HomeMy WebLinkAboutP-2019-2337.Beauchamp.20-11-16 Decision
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Commission des
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PSGB# P-2019-2337
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE OF ONTARIO ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Beauchamp Complainant
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE Marilyn A. Nairn Vice-Chair
FOR THE
COMPLAINANT
Samantha Beauchamp
FOR THE EMPLOYER
HEARING
Maria-Kristina Ascenzi
Treasury Board Secretariat
Legal Services Branch
Counsel
November 2, 2020
2
Decision
[1] This complaint alleges that the Crown as represented by the Ministry of the Solicitor
General (the “Employer” or “Ministry”) has failed to properly pay the Complainant, Samantha
Beauchamp. Ms. Beauchamp alleges that her pay is disproportionate to those employees
over whom she has supervisory authority and that the Ministry has discriminated against her
by improperly paying male co-workers more. She seeks to be moved to a higher rate of pay
and to receive a retroactive adjustment.
[2] The Employer raised two preliminary objections. It alleged first, that the complaint did
not disclose a violation of a working condition or term of employment, and second, that the
complaint was filed outside the statutory timelines. The Employer asserted that in either
case, the Board had no jurisdiction to entertain the complaint and asked that it be dismissed
at this stage. This decision deals with those preliminary issues.
[3] The following facts were agreed to or were not disputed.
[4] The Complainant began her employment with the Ministry as a fixed-term/unclassified
Correctional Officer (“CO”) at the Kenora Jail on May 23, 2017. Her annual salary was
$57,907.20.
[5] The Complainant then successfully competed for an Operational Manager (“OM”)
position at the Kenora Jail. She started work as a full-time classified OM on May 14, 2018 at
a salary of $64,468. She is an employee within the Management Compensation Plan
(“MCP”) and is excluded from the bargaining unit. On promotion the Complainant received a
12.32% increase in pay in an annual amount of $7070. On April 1, 2019, the Complainant
received a merit increase to $65,757. She currently remains at that salary.
[6] Exhibit 1 was the cover memo to the Complainant’s “Induction Package” as OM. The
Complainant acknowledged receiving it shortly after commencing work as an OM. That
document sets out the Complainant’s starting rate of pay as an OM at $64,468. The
Complainant stated that she had been told by Superintendent Walker and Deputy
Superintendent Harding at the jail that she would be receiving a rate of $74,000 but upon
receiving this document they told her she should be receiving more but that this was her rate
of pay. The Complainant signed the document on May 22, 2018, acknowledging that she
had “read and understood the above information”.
[7] Ms. Beauchamp gave her notice of proposal to file a complaint to the Deputy Minister
on November 23, 2019, eighteen months after her promotion to OM. She stated that it was
only after the Deputy Superintendent advised her that she could grieve that she filed a
complaint.
[8] The Pay on Assignment Operating Policy filed as Exhibit 2 was used by the Employer
to assign the complainant her starting pay rate as an OM. That policy states that pay on
promotion is “3% or an increase to bring the employee to the minimum rate of the new salary
range, whichever is greater”. At the relevant time, the MCP Salary Schedule provided a
starting OM salary of $57,398, which was lower than the Complainant’s salary as a CO. The
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Employer therefore placed her at the next level of the range, paying an annual rate of
$64,468.
[9] Other than asserting that male co-workers of the same rank received higher rates of
pay, the Complainant provided no substantiated particulars. The Employer advised that
there are seven full-time Sergeants (OMs) at the Kenora Jail. Five have between 15 and 30
years of service and are therefore placed higher on the salary grid. One male employee
hired to the Ministry close in time to the complainant and similarly promoted to OM similarly
received an OM start rate of $64,468.
* * *
[10] Ontario Regulation 378/07 made pursuant to the Public Service of Ontario Act (the
“Regulation”) allows a complainant to file a complaint about a working condition or term of
employment. However, the Board cannot create a term or condition of employment. Its role
is to provide enforcement of an existing term. As stated by the current Chair of the Board in
Ransome v. Ontario (Heath and Long Term Care), 2006 CanLII 42782 (ON PSGB):
Especially in the managerial setting, where contracts of employment are not collective,
but individual, it is not enough to say that it is fair or would be more fair if a grievor was
paid more, or not less, than some other employee. In order to succeed, a grievance
must show that the difference is improper, either because it offends a specific term or
condition of employment, or some more general principle of law. In that respect, the
grievor argued that the difference is discriminatory. However, there is nothing to
suggest that the differential in payment was for an improper reason, such as
discrimination on the basis of race, gender, religion or some other identified illegal
ground, or that the decision to pay the grievor in the manner that it has, was somehow
arbitrary, or in bad faith…What he argues is that there should be a term or condition of
his employment that would ensure he was paid better than those promoted or hired
later. This is a complaint about the absence of a term or condition of employment of
the kind he would like, rather than a request to remedy a breach of an identifiable
existing term or condition of his employment…What the grievor is claiming would be
tantamount to creating a term or condition of employment, rather than awarding a
remedy for the breach of an existing term or condition of employment.
