces HEARING January 31 2006 2 DeCISIon ThIS deCISIOn deals wIth prelImInary motIOns brought by the employer In respect of gnevances related to overtIme pay dunng the 2002 OPSEU stnke The gnevors are managers employed at three Developmental ServIces FacIlItIes run by the Mimstry of Commumty and SocIal ServIces (MCSS) - the Huroma, Rideau and Southwestern RegIOnal Centres Mr Woodward Introduced hImself as the representatIve for over a hundred managers whose names are lIsted as gnevors In the matenal filed wIth the Board. The Issue In dIspute anses from the fact that managers who worked In correctIOnal facIlItIes dunng the 2002 stnke, IncludIng some managers redeployed from MCSS receIved double tIme for all hours worked, whereas the gnevors receIved double tIme only for authonzed hours worked over 36.25 If they worked a mImmum of forty-four hours In a week. The general thrust of the gnevances IS that It IS unfair to create a dIstInctIOn between managers who worked In developmental servIces facIlItIes and those who worked In correctIOnal InstItutIons The gnevors made reference to many facts In support of theIr gnevance all of whIch are accepted as true and provable for the purpose of the consIderatIOn of the prelImInary motIOns The documentary basIs for the gnevance IS an amendment made to RegulatIOn 977 dated Apnl 23 2002 entItled "New or RevIsed EntItlements for Manager Semor Management and Excluded Employees dunng a Stnke or Lockout" ThIS amendment Increased the overtIme rate from tIme and one half to two tImes the hourly rate for managers workIng In facIlItIes run by MCSS (prevIOusly known as Mimstry of Commumty FamIly and ChIldren ServIces) the Mimstry of PublIc Safety and Secunty (MPSS) and the Mimstry of Health and Long Term Care (MOHLTC) It IS not dIsputed that managers In correctIOnal facIlItIes were paid double tIme for all hours 3 worked dunng the stnke If they had worked a threshold of forty-four hours In a week. The gnevors also rely on what they belIeve were the terms of a settlement wIth another MCSS manager grantIng hIm double tIme for stnke work. The gnevors have been demed access to these terms, but ask the Board to reVIew the settlement. Other facts Included In the gnevors' submIssIOns to support theIr claim that the dIstInctIOn made In overtIme payment was IneqUItable Include the challengIng clIentele In the MCSS facIlItIes, whose unpredIctable and sometImes vIOlent behavIOur has to be dealt wIth wIthout the optIOn oflockIng people down, somethIng avaIlable to those who work In correctIOnal facIlItIes As well, the workIng condItIOns dunng the stnke were partIcularly hard, InvolvIng very lengthy ShIftS, and InstructIOns not to travel further than 30 mInutes away from the facIlIty In order to be prepared to return ImmedIately If needed, dIfficultIes wIth the pIcket lIne leadIng to managers' sleepIng at the facIlIty rather than nsk beIng unable to attend on tIme for the next shIft, as well as very short turnaround tImes between ShIftS FamIlIes of managers were negatIvely Impacted as well Emvloyer Preliminary Objections The employer submIts that the Public Service Act does not recogmze group gnevances, that the gnevances were not filed wIthIn the tIme lImIts set out In The Public Service Act, and that the gnevances are wIthout adequate foundatIOn, In that they do not make out a prima facie baSIS for the remedIes claimed. 1 No jurisdiction over f[rOUV zrievances As to the obJectIOn to a group gnevance counsel relIes on the wordIng of s 34(1) of RegulatIOn 977 under 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 4 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) 4) The gnevance 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) Counsel says that the Act speaks only of a "person" beIng able to gneve, and does not provIde for group gnevances Counsel notes that there are no sIgnatures for the great maJonty of the people lIsted as members of the group and nothIng shoWIng that these IndIVIduals agreed to be on the lIst represented by Mr Woodward. There IS no wntten acknowledgment that they would be bound by the decIsIOn or to conclude that they were partIes to the gnevance Further the IndIVIduals on the lIsts have not set out theIr reasons as reqUIred In s 34(4) Counsel argues that the gnevors have chosen to Ignore the gnevance procedure set out In the legIslatIOn, and thus, as currently filed, the gnevances are beyond the JunsdIctIOn of the Board. In the alternatIve, counsel argues there are only three gnevances properly before the Board, those of the people whose sIgnatures appear on each of the three gnevance letters submItted, each wIth a separate lIst of names The gnevors' understandIng was that the people on the lIst had been contacted by phone or e- mall and asked If they were "on board" to gneve, and that In contactIng In that way they were tryIng to meet the 14 day count-down from when they realIzed that managers workIng In correctIOnal facIlItIes had been paid more dunng the stnke Further Mr Woodward represented the gnevors at Stage 2 and was recogmzed by the Deputy Mimster wIthout obJectIOn. The employer never raised