HomeMy WebLinkAboutP-2017-3151.Tremblay et al.20-02-04 Decision
Public Service
Grievance Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission des
griefs de la fonction
publique
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
PSGB# P-2017-3151; P-2017-3253; P-2017-3254; P-2017-3346; P-2017-3348;
P-2017-3349; P-2017-3350; P-2017-3732; P-2017-3733; P-2017-3734; P-2017-3735;
P-2017-3794; P-2017-3795
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE OF ONTARIO ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Tremblay et al Complainant
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE Andrew Tremayne Vice Chair
FOR THE
COMPLAINANT
Eric Tremblay
FOR THE EMPLOYER
HEARING
Stewart McMahon
Treasury Board Secretariat
Legal Services Branch
Senior Counsel
January 18, April 12, July 12, 2019;
Written submissions completed:
July 26, 2019
2
Decision
[1] This decision deals with a preliminary objection raised by the employer concerning
complaints filed by 13 senior managers in the Aviation Services Section of the Ministry of
Natural Resources and Forestry. The employer takes the position that the Board has no
jurisdiction to deal with the complaints because the complainants sent their notices of
proposal to file their complaints outside of the time limits required by the regulations. The
complainants disagree and say that they complied with the relevant time limits and that
their complaints should be heard on the merits.
[2] Other than the identity of the complainants, the substance of all 13 complaints is
very similar: they have questions of law or fact in common, and they arise out of the same
transaction or occurrence. As a result, the Board ordered that the complaints would be
heard together. The parties agreed that Mr. Tremblay would “take the lead” to deal with
the employer’s preliminary objection, because he was the first of the complainants to
send a notice of a proposal to file a complaint (from now on referred to as “notice of
proposal” or simply “notice”). If Mr. Tremblay’s notice was filed outside of the Board’s
timelines, then all of the other notices are also untimely.
[3] The parties’ disagreement about whether the notices were filed within the time limits
required by the regulations is a mixed question of fact and law. As a result, and although
most of the facts that are relevant to the employer’s objection were not in dispute, Mr.
Tremblay gave evidence at the hearing.
Background to the Complaints
[4] A summary of the principal facts as alleged in the complaints is helpful to provide the
context for this decision. In 2014, the complainants started to receive a special salary
allowance, which the employer introduced because Aviation Services was experiencing a
retention and recruitment problem. They were paid the salary allowance over and above
the normal salary that applied to their classification.
3
[5] In late 2018, the employer implemented the Management Job Evaluation Project
(MJEP). The main objective of MJEP is to standardize job descriptions for managers
who are in similar roles across the Ontario Public Service. MJEP was implemented along
with a new compensation plan for managers, which reduced the total number of
classification levels and salary ranges. The overall effect was a complete reconstruction
of the compensation system for managers, including the complainants. The details are
set out in Management Board of Cabinet Directive 33-66 under the PSOA 2006, titled
Directive for the Creation of Classes of Position, Salary Ranges, Remuneration and
Transition for Middle Managers (dated November 15, 2016, and reissued on September
12, 2017, and March 20, 2018).
[6] In practical terms, MJEP was used to determine the classification level of all
managerial positions in the new system. Managers were then assigned to a new “class
of position,” each of which has a salary range. A manager’s “pre-MJEP” salary was used
to determine their placement on the new salary ranges, and rules for pay administration
were devised and set out in the Directive to assist with the placement. For example, if a
manager’s “pre-MJEP” salary was below the minimum of the salary range in effect for the
manager’s new class of position, the manager would be placed at the minimum of the
new class of position; if the “pre-MJEP” salary were greater than the maximum of the
salary range for the manager’s new class of position, the manager’s salary would not
increase until the maximum caught up to the manager’s salary.
[7] The Directive also says that if a manager received a salary allowance, it was to be
included in the “pre-MJEP” salary, effectively rolling it into a manager’s base salary, and
that going forward, the manager would no longer be eligible for a salary allowance. This
provision is of particular relevance to the complainants, because they had been entitled to
receive a salary allowance since 2014. Moreover, the salary allowance was always paid
in addition to their regular salary.
