HomeMy WebLinkAboutP-2021-0235.Kurczak.21-12-17 Decision
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Commission des
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Tél. : (416) 326-1388
PSGB# P-2021-0235
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE OF ONTARIO ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Kurczak
Complainant
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The Crown in Right of Ontario
(Ministry of the Solicitor General)
Employer
BEFORE Marilyn A. Nairn Vice Chair
FOR THE
COMPLAINANT
Self Represented
FOR THE EMPLOYER
Erika Montisano
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING December 10, 2021
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Decision
[1] Cathy Kurczak (the “Complainant”) is employed by the Ministry of the Solicitor
General (“SOLGEN” or the “Employer”) as a full-time Sergeant at the Vanier
Centre for Women (“Vanier”). Her Complaint seeks a remedy providing her with
an increase to her compensation equal to that received by correctional officers
represented by OPSEU, retroactive to when she began an Acting Sergeant
assignment in 2018. Her Complaint further seeks to be placed at a wage rate 3%
above subordinate staff.
[2] The Complainant alleges that the Employer denied her the opportunity to step back
into her correctional officer (bargaining unit) position in order to receive the wage
increases granted to correctional officers and then return to her Acting Sergeant
assignment, bringing that increase in her wage rate with her. The Complainant
asserts that she was told by her Deputy Superintendent in 2018 that she could not
step down but would be required to remain in the acting position in order to
subsequently obtain a full-time permanent Sergeant’s position. In the result, the
Complainant remained in her acting assignment and, in 2019, successfully
competed for a permanent Sergeant’s position.
[3] Subsequently, in January 2021, an Acting Sergeant at Vanier stepped down and
returned to her correctional officer position, and thereby obtained the wage
increase accorded to correctional officers. The Employer shortly thereafter posted
an expression of interest for an Acting Sergeant’s position at Vanier. That same
individual was the only qualified applicant to apply and so was returned to the
Acting Sergeant role in early March 2021, apparently retaining the correctional
officer increase to her wage rate.
[4] Based on that event, the Complainant filed both her notice of proposal to her
Deputy Minister and this Complaint to the Board on March 12, 2021. In her
submissions to the Board at the hearing, she asked to be treated fairly and
equitably and asserted that she was penalized from receiving her correctional
officer increase. She also asserted that it was a reprisal against her not to be
afforded the opportunity to continue to advance had she stepped down. She
asserted that the institution was perpetually understaffed by managers such that
an expression of interest could also have been posted in 2018.
[5] The Employer raised a number of preliminary objections to the Complaint
proceeding. Prior to the hearing, Employer counsel provided the Complainant with
a written copy of the Employer’s submissions as well as copies of the caselaw on
which the Employer intended to rely. That material was also provided to the Board
and will not be repeated at length here.
[6] The Employer relied on the following decisions: Allen et al. v. Ontario (Community
Safety and Correctional Services) (O’Neil) 2009 CanLII 43639 (ON PSGB); Hugh
MacDonald et al. v. Ontario (Community Safety and Correctional Services)
(O’Neil), 2014 CanLII 76836 (ON PSGB); Garratt et al. v. Ontario (Health and
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Long-Term Care) (O’Neil) 2005 CanLII 53194; Ransome v. Ontario (Health and
Long-Term Care) (O’Neil) 2006 CanLII 42782 (ON PSGB); Mark Woodward et al.
v. Ontario (Community and Social Services) (O’Neil) 2006 CanLII 91921 (ON
PSGB); St. Amant v. Ontario (Community Safety and Correctional Services)
(Carter) 2013 CanLII 4673 (ON PSGB); Laforest v. Ontario (Solicitor General)
(Morgan) 2020 CanLII 10543; Taylor v. Ontario (Community Safety and
Correctional Services) (Devins) 2017 CanLII 65620; Hasted/Berezowsky v.
Ontario (Community Safety and Correctional Services) (Nairn) 2016 CanLII 7473
(ON PSGB); Morris v. Ontario (Community Safety and Correctional Services)
(Nairn) 2018 CanLII 109220 (ON PSGB); Doyle v. Ontario (Municipal Affairs)
(O’Neil) 2017 CanLII 52705 (ON PSGB); Bourgeault el at. v. Ontario (Community
Safety and Correctional Services) (O’Neil) 2013 CanLII 84294 (ON PSGB).
[7] Notwithstanding the Employer’s preliminary objections, I provided the Complainant
with the opportunity to put before the Board all of the factual information upon
which she relied and heard her submissions regarding her Complaint, following
which the Employer made its submissions on the preliminary issues. After the
Employer’s submissions, the Complainant was provided the opportunity to
respond to the Employer’s objections and was again asked if there was any other
factual information or submission she sought to put before the Board. I thereby
received all of the Complainant’s evidence, her position in respect of those facts,
and her submissions in response to the Employer’s preliminary matters. It remains
necessary to deal with those Employer objections as they relate to the Board’s
jurisdiction to entertain the Complaint.
