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HomeMy WebLinkAboutP-2004-0837.Sheila Zub et al.07-05-14 Decision Public Service Commission des Grievance Board griefs de la fonction publique Bureau 600 Suite 600 180, rue Dundas Ouest 180 Dundas St. West Toronto (Ontario) M5G 1Z8 Toronto, Ontario M5G 1Z8 Tél. : (416) 326-1388 Tel. (416) 326-1388 Téléc. : (416) 326-1396 Fax (416) 326-1396 P-2004-0837, P-2004-2380 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Grievor Sheila Zub et al. - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Kathleen G. O?Neil Vice-Chair FOR THE GRIEVOR Sheila Zub, Grievor Marlene McKee, Grievor FOR THE EMPLOYER Ferina Murji Counsel Ministry of Government Services HEARING September 20, 2006; January 16 & 17, 2007. 2 Decision This decision deals with separate grievances from two Operational Managers (OM16?s), which were heard together as they raise similar issues relating to the salary treatment of discontinuous assignments as acting managers. The grievors claim retroactive salary increases, arguing that they were unfairly disadvantaged in the way in which their salary progression as acting Operational Managers was treated, negatively impacting their salary on a continuing basis after they were confirmed as managers. By contrast, the employer responds that the grievances should be dismissed on either of two grounds: that they were filed too late, or that the grievors were treated in accordance with the applicable Pay on Assignment Operating Policy so that there was no breach of any of the grievor?s terms and conditions of employment. The employer earlier objected to the Board?s jurisdiction to hear these grievances, but, in a preliminary decision dated December 22, 2005 under the name of Harris et. al., the Board allowed the matters to proceed to a hearing, finding that the Board had jurisdiction to deal with that portion of Ms. McKee?s and Ms. Zub?s grievances that dealt with the salary treatment of breaks in their acting assignments and reserving on the timelines objections. Both grievors had a number of assignments as acting Operational Managers, while they were still technically members of the OPSEU bargaining unit, prior to being confirmed as permanent members of the managerial ranks. Confirmation as a permanent OM 16 occurred in 1998 for Ms. Zub of the Hamilton Wentworth Detention Centre, and 2001 for Ms. McKee in a position at Toronto West Detention Centre, although she remained at the Ontario Correctional Institute (OCI) on temporary assignment until just before the OPSEU strike in 2002. Each time they had 3 a temporary assignment, the grievors received an increase of 3% at the start of the assignment, and when they returned to their bargaining unit positions, they were returned to the then current bargaining unit salary for their classification of Correctional Officers (CO2). According to the employer?s evidence, given by Ms. Risa Caplan, Corporate Compensation Specialist and Ms. Penny Ann Lang, Payroll and Benefits Manager, both of the Ministry of Government Services, both grievors? pay treatment was in accordance with the applicable Pay on Assignment Operating Policy, which determines how temporary assignments, including acting assignments, are dealt with. The most relevant portions of that policy read as follows: ?for management employees, pay on promotion is 3 percent or an increase to bring the employee to the minimum rate of the new salary range, whichever is greater. ?.. Where an employee is assigned to an acting assignment with a higher salary maximum, pay treatment will be the same as in Promotion. ?.. On reassignment to his or her home position, an employee must receive the rate of pay he or she would have attained if the acting assignment had not taken place. The grievors did not disagree with the idea that their pay was technically in accordance with those portions of the Pay on Assignment policy. But they do disagree with the employer?s position that that is the end of the matter. The evidence shows that the aspect that is key to the grievors? dissatisfaction relates to the fact that it would have been more advantageous to them financially had their acting assignments been treated as continuous, which is how they believe other Operational Managers were treated. The grievors assert that others were allowed to keep the increases they had acquired in their time as acting managers, despite breaks in their acting assignments. Thus, they each feel that they were arbitrarily treated in a less preferential manner in this respect. This lead to the grievances, in which Ms. McKee claims that she should have been treated as if she were resuming her acting assignment, rather than starting a new one, after a break in service as an acting manager, and Ms. 4 Zub asks that all her acting time be accounted for. This would have been accomplished if she had been confirmed as an Operational Manager at the rate she was earning before her last break in service in an acting assignment. The fact that it is more financially advantageous if acting assignments are continuous, or treated as cumulative, is the result of a number of elements of the managerial pay structure. The most notable one is that it takes a year in a position for managers to become eligible for merit pay, and more recently, pay for performance. The grievors? acting assignments were non-continuous, and of varying lengths, but added up to more than two years cumulatively for each of them. If the acting assignments had been continuous, or treated as such, they would have been confirmed at a salary that reflected the 3% pay increase they received at the beginning of their acting assignments, any across-the-board increases during their acting assignments and the possibility of two years of merit pay or pay for performance, which would have allowed them to progress to the maximum of the Operational Manager salary grid more quickly than they did. Each of the grievors had at least one acting assignment of more than twelve months, during which they each received a merit award, so it is not unlikely that they would have had at least one other merit award if their acting assignments had not been interrupted by periods of return to their home positions in the bargaining unit. As it was, Ms. McKee?s longest assignment was directly before her confirmation. This resulted in her being confirmed as a manager at a salary which recognized the merit increase she received seven months before her confirmation. As for Ms. Zub, her one acting assignment long enough to result in a merit award was not her last before confirmation, so that she was confirmed as an Operational Manager at a salary lower than she had been making nine months earlier on the last occasion that she returned to her home bargaining unit position. 