***
To summarize, although I agree with the grievor that the Board has jurisdiction over his
complaint, it is clear that it is not a complaint that can succeed… because, even
assuming all the facts the grievor asserts as true, there is an insufficient basis in law,
to award the remedy requested. In other words, a prima facie case for the grievance
to succeed has not been established.
[11] The circumstances here are very similar to those in Ransome. The only term or
condition of employment that the Complainant points to in support of her complaint is her
rate of pay, assigned at the time she was promoted into the OM position. However, she
does not assert that she was not being paid at that rate. She asserts that her rate should be
higher. However, the complainant signed the induction package in May 2018 confirming that
she had “read and understood the above information”, including the starting salary identified
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on that document. Even assuming that any verbal representation might have relevance, it is
overcome by the fact that the Complainant signed this document without taking further timely
action.
[12] The evidence also does not support a finding of discriminatory treatment. The
differentiated rates as between colleagues at this jail are based on length of service. This
small sample of seven employees is insufficient to support the Complainant’s allegation that
the policy and resulting rates are discriminatory based on gender as OMs work across the
province at every institution and there is no evidence as to that broader application of the
policy. A male colleague of equal tenure was paid at the same rate as the Complainant.
There is no evidence other than the Complainant was being paid in accordance with the Pay
on Assignment Policy in accordance with the pay provisions applicable to the OM
classification.
[13] In any event, and notwithstanding the above, this complaint must be dismissed on the
basis that it fails to meet the timelines for filing a complaint. Sub-sections 8(1) and 8(4) of the
Regulation set out the time frames for initiating a complaint:
8. (1) A person who proposes to file a complaint shall give notice of proposal to
the following person or entity:
1. A complainant who, at the material time, worked in a ministry shall give
the notice to his or her deputy minister.
…
(4) The notice must be given within the following period:
…
3. For a complaint about a working condition or a term of employment, within 14
days after the complainant becomes aware of the working condition or term of
employment giving rise to the complaint. O. Reg. 378/07, s. 8 (4).
[14] In Hauth v Ontario, 2013 CanLII 74165, cited in Hasted v Ontario (Community Safety
and Correctional Services), 2016 CanLII 7473 (ON PSGB) the Board summarized the
caselaw and concluded that a complainant is not eligible to file a complaint unless the strict
filing requirements of the Regulation are met, failing which, the Board has no authority to
entertain the complaint:
[2] In three recent cases, the Public Service Grievance Board considered the legal
implications of the requirement imposed by section 8 of Regulation 387/07 to give
notice of a complaint to the Deputy Minister. In Jackson v. Ontario (Ministry of
Community Safety and Correctional Services) [2011] O.P.S.G.B.A. No. 8 the Board
made it clear that notice to the Deputy Minister was an essential precondition for it to
take jurisdiction over a complaint….
[3] A similar approach was taken by the PSGB in a second case, Muldoon v.
Ontario (Ministry of Community Safety and Correctional Services) [2011] O.P.S.G.B.A.
No. 13, where the complainant had failed to give the required notice in respect of
several complaints. The Board stated in that case:
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Given that the required notice was not given by the complainant in respect of
any of these complaints, the legal consequences are that the complainant
was not eligible to file these complaints with the Board so that these
complaints are not properly before the Board.
[4] … In the third and most recent case, St. Amant v. Ontario (Ministry of
Community Safety and Correctional Services) [2013] O.P.S.G.B.A. No. 2, the Board
dealt with the situation where notice had been given but that notice fell outside the
required time limits. The Board stated in that case:
… Given the mandatory language of the 14 day time limit set out in section
8, the Board must conclude that notice given within that time limit is also just
as much a precondition for it to assume jurisdiction over a matter as the
requirement to give the notice.
[5] … As the Board held in the St. Amant case, notice within that time limit is a
precondition for the Board to assume jurisdiction over a complaint. The late filing of
this notice means that the complainant was not authorized by that Regulation to file a
complaint with the result that the Board has no jurisdiction to deal with it.
[6] The language used to prescribe time limits in the new Regulation 378/07
leaves no doubt as to its mandatory nature. Given the mandatory nature of these time
limits and the lack of any express statutory authority to relieve against these
mandatory time limits, the Board has no power to alter the jurisdictional consequences
of a failure to comply with the time limits set out in section 8 of that Regulation. It is for
this reason that this complaint must be dismissed…the Public Service Grievance
Board, as a tribunal created by statutory enactments, can only stay within the limits of
these enactments.
(emphasis added)
[15] The Complainant moved into her new position as OM in May 2018 and was advised at
that time as to her rate of pay. She seeks to change that rate through this complaint.
Although she informally questioned her rate of pay with her manager at the time, she did not
give notice to the Deputy Minister until November 23, 2019, eighteen months later. The
Regulation requires that the notice be given within 14 days of becoming aware of the term of
employment giving rise to the complaint, not when the employee becomes aware of her
ability to file a complaint with the Board. Even assuming that the complaint asserts a breach
of a term of employment, this complaint is too late. The Board is without jurisdiction to
entertain the complaint.
[16] Having regard to all of the above, this complaint is hereby dismissed.
Dated at Toronto, Ontario this 16th day of November, 2020.
“Marilyn A. Nairn”
_______________________
Marilyn A. Nairn, Vice-Chair