[8] The complainants argue that by including the salary allowance in the calculation of
the “pre-MJEP” salary, the employer’s new compensation system has worked to their
financial disadvantage. Instead, the employer ought to have transitioned them to the new
4
system without consideration of the salary allowance, then placed them in the appropriate
salary range based solely on their base salary. The salary allowance should be added to
their total compensation at the end.
[9] The employer argues that the complainants had enough information about this
change by November 16, 2017, and that they should have given the Deputy Minister
notice within 14 days of that date, which they did not. Mr. Tremblay was the first of this
group of complainants to send a notice of proposal, and he did so on December 14,
2017, which still makes it untimely. Mr. Tremblay says that he did not become aware of
the working condition or term of his employment that gave rise to his complaint until
December 12, 2017 and that he sent his notice two days after that on December 14,
2017, which is well within the 14-day time limit.
Statutory Context
[10] It is useful to briefly review the Board’s statutory framework to place the parties’
disagreement about the timeliness of the complaints in context.
[11] The Board only has the powers granted by the Public Service of Ontario Act, 2006
(PSOA), and the regulations made under that legislation, such as Regulation 378/07.
That regulation sets out a very specific set of time limits or "windows" of time in which
steps must be taken to file complaints about discipline or terms and conditions of
employment. To decide the employer’s preliminary objection, it was agreed that the
complaints are about a working condition or a term of employment, and not about
dismissal or a disciplinary measure.
[12] For complaints concerning a working condition or a term of employment, notice of a
proposal must be given to the deputy minister within 14 days after the complainant
becomes aware of the working condition or a term of employment giving rise to the
complaint.
5
[13] Once notice is given to the deputy minister, the regulation creates a dispute
resolution period that must expire before the complainant is entitled to file a complaint
with the Board [s. 9(1)]. A complaint will be untimely in the sense of being too early if it is
filed before that dispute resolution period has expired and too late if it is filed more than
fourteen days after the dispute resolution has expired. The end of the dispute resolution
period is measured in different ways, depending on whether or not there is a meeting
between the complainant and the deputy minister (or delegate) within 30 days after
receipt of the complainant's notice of proposal to file a complaint.
[14] If there is no meeting within those 30 days, the dispute resolution period expires 30
days after the notice of proposal is given to the deputy minister [s. 9(5)]. If there is a
meeting between the complainant and the deputy minister (or delegate) within those
same 30 days, the end of the period of dispute resolution is changed to the earlier of the
day that is 30 days after the meeting, or the day on which the deputy minister gives
written notice to the complainant of their decision about the proposed complaint [section
9(3)]. The end of the dispute resolution period opens a 14-day “window” for the filing of a
complaint.
[15] In this complaint, the employer objects that the complainants have not complied with
the time limits set out for the first step in the process, namely the timeliness of the notice
of the proposal.
When did the complainant become aware of the working condition or a term of
employment giving rise to the complaint?
Evidence
[16] Mr. Tremblay testified at the hearing. He says that on November 7, 2017, he
participated in a conference call led by his Director to learn about MJEP. There were
about 150 people from his division listening in on the call from many different locations.
At the end of the call, he and the other aviation managers were asked to stay while others
6
left. They were given a 2 page handout titled “Key Messages for Management Pilots and
Aviation Maintenance Positions in Receipt of Salary Allowance.” The Director told them
to read the handout, and that if they had any questions, they should contact HR. Mr.
Tremblay did so, and he was told that more information would be forthcoming.
[17] Soon after, he received a copy of a Power Point presentation about MJEP dated
“November 2017”. Among other things, the presentation listed several key dates for
implementation and transition: November 9th/10th when emails with classifications and
salary information would be sent to employees; November 13th when classification and
compensation rate changes would be visible in WIN; and November 27th when salary
paystubs for the November 30th pay date would be visible in WIN.