any obJectIOn untIl the heanng and should not be able to do so now In the gnevors' submIssIOn. Further the gnevors submIt that, as Managers, when dealIng wIth OPSEU and AMAPCEO they try to take the approach of dealIng wIth the ments of the gnevance, rather 5 than defeatIng It on the basIs of the form of the filIng, whIch IS how they submIt thIS matter should be handled. SInce there are three sIgned gnevances before the Board, wIth detaIled reasons, there IS JunsdIctIOn to deal wIth the ments of the complaInt. GIven the decIsIOn below It IS not necessary to comment further on the group gnevance Issue 2 Timeliness The employer's tImelIness obJectIOn IS based on the submIssIOn that the gnevances were filed well after the 14-day tIme lImIt set out In s 34(1) of RegulatIOn 977 set out above It was submItted that the case law IS now well establIshed that the onus IS on the gnevor to establIsh grounds for any extensIOn of tIme beyond those tIme lImIts, and compellIng reasons are reqUIred. Although those appeanng state they were not aware of the sItuatIOn untIl shortly before the gnevances were filed In 2005 counsel submIts that It IS unreasonable to assume that all of the over 100 people lIsted as gnevors dId not know that correctIOns managers were paid dIfferently from MCSS managers untIl years later She noted that some of the people lIsted worked In Human Resources or payroll as well, and that employees ofMCSS had famIly and fnends workIng In correctIOnal facIlItIes Further there IS no eVIdence or statements from all of the people on the lIst that they dId not know of the dIfference In pay untIl the tIme of the gnevance Without some eVIdence to establIsh a bona fide basIs for the delay counsel submIts that the gnevance should be dIsmIssed as untImely Further the employer argues that the gnevances cannot be consIdered as contInuIng ones, and that the gnevances do not raises Issue of the senous nature that has called for extensIOns of tIme In other cases, such as human nghts Issues, harassment or dIsmIssal As well, counsel asserts that the employer would be preJudIced In presentIng ItS case after such a lengthy delay 6 The gnevors present at the heanng responded wIth the facts wIthIn theIr knowledge, whIch Included that even people who worked In Human Resources for MCSS were not aware that managers In correctIOnal facIlItIes were paid double tIme for all hours dunng the stnke untIl much later Further the subJ ect of managenal overtIme was not much dIscussed at the workplace when the stnke was over out of respect for bargaInIng umt members who had been wIthout pay for two months There was no reason to questIOn the overtIme payments untIl 2005 folloWIng workshops In preparatIOn for a potentIal labour dIsruptIOn In that year dunng whIch remarks were made about dIscrepancIes In overtIme payments from the last stnke As well, there was dIscussIOn about a settlement wIth another MCSS manager the terms of whIch were confidentIal, but whIch the gnevors belIeve contaIned consIderatIOn for the way MCSS managers were paid overtIme dunng the stnke Then the gnevors became aware that there must have been a general dIscrepancy In the payment of overtIme dunng the stnke when the Mimstry's lIst of those makIng more than $100 000 were accessed shortly before the gnevance was filed. The lIst showed that some MCSS managers redeployed to correctIOnal facIlItIes earned consIderably more than those who had remaIned In MCSS facIlItIes dunng the stnke When managers Involved confirmed that managers workIng In correctIOnal facIlItIes were paid on a more generous basIs, the gnevance was filed. Thus, It IS the gnevors' submIssIOn that they acted In a tImely manner when they became aware of the dIfferent treatment they had receIved. SInce the tIme lInes In s 34(1) do not start runmng untIl a gnevor IS aware of the complaInt, the Board IS urged not to dIsmIss the gnevance on the basIs of tImelIness GIven the decIsIOn below on the Issue of the legal foundatIOn for the claim, It IS not necessary to rule on the tImelIness obJectIOn 7 3 No prima facie case The thIrd basIs on whIch the employer argues that the gnevances should be dIsmIssed IS 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 The employer's basIc assertIOn IS that the gnevors have IdentIfied no contractual promIse, term or condItIOn or employment made to the gnevors that they would be paid double tIme for all hours worked dunng the 2002 stnke The employer underlInes that the only potentIal basIs for theIr claim IS the amendment to RegulatIOn 977 whIch provIded for double payment for overtIme as defined In the polIcy but SInce all the gnevors were paid In accordance wIth It, no remedy IS avaIlable floWIng from that regulatIOn. Employer counsel refers to Macklin et. al and the Ministry of the Solicitor General and Correctional Services, (LeIghton) [PSGB file numbers P/OIOO 0101 0102,0104 and 0105/96], a decIsIOn dealIng wIth claims for vanous payments anSIng from the 1996 OPSEU stnke The maIn thrust of those claims was that one set of managers In correctIOnal InstItutIOns had not been paid as well as others In terms of overtIme 