5 Ms. McKee objects to her pay treatment on two grounds ? firstly that she stepped down into the bargaining unit 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 Ministry would consider it a break in service. In 1999 there was a strike of the OPSEU bargaining unit during which the union required that acting managers return to the bargaining unit. Then, during the OPSEU bargaining in 2000, there was a work-to-rule at the OCI related to the fact that the institution was slated to close. Ms. McKee testified that she discussed the pressured situation with her managers before she stepped down on both occasions and was assured by them that there would be no adverse effects on her continuing her acting assignment once the labour dispute was resolved. On cross-examination she acknowledged that the issue of breaking service was never specifically discussed, but that the idea was that she was to continue her previous acting assignment. She was never informed that she would receive a new service date when she resumed acting as an Operational Manager or that it would be considered a new acting assignment when she returned. It seems clear that Ms. McKee thought there would be no financial disadvantage to stepping down. It is equally clear that her managers did not explicitly promise her the pay treatment she claims, as Ms. McKee acknowledged on cross-examination that pay was not specifically discussed. When she resumed acting as an OM16 a few weeks later, in April 2000, Ms. McKee again received a 3% increment, but says she 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 assignment in March 1998. The evidence establishes that it is true that each time Ms. McKee went back into the bargaining unit she ?lost? the 3% pay on promotion, but she picked up whatever increases she was entitled to as a member 6 of the bargaining unit, and then the next time she went back up to an acting position, she received the 3% promotional increase, calculated on the then current CO2 rate. What she did not receive was the cumulative effect of raises that a continuous assignment would have provided, until April 2000, after which she did not return to the bargaining unit. Ms McKee took the position that she should have been at the top rate of the Operational Manager pay grid in April 2001, whereas in actuality, she did not reach the maximum until April 2006. The second basis on which Ms. McKee bases her grievance is a comparison with other operational managers. As noted, she believes that others have been able to maintain their increments without being penalized for having interrupted acting assignments during various union actions and strikes. In her grievance, Ms. McKee cited the example of another Operational Manager, 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 if this Operational Manager had been reduced to the top Correctional Officer rate plus 3% after each time she stepped down. However, the employer?s evidence was that this particular Operational Manager had been paid as an acting Operational Manager position continuously from September 1994 until she returned to her home CO2 position during the 2002 strike. This indicated to Ms. Lang that she had not stepped down during earlier periods of collective bargaining. Ms. McKee found this unlikely, but there was no evidence called to contradict Ms. Lang?s from anyone who had knowledge of this Operational Manager?s actual experience in the earlier periods. Ms. Lang prepared detailed salary histories for four of the managers used as comparators for the grievors, which all participants in the hearing agreed to keep confidential and only use in the hearing. In her oral evidence, Ms McKee referred to a number of other managers whom she 7 believed received preferential treatment, to which the employer did not respond with similarly detailed evidence. Ms. McKee asserted that this should be taken as an indication that the employer did not think those examples were advantageous to their case. Having considered all the evidence before me, including the grievor?s evidence about these examples, I find that there is not sufficient information about them on which to make a finding that the managers referred to by Ms. McKee received some improper preferential treatment. Two of those examples were individuals confirmed later than the grievors, and whose acting assignments were interrupted by the 2002 OPSEU strike. The employer?s uncontradicted evidence established that it was true that the acting managers who stepped down during the 2002 strike were treated differently than the grievors in earlier job actions. However, this was not as a result of some individual preferential treatment, but because there was a specific directive from Management Board which provided that acting managers who had stepped down for the 2002 strike and resumed acting immediately after, would return to their pre-strike salary. Both Ms. McKee and Ms. Zub had been confirmed as managers before the 2002 strike, so this feature did not apply to them. After Ms. Zub was confirmed in July, 1998, she asked for credit for all her experience as an acting manager, but was not granted it. Instead, her merit date was established as March 1, close to the start of her last acting assignment, which she was still in when confirmed as a manager. She received the impression that her superintendent could have recognized her service as an acting OM16 on a discretionary basis. Whether or not that is the case, there is no evidence establishing that the failure to recognize that experience in its entirety amounted to an improper exercise of any discretion the Superintendent may have had. Ms. Zub also referred to examples of other OM16?s she asserts were treated more favourably. According to the employer?s uncontradicted evidence, the