[18] Next, Mr. Tremblay received an email dated November 15, 2017, advising him of the
classification outcome for his position based on MJEP. He was told that his new
classification was M09 and he was told his salary range for two periods: from April 1,
2017 to September 30, 2017; and October 1, 2017 to March 31, 2018. The email, which
he says he did not read until November 16, 2017 because he did not have access to his
email, also said the following:
Salary and Classification information will begin to be reflected in WIN
on November 13th under the “Job Information” tab. Classification and
compensation changes are anticipated to begin on November 30th.
However, there will be some exceptions. Employees with more complex
position/salary histories will be processed in subsequent pay periods.
[19] The email had some additional information for employees who were receiving a
salary allowance:
For those employees in receipt of a salary allowance
You may be aware that, since 2014, salary allowances were provided to
certain management pilot and aviation maintenance positions, Treasury
Board Secretariat was directed to eliminate salary allowances when
implementing MJEP.
7
To accomplish this, the annual value of the salary allowance will be
added to the base salary of employees who were receiving the
allowance, prior to the employees being placed in the salary range for
their new MJEP classification level.
Because employees in this group have a more complex salary
scenario, your pay will be processed for a pay period after November
30.
If you have any questions, you are encouraged to speak with your
director and to visit the MJEP website for more information.
The MJEP Team
Job Evaluation Initiatives Branch
HR Service Delivery Division
[20] Mr. Tremblay says some of the information in the email was different than what he
had been told on November 7th conference call and in the Power Point presentation,
specifically that there were now “exceptions” and that the dates when the changes were
supposed to be visible in WIN no longer applied to employees with “more complex”
situations. As of November 16th, when he read the email, there had still been no
quantifiable change to his salary or working conditions that he could use to formulate a
complaint, says Mr. Tremblay. The email said, “your current classification is TEN20” so
that had not changed yet, and when he checked WIN, the salary note about his salary
allowance was still there. He could not tell what had happened to his compensation on
that day.
[21] Mr. Tremblay says that after November 16th he checked WIN every day to see if
anything had changed. He understood that the other complainants were doing so as
well. The first time he saw anything that he could actually use to quantify a complaint
was on December 12, 2017, he says, because this was the day when he saw changes to
his WIN account. On that day, he saw his pay stub for the December 28, 2017 payday,
and it was clear that his compensation had changed.
[22] On December 14, 2017, Mr. Tremblay sent an email to Bill Thornton, the Deputy
Minister, MNRF. The other complainants are copied on the email. Mr. Tremblay said: “I
am writing to advise that I (we) propose to file a complaint about a ‘working condition or
8
term of employment’”. Mr. Tremblay briefly describes the history of the salary allowance
and his understanding of its terms. He then says the following:
On December 12, 2017 Aviation managers WIN accounts were updated
to show the Permanent removal of the Salary allowance despite signed
agreements between the employees and the employer
. . . .
In accordance with O Reg 378/07, s 8 (4) timing
Salary allowances were removed from aviation services managers as of
the WIN update that occurred on Dec 12/2017.
Respectfully,
Eric Tremblay
[etc.]
[23] In an email dated December 21, 2017, Tony Gazea acknowledged receipt of Mr.
Tremblay’s email on behalf of the Deputy Minister. Mr. Gazea added that under the
PSOA, only an individual is eligible to file a complaint, and noted that the other
complainants would need to do so on an individual basis should they wish to proceed
with filing a complaint.
[24] When Mr. Tremblay was cross-examined by the employer, he agreed that the core
of his complaint is the fact that the salary allowance was being rolled into his new MJEP
salary. He also agreed that the November 15, 2017 email from MJEP included
information about his new salary range, his total compensation including the salary
allowance, and that his salary would be “red-circled” because it exceeded the top of the
range.