1 e one set of managers was paid at overtIme rates for the entIre stnke penod, whIle others were not. As In the facts of the current gnevances, the gnevors had been paid In accordance wIth the overtIme provIsIOn then In effect. Further they acknowledged In that case that they had never been promIsed that they would be paid overtIme for the entIre stnke In regards to the fact that managers at a dIfferent correctIOnal InstItutIOn had been paid more than was reqUIred by the overtIme provIsIOns, the Board held that the more generous payments were In addItIOn to theIr entItlement, and "the decIsIOn to do more than what IS reqUIred IS at the dIscretIOn of the employer" Counsel stresses that the Board found that the fact that one set of managers was paid over and above theIr mImmum entItlement dId not create an oblIgatIOn to pay other managers on the same basIs, even wIthIn the same Mimstry Further 8 the employer submIts that no facts have been put forward that show that the MCSS managers were dealt wIth In bad faith, or In an Illegal dIfferentIal manner In the result, counsel argues that no prima facie case has been establIshed, and that the matter ought to be dIsmIssed. The gnevors respond that theIr complaInt lIes In the IneqUIty and dISCnmInatIOn about theIr salary whIch falls Into the category of workIng condItIOns and terms of employment about whIch they are entItled to gneve The MCSS managers feel that they had a specIal Job to carry out dunng the stnke, as dId the managers In correctIOnal facIlItIes, and that there IS no reason that they should be paid less They submIt that they worked equally hard as those workIng In correctIOnal facIlItIes, carryIng out theIr mandate In homes for the developmentally handIcapped, ensunng the safety of all whIle dealIng wIth the resIdents' escalatIng behavIOur The gnevors feel It IS dISCnmInatory because the dIfferentIal In pay IS a statement that the work of those deployed to correctIOnal facIlItIes was of greater value than theIr own work. The gnevors argue that the IntentIOn of the regulatIOn was for all management employees workIng In the IdentIfied Schedule 9 facIlItIes to be treated equally and that the InterpretatIOn of the amendment applIed In the correctIOnal facIlItIes should be applIed to them They also rely on the decIsIOn In the case of Mously, Lister Watson and the Ministry of the Solicitor General and Correctional Services, (LeIghton) [PSGB file numbers P/0068 0171 and 0172/96] dated Apnl24 1998 whIch they assert supports the need for eqUIty and fairness In compensatIOn for OPS managers across schedules In the Board's VIew the gnevances should be dIsmIssed because even assumIng the facts asserted to be true and provable there IS not a sufficIent basIs for the gnevors' claim to succeed. There IS no assertIOn that any of the gnevors were paid somethIng less than what was promIsed by the amendment to RegulatIOn 977 whIch applIed to overtIme worked dunng the stnke It IS 9 the Board's VIew that In order to have a vIable gnevance to the effect that they should have receIved more than that, the gnevors would have to demonstrate that they had a term or condItIOn of employment that promIsed more than that, and that they dId not receIve It, whIch IS not the case for any of the gnevors The basIs for the gnevance IS essentIally that managers workIng In correctIOnal facItIllles dunng the 2002 stnke were paid for overtIme more generously than those In the MCSS facIlItIes The gnevors submItted that thIS was an InterpretatIOn of the regulatIOn that should have been applIed to them However there IS no suggestIOn that there was ever a promIse, polIcy regulatIOn or some IdentIfiable practIce or precedent that could amount to a term or condItIOn of employment to the effect that managers workIng In one mImstry must be paid no less generously for overtIme dunng a stnke than managers In another mImstry or settIng. As In the Macklin case, cIted above, even wIthIn the same Mimstry the Board has held that payments over and above a manager's entItlement are WIthIn managenal dIscretIOn The fact that other managers were paid more IS not a sufficIent legal basIs for a gnevance to succeed, wIthout some fact suggestIng that there was an Improper reason for such a dIfference, such as dISCnmInatIOn on the basIs of race gender relIgIOn or some other IdentIfied Illegal ground, or that the decIsIOn to pay the gnevors what was reqUIred under the regulatIOn at the tIme, rather than more, was somehow arbItrary or In bad faith. The facts before me do not form a sufficIent basIs for such a findIng. The Board IS empowered to make findIngs of fact as to what the terms and condItIOns of employment for managers are, IncludIng theIr pay provIsIOns, when that IS dIsputed, and to enforce such terms, but It IS not empowered to set those terms and condItIOns of employment. On the facts before the Board In thIS case, It would amount to settIng a new term or condItIOn of employment to declare that gnevors who were paid In accordance wIth the regulatIOn then In 10 effect for overtIme dunng the stnke should have been paid on the more generous basIs that