[8] The Employer asserted that the Complaint was untimely in two respects; first, that
the Complaint was filed beyond the mandatory 14-day time limit for filing a
complaint, and second; the Complaint was filed with the Board before the expiry
of the dispute resolution period, having been filed the same day as the notice of
proposal to file a complaint was given to the Deputy Minister. The Employer
asserts that, as a result of either of these circumstances, the Board is rendered
without jurisdiction to entertain the complaint. Those submissions and fulsome
references to the caselaw are set out in the Employer’s written materials.
[9] In light of the facts, I am obliged to find that this complaint is untimely. The caselaw
is clear that the time limits set out in Ontario Regulation 378/07 (the “Regulation”)
made pursuant to the Public Service of Ontario Act (the “PSOA”) are mandatory
and that a failure to meet those time limits leaves the Board without the authority
to consider a complaint. This Board has a different and considerably more limited
authority than its sister tribunal, the Grievance Settlement Board, that deals with
disputes brought by unionized public service employees, including correctional
officers. This Board is created pursuant to the Regulation and is limited in its
powers by that Regulation.
[10] Excluded staff, including Sergeants at correctional facilities, are eligible to file a
complaint within the time limits set by the Regulation. A failure to meet those time
limits renders them ineligible to file a complaint. In other words, a complaint filed
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outside the time limits is not a valid complaint. See generally, St. Amant, and
Taylor, both supra. In this case, the Complainant’s concern that she would be
denied or at least delayed in the opportunity to move forward as a Sergeant should
she move back to her correctional officer position in order to obtain wage increases
awarded to correctional officers, was known to her in 2018. At that time, she
remained a member of the OPSEU bargaining unit, working in an acting capacity
as a manager. Her terms and conditions of employment were those found in the
collective agreement negotiated between OPSEU and the Employer. The
Complainant could have filed a grievance if she felt there was a violation of the
terms of the collective agreement. As of 2019, when she moved to a permanent
Sergeant’s position, a position excluded from the bargaining unit, she accepted an
individual contract of employment. A wage rate would have been established at
that time, and, having accepted the position, that wage rate would necessarily also
have been accepted. There is no evidence of a complaint being made at that time.
[11] It was only in 2021 that she filed her complaint, when the Complainant learned of
a co-worker, working in an acting capacity, stepping back to their correctional
officer position in order to increase their wage rate and subsequently being
returned to an Acting Sergeant’s position. However, that is not the triggering event
to her becoming aware of the circumstances of her complaint. Section 8(4)3 of the
Regulation has been interpreted to mean that a complaint must be filed within 14
days of the date of the circumstances giving rise to the complaint, that is, the point
at which one has the relevant information so as to crystallize their concern. See
the comments in Hasted/Berezowsky at para. 22 supra. In 2018 the Complainant
raised the issue of returning to her correctional officer position in order to obtain
the wage increase while wanting to be able to then return to an Acting Sergeant
role. The Employer advised her of its position. The Complainant had the
information she required in order to file a complaint at that time. However, she did
not. Nor could she, as the Complainant remained a member of the bargaining unit
and subject to the terms of the collective agreement. To file a complaint in 2021
is beyond that 14-day mandatory time limit. A failure to meet that time limit renders
the Board without jurisdiction to entertain the complaint.
[12] In any event, the Complaint is also untimely because it was filed before the expiry
of the dispute resolution period. Section 9 of the Regulation provides that a
complainant is not entitled to file a complaint to the Board until after the expiry of
the dispute resolution period. The Employer must be given the opportunity to
respond to the complaint. Whether the Employer chooses to exercise that
opportunity may affect the duration of the dispute resolution period. However, they
must be given the opportunity. A complaint filed with the Board on the same day
that the notice of proposal to file a complaint is given to the Deputy Minister
precludes that opportunity and is rendered untimely by application of section 9 of
the Regulation.
[13] In the result, this Board is without the jurisdiction to entertain this Complaint and it
must be dismissed.
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[14] The remainder of this decision is therefore unnecessary and obiter but is provided
for the benefit of both parties. The Regulation provides a limited window for
managerial employees to bring complaints against the Employer. In this case, the
Complaint concerns the Complainant’s wage rate, as the remedy sought seeks a
change to her wage rate. The Regulation allows, inter alia, for a complaint to be
filed concerning an alleged breach of a term or condition of employment. Which
leads to the third objection brought by the Employer, that, even assuming the facts
asserted by the Complainant as true, she has not established that there is a term
or condition of her employment relating to the matters in her Complaint, such that
there can be no breach of any term or condition of her employment. The Employer
asserted that the Complaint does not make out a prima facie case for the remedy
requested.
[15] As noted earlier, the Complainant provided all of her evidence and made her
submissions with respect to her Complaint. No additional facts were provided other
than what were already contained in her written Form 1 application and a
supplementary Appendix. The Employer did not dispute what the Complainant was
told (although denying it was a threat) but did provide and relied on the additional
information regarding the co-worker’s return to an Acting Sergeant position
pursuant to an expression of interest, after having returned to their correctional
officer position. Relying on that information arguably takes this consideration out
of the realm of determining whether or not the Complaint makes out a prima facie
case as that information was not pled by the Complainant.