[25] Mr. Tremblay added that there was not enough information in the November 15th
email to allow him to be certain of this and that according to WIN, as of that date he was
still receiving his salary allowance as a separate item. Some information and examples
about retroactive salary increases were included in the “Key Messages” document that he
received after the November 7, 2017 conference call, and also in the November 15, 2017
9
email, but when he tried to apply this information and the examples to his own situation, it
was not clear that his salary would be frozen or that he would be “red circled”. Mr.
Tremblay also says that there were repeated delays with the changes: none of the dates
in the Power Point presentation or the November 15, 2017 email (about when he was
supposed to be able to see the effect of the changes) were accurate. The dates came
and went without any changes being visible in WIN, and there was no further clarification
or explanation from the employer. In other words, he was not able to see the effect of the
changes in black and white until he saw his pay stub on December 12th, 2017.
Submissions and Analysis
[26] The employer submits that when Mr. Tremblay received the November 15, 2017
email, he knew that his working conditions or terms of employment were going to change.
He was told his new classification, his new salary range, and that the salary allowance
would be rolled into the base salary to place him on the new compensation plan. He had
all of the information he needed to send a notice that he intended to file a complaint on
that day. As a result, the 14-day time limit began to run on that day. It expired at the end
of November, so when Mr. Tremblay sent his notice of proposal, on December 14, 2017,
it was past the time limits.
[27] The Board has repeatedly stated that time limits go to its jurisdiction to hear a
complaint, submits the employer. In a line of decisions starting with St. Amant v. Ontario
(Ministry of Community Safety and Correctional Services), 2013 CanLII 4673 (ON
PSGB), the Board has addressed different factual scenarios that have arisen and has
said consistently that compliance with the time limits in the regulations is a true
precondition to the Board having jurisdiction over a complaint. Hasted/Berezowsky v.
Ontario (Ministry of Community Safety and Correctional Services), 2016 CanLII 7473 (ON
PSGB) deals specifically with the time limits for sending the notice of proposal to file a
complaint and the Board reached the same conclusion: the time limits in the regulations
go directly to the Board’s jurisdiction to deal with a complaint. As a result, argues the
employer, because Mr. Tremblay did not send his notice until after the 14 day time limit
had expired, the Board is without jurisdiction to hear his complaint.
10
[28] Mr. Tremblay submits that there was not enough information in the November 15,
2017 email to allow him to be certain of how the changes would affect him. According to
WIN, as of that date, he was still receiving his salary allowance, and it was not clear to
him at that time that his salary would be frozen. There were also repeated delays with
the changes: the dates when he was supposed to be able to see the effect of the
changes in WIN came and went without the changes being visible in WIN and with no
further comment from the employer. In other words, says Mr. Tremblay, he did not
become aware of the working condition or term of employment that he complained about
until he was able to see the effect of the changes in black and white, when he saw his
pay stub on December 12th.
[29] The issue to be decided is when the complainant became “aware of the working
condition or term of employment giving rise to the complaint” because once that is said to
have happened, the notice of proposal to file a complaint must be filed within 14 days. If
the notice is filed outside of that time limit, the Board is without jurisdiction to deal with the
complaint itself, which was filed later. The Board’s decisions in St. Amant and
Hasted/Berezowsky have interpreted and applied the language in s. 8(1)(4) of Regulation
378/07, namely the section that sets out the time limits around when a notice of proposal
to file a complaint, so some discussion of the principles in these carefully reasoned
decisions is helpful.
[30] In St. Amant, the complainant had requested a three week unpaid leave of absence.
The employer did not provide a timely answer to the request, so on the day after the
leave would have ended, the complainant wrote to the employer saying that she would
not be taking the leave. One month later, she gave notice to the deputy minister, saying
that she intended to file a complaint concerning the employer’s failure to provide a timely
answer to her request, and she later filed a complaint with the Board. The employer took
the position that the Board had no jurisdiction to deal with the complaint because the
notice to the deputy minister was not timely.