managers In correctIOns were paid. The gnevors have suggested that It IS merely a questIOn of InterpretatIOn of the amended regulatIOn, and that the IntentIOn of the regulatIOn was that all managers In the lIsted facIlItIes should be paid the same In my VIew the determInatIve Issue IS not one of InterpretatIOn of the regulatIOn. The wordIng of the regulatIOn IS very plaIn In saYIng In subsectIOn 10 11 3 (6) that the employee IS "entItled to receIve overtIme credIt calculated at double tIme for hIS or her work at a facIlIty or locatIOn lIsted In Schedule 9 In excess of 36 1J4 hours workIng dunng the week" and In subsectIOn 10 11 3(4) that there IS a pre-condItIOn of havIng worked 44 hours In the week. It IS not a vIable argument on the wordIng of the regulatIOn that the gnevors were entItled to double tIme for all hours worked dunng the stnke The agreed fact that the managers workIng In correctIOnal facIlItIes were paid double tIme for all hours, IncludIng the first 36 1J4 per week, IS not somethIng that flows from the plaIn meamng of that language On the face of the matenal before me, the method of payment to managers In correctIOnal facIlItIes for overtIme was over and above the entItlement set out In the amended regulatIOn. The Issue In thIS case IS whether or not the gnevors are also entItled to be paid more than the amended regulatIOn reqUIres The gnevors also raised the Issue of a settlement wIth another MCSS manager whIch they belIeve afforded compensatIOn for stnke overtIme However the terms of that settlement were said to be confidentIal, and no sufficIent basIs for makIng them publIc or for allowIng a gnevance on the basIs that such a settlement had been made, has been put forward. Even If a settlement were made wIth another manager about whIch the Board makes no factual findIng, It would not form an entItlement for the gnevors In the current case unless there was some other 11 cIrcumstance as a basIs for such an entItlement, such as that they had been partIes to that settlement and were seekIng ItS enforcement. There IS no suggestIOn that that IS the case The gnevors also referred to the Mously, Lister, Watson decIsIOn, cIted above, as support for the need for eqUIty and fairness In compensatIOn for managers across the publIc servIce In that case the Board decIded that the gnevors had met the condItIOns to be paid In accordance wIth the applIcable Order-In-CouncIl and had not been paid accordIngly The remarks the Board made about the Importance of eqUIty and fairness In that case were dIrected at the Issue of whether managers who had not gneved should also be awarded payment In accordance wIth the Order-In- CouncIl whIch the Board had found had not been followed by the employer FindIng that the Board dId not have JunsdIctIOn to make an order affectIng IndIVIduals who were not partIes to the gnevance, the Board remarked as follows Even though I find that I do not have JunsdIctIOn to make the order as requested, I belIeve that for the sake of fairness, eqUIty and future employment relatIOns, the Employer ought to pay the overtIme premIUm for all overtIme earned dunng the OPSEU stnke to all those managers who qualIfy for the entItlement provIded In OIC 2160/90 and PolIcy K-IO I am of the VIew that If the employer does not pay the entItlement to those who have not gneved that there wIll be a chIllIng effect on employee morale It IS Important to keep In mInd the context of those remarks, 1 e the Board had found that there was an entItlement to be paid overtIme at the rate of tIme and one half for qualIfYIng overtIme hours worked dunng the 1996 OPSEU stnke ThIS entItlement had not been paid to a group of managers, some of whom had gneved and some of whom had not. In the facts of the current case, the entItlement set out In the amended regulatIOn applIcable to the 2002 stnke was to be paid double tIme for qualIfYIng overtIme hours dunng the stnke No gnevor claims they have not been paid that entItlement. The claim IS that they ought to have been paid more than what IS set out In the amended regulatIOn, 1 e double tIme not Just for qualIfYIng overtIme hours, but for 12 all hours worked dunng the stnke, whIch was the sItuatIOn for managers workIng In correctIOnal facIlItIes The dIfference In the two cases IS that I have found that there IS no entitlement for the gnevors to be paid In the more generous fashIOn, so that there IS no Issue about whether those who dId not gneve should be paid the same as the gnevors were paid. Thus the Issue about eqUIty and morale raised by the gnevors IS not of the same nature as the one In that case where the concern was that those who had gneved would be paid accordIng to theIr contractual entItlement, whIle those who had not gneved would be paid less Here, the gnevors' concern IS that the managers workIng In correctIOnal facIlItIes were paid more than the entItlement floWIng from the amended regulatIOn, somethIng for whIch no remedy IS to be found In the gnevors' terms and condItIOns of employment. In the result, for the reasons set out above, the gnevances are dIsmIssed. Dated at Toronto thIS 4th day of Apnl, 2006