different lengths of time it took these 8 other managers to reach the maximum of the OM16 pay grid relates to factors which do not show any improper differential treatment of Ms. Zub. The factors at play included a difference in the merit pay percentages they each received, a longer continuous acting assignment immediately prior to confirmation and, in one case, an error in processing the comparator manager?s pay. Conclusions In order to succeed with their grievances, the grievors must show that the employer breached an identifiable term or condition of their employment, or treated them in a way that was arbitrary, discriminatory, or in bad faith. In this context, discriminatory refers to treatment that is different on some improper or illegal basis, not differences that result from the normal application of the same policy to different fact situations. The specific term or condition of employment applicable to the grievors when in acting assignments, as noted above, is the portion of the Pay on Assignment Operating Policy dealing with pay on promotion and temporary assignments. The detailed evidence before me establishes that the grievors were paid in accordance with those portions of that policy, such that no breach of that policy has been shown. In general, the evidence did not contradict Ms. Caplan?s evidence that the applicable Pay on Assignment Operating policy does not contemplate, or account for, the duration of a temporary assignment, its frequency, or for treating separate temporary assignments as cumulative. Rather the policy treats each assignment as a discrete event, and says nothing about breaks in service, or how it is to be decided how long acting assignments are to last. 9 Ms. McKee also referred to the following section of the Pay on Assignment Operating Policy, under the heading ?Principles?: Employee should be paid equitably in their assigned salary ranges, taking into account such factors as skills and job-related experience, relationship to peers and career progression. Both she and Ms. Zub then referred to a number of examples of what they considered inequitable salary relationships to their peers. This was related to the idea that there was a past practice of giving credit for acting experience, whether or not service as an acting manager had been interrupted by periods in the bargaining unit. In the end, the evidence did not show that this was the case at any point other than the 2002 strike, which, as noted above, occurred after each of them had been confirmed as managers, and was the result of a Management Board directive that was issued in regards to those who had been acting managers during that strike. No similar directive was shown to have existed during the strikes and labour actions which affected the continuity of Ms. McKee or Ms. Zub?s acting assignments. This does not constitute a past practice that can be relied on to support a claim for similar treatment dating back to an earlier time when that corporate directive did not exist. As to Ms. McKee?s assertion that there was an agreement with her managers that she would resume her acting assignments after the earlier job actions, the evidence did not support that any promise about pay was made to her, and thus there is not a sufficient basis to find that a promise to pay in the manner she claims was not honoured. Therefore, it is not necessary to deal with the employer?s argument that no enforceable promise could have been made by the senior managers in the institutions, as they do not have the authority to determine how the OM16?s are to be paid for temporary assignments. Ms. McKee feels the administrators should have informed her of the pay consequences before she stepped down, as she did not know what questions to ask. 10 Although this is an entirely understandable opinion, the fact that the details of the effect on her pay was not spelled out is not a breach of any term or condition of employment in evidence. Further, I find that there is no evidence that the variables in the work histories of the various OM16?s, such as the timing of the intervals between the grievors? temporary assignments, which resulted in the differences in the grievors? pay, as compared to some of their colleagues, were manipulated in any improper way. There was evidence that at OCI, for instance, most acting assignments were limited to six months, where as at other institutions such as Metro West Detention Centre, acting assignments were often of much longer duration. However, there is no evidence on which I could base a conclusion that there was anything improper about this difference. It could have been based on a very large number of appropriate factors relating to the needs of the different institutions, the make-up of the staff or different approaches to the use and distribution of acting assignments. Most basically, however, it is not a term or condition of the grievors? employment that there must be consistency between institutions as to the duration and timing of acting assignments. I am persuaded that it is the difference in the work histories of the various managers which results in the fact that different managers have had different rates of pay at some points and reached the maximum earlier or in fewer years in some cases than the grievors. That fact that one error was found does not constitute a practice that can form the basis for a remedy for the grievors, when the evidence establishes that the grievors themselves were paid correctly. In summary, I am satisfied that the grievors were treated in accordance with the applicable policies in evidence, and that no breach of their terms or conditions of employment has been demonstrated. Further, the differences in pay of other managers do not disclose any practice or 11 other conduct on the part of the employer which was arbitrary, discriminatory or in bad faith. With the exception of one error in processing, all the differences were shown to be the result of the straightforward application of the pay policies to somewhat different work histories. Given the findings above on the merits, it is not necessary to deal with the preliminary objection as to timeliness. For the above reasons, the grievances are dismissed. th Dated at Toronto this 14 day of May, 2007 Kathleen G. O?Neil, Vice-Chair