[31] The Board found that the complainant had become aware of the working condition
or term of her employment that gave rise to the complaint at the same time that she wrote
11
to the employer saying that she would not be taking the leave. The employer’s alleged
failure to provide a firm answer to her request, which was the essence of the complaint,
had “brought the matter to a head” the day after the leave would have ended, which was
also the day the complainant had written to the employer to say that she would not be
taking the leave. As a result, the notice given to the deputy minister fell outside the 14-
day time limit set out in s. 8, and the Board was without jurisdiction to deal with the
complaint.
[32] In Hasted/Berezowski, the matter concerned the employer’s alleged failure to pay
compensation for on-call duties while the complainants were assigned to acting positions.
The complainants had been in the acting assignments for nearly two years, and their
notice of proposal to file a complaint was sent to the deputy minister approximately six
months after the acting assignments had ended. The employer took the position that the
notice was filed outside the time limits required and that the Board was without
jurisdiction to hear the complaint. The complainants argued that they had filed their
complaint within 14 days of learning of the alleged breach of the working condition or
terms of employment. The Board said the following:
[23] . . . .The complainants were scheduled for on call duties throughout
their acting assignment without complaint. To suggest that one can
accept identified terms of employment without challenge, only to have
an opportunity to challenge them long after those terms are no longer
applicable as a result of a change in assignment, is to put the employer
in an untenable position and alleviates the employee of any
responsibility to ensure that they are being compensated appropriately.
It also renders meaningless the short and mandatory time limits set by
the Regulation in clear contradiction to its intended purpose of bringing
issues to the attention of the employer at the earliest, failing which the
Board is rendered powerless to deal with the issue.
[24] The complainants acknowledge that they accepted the employer's
recitation of their terms of employment at the outset of their assignment.
The complainants had expressly been informed that, allegedly for
reasons having to do with scheduling at TCI, they were not entitled to
the compensation they now claim. In other words, they were aware of
the working condition or term of employment - that is, that they would be
required to perform on call duties and further, that they would not be
specifically compensated for that work. In addition to understanding the
12
employer's position, they were then in a position to investigate and
challenge that position. Any complaint about the fact that they were not
going to be specifically compensated for such duties crystallized at that
time, at the outset of their assignment. Similarly, in St. Amant, supra, the
Board found that the time limit ran from the date that the complainant
understood that the employer's delay in responding to her request for a
leave of absence rendered her unable to utilize the leave. The Board
found that the employer's failure to respond by a given date "brought the
matter to a head" at that time (para. 9).
[25] The appropriateness of that interpretation is highlighted by the fact
that a breach of this asserted working condition or term of employment
might well have been characterized as continuing, occurring each time
the complainants were required to be on call, thereby allowing the
complainants an opportunity to challenge any alleged violation
throughout their assignment, although likely limiting the remedy
available to them. There was no continuing breach of the alleged
entitlement after January 2014, as the working condition was no longer
engaged. Neither complainant continued to perform on call duties at TCI
after January 2014. Yet they seek compensation for the entire period of
their assignment, a remedy that may well not have been available to
them had they raised the issue during their assignment.
[26] I am persuaded that, in the circumstances here, a timely notice of
proposal to file a complaint was required to have been filed no later than
14 days following the end of the Acting Deputy Superintendent
assignment at TCI, or, no later than 14 days from the date of payment
reflecting the completion of that assignment. In either case, the July
2014 Notice was well beyond a timely date.
[33] In Hasted, the complainants were scheduled for on-call duties throughout their
acting assignments, and they performed this work without additional compensation and
without complaint or challenge. This was the working condition that gave rise to their
complaint, and it ended when the acting assignment ended. In St. Amant, the employer’s
failure to provide a timely answer made it impossible for the complainant to take the leave
of absence. When the requested period of leave ended, still without an answer from the
employer, and the complainant confirmed that she would not be taking the leave, it was
clear that the working condition that gave rise to the complaint was fully formed, so the
14-day time limit began to run from that time. In both of these cases, the Board found
that the complainants became aware of the working condition or term of employment
giving rise to their complaints when they had all the facts that were necessary to ground
13
the complaint. After that point, nothing changed, so it was reasonable to expect that the
complainants would begin the complaint process at that time.
[34] In contrast, Mr. Tremblay first became generally aware of the employer’s overall
plan during the November 7, 2017 conference call. This was one step in implementing
the employer’s new plan. Very soon after that, he was given a copy of the slides from the
“Key Messages” presentation. This document set out the dates when classification and
compensation rate changes would be visible in WIN (November 13th) and when salary
paystubs for the November 30th pay date would be visible in WIN (November 27th).
These two milestones were additional steps in the plan’s implementation.
[35] Notably, these two dates and their accompanying steps were repeated in the
November 15, 2017 email, the delivery of which to all managers was another step in the
employer’s implementation of the new plan. This email also included two important new
pieces of information: “however, there will be some exceptions" and "employees with
more complex position/salary histories will be processed in subsequent pay periods." In
other words, there would be more steps in the implementation of the plan, and the dates
previously announced by the employer would not necessarily apply to all employees.
[36] As a result, Mr. Tremblay had only enough information on November 15th to
understand the employer’s general intentions: the salary allowance would be included
with the base salary before his new classification was placed on the new salary ranges.
However, the changes were not yet visible in WIN, and according to the information that
Mr. Tremblay received from the employer, he was supposed to be able to see the full
effect of the changes on either November 13th or at the latest, on November 27th. But
things had not gone according to the employer’s plan, because there is no dispute that
this information was not visible to Mr. Tremblay in WIN until December 12, 2017.
[37] The employer had told the managers that they would be able to see the changes in
their WIN accounts and see how the changes would in fact affect their pay by a certain
date. This was an important part of the employer’s implementation of MJEP and the new
compensation plan. All of the communications that the employer sent to Mr. Tremblay
14
told him that he would be able to see this important information, and when.
Unfortunately, for whatever reason, the changes were not implemented on the dates
indicated in the employer’s communications. Mr. Tremblay was unable to see the effect
of the changes until December 12, 2017.
[38] On November 15th, the employer also told managers that there would be some
exceptions and that some employees would be processed in subsequent pay periods.
This introduced a material amount of uncertainty into the employer’s implementation plan
because no specific dates were provided. This further supports the idea that November
15th was simply another step in the plan’s implementation, and that the information that
Mr. Tremblay received that day was only part of the complete picture.
[39] It is important that complaints are filed promptly whenever that is possible, with the
intended consequence that matters are brought to the employer’s attention as soon as
possible. It is equally important that employees have all of the relevant facts and are in a
position to know whether they have a basis for filing a complaint. Complaints that are
speculative or premature are in no party’s best interests.
[40] It is clear from St. Amant and Hasted that it is easier to identify the point in time
when some matters “come to a head” in some cases than in others. In Mr. Tremblay’s
case, the situation was more fluid, and the working condition or term of employment,
which gave rise to his complaint, crystallized gradually. The information that the
employer provided on November 15th was important, but it was not the complete picture.
Mr. Tremblay could not be confident that he had all of the information to decide whether
there had been a change to his working conditions or terms of employment at that time
because other important information that the employer had promised had not yet been
made available. That information only became visible in WIN later, after an unexplained
delay. As a result, the matter did not “come to a head” until December 12, 2017, when
Mr. Tremblay was given all of the information that he had been promised, and he
understood how the changes had actually affected him.
15
Disposition
[41] To summarize, having carefully considered the evidence and the submissions of the
parties, the notice of proposal that Mr. Tremblay sent to the deputy minister on December
14, 2017 is timely. The employer’s preliminary objection is dismissed, and the matter will
proceed to a hearing on the merits.
Dated at Toronto, Ontario this 4th day of February 2020.
“Andrew Tremayne”
_______________________
Andrew Tremayne, Vice-Chair