[16] However, I am satisfied that the Complaint cannot succeed. There is no allegation
that the Employer breached an identified term or condition of the Complainant’s
employment. The assertion is that it is unfair that the Complainant’s wage rate
does not reflect wage increases granted to correctional officers while the
Complainant was working in an acting managerial capacity and that the
Complainant may be earning less than her subordinates.
[17] That issue has been raised and dealt with by this Board on a number of occasions
and the Board has consistently stated that it has no authority to set wage rates.
There is no guarantee that managers earn more than those they supervise. It is
also the case that Sergeants are paid at different rates within their classification.
While those results may appear to be ‘unfair’, that is not the test. Unlike employees
in the bargaining unit, excluded employees have an individual contract of
employment. It is that contract that establishes the applicable terms and conditions
of employment. There was no assertion that the Complainant’s contract of
employment required or entitled her to obtain increases afforded to bargaining unit
staff, or that her contract of employment required that she be paid in excess of
those she supervises.
[18] In Garrett et al, supra, at page 7, the Board noted:
Despite sympathy for the plight of managers dealing with frustration over their
level of pay and eroded pay differentials, the PSGB has consistently declined to
entertain grievances where the Board is being asked to review the level of
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compensation or classification, as it is the exclusive function of the Civil Service
Commission to set levels of compensation.
[19] In Hugh Macdonald et al., supra, the Board stated:
[17] As noted in earlier decisions of this Board, in order for the Board to
be able to award a remedy to a complainant, there must first be an existing term
or condition of employment related to the facts complained of, something that is
part of the complainant’s contract of employment. This is something more than
a belief that something is unfair, no matter how deeply held. Secondly, there
must be a breach of that term or condition of employment, and thirdly, there
must be a link between that breach and a remedy that the Board is empowered
to give. See, in this respect: Antle v. Ontario (Ministry of Community Safety and
Correctional Services), 2006 CanLII 30741 (ON PSGB); and Allen v. Ontario
(Community Safety and Correctional Services), 2009 CanLII 43639 (ON PSGB).
[18] Where there is no term or condition of employment, or overriding
legal principle preventing the action complained of, the Board has no basis to
find a breach or award a remedy…
[20] In James Allen et al, supra, the Board noted at paragraph 12:
…The Board is not in a position to “fix” all complaints that come before it.
Specifically, it is not given the authority to set terms and conditions of
employment, or change or add to them because an employee or a group of
employees does not like them, unless the terms set by senior management are
unlawful, or in breach of some other contractual term of employment. Here, the
grievors have not succeeded in establishing any term or condition of
employment that has been breached. In the result, the Board is not able to grant
any remedies,…Therefore, there is no basis on which it would be appropriate to
allow the matter to proceed further.
[21] And, in Kevin Ransome, supra, the Board stated at pages 7-8:
…[this is] a complaint about the relationship of the grievors’ wages with those
of the bargaining unit positions who report to him, and the fact that the rate of
increase in the managerial ranks had not kept up with those of the bargaining
unit…The claim as written is not one the Board is in a position to grant… as the
Board has no power to award wage increases, only to enforce established terms
and conditions, including those dealing with pay. If the grievor had shown that
the employer had agreed to pay a wage increase that he did not receive, then
the Board could enforce the agreed wage increase. The material before me
does not establish such an agreed or promised wage increase, nor one that he
is entitled to on more general principles of fairness.
…
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.
(emphasis added)
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[22] In that latter context, it was alleged that it was unfair and a reprisal that the
Complainant could not return to her correctional officer position to claim those
wage increases without jeopardizing her opportunities as a manager. Any right to
return to her correctional officer position existed only while it remained her “home
position”, until such time as she was awarded the permanent Sergeant’s position
in 2019. During that time, the Employer was not interfering with the employee’s
ability to return to their home position. Should an individual choose to do so, they
would be entitled to whatever wage rate the collective agreement provided them
as a correctional officer. However, the Employer determined that it would not then
support such individual’s return to an acting managerial assignment. When asked
at the hearing to identify why that Employer exercise of discretion constituted a
reprisal, the Complainant stated that it represented a disadvantage to her, a loss
of opportunity. Without more, that general exercise of discretion does not constitute
a reprisal. There was no allegation that the Complainant was singled out for
retribution or that the Employer’s exercise of discretion was otherwise improper.
The Complainant could, as she did, choose what mattered most to her, a higher
wage or experience in a managerial position. She chose the latter and was
subsequently successful in obtaining a permanent Sergeant’s position.
[23] These assertions do not reflect any inequality or unfairness based on any
inappropriate ground. The only fact that suggests differential treatment is with
respect to the co-worker and the uncontradicted circumstances applicable to that
co-worker are both different and after-the-fact. The co-worker moved back to a
correctional officer position in 2021, apparently taking a chance with respect to her
future managerial prospects. The Complainant chose a different path. There is
nothing in the Complaint or in the representations from the Complainant at the
hearing that suggest otherwise. She simply asserted that the Employer is always
short-staffed of Sergeants and could have proceeded with posting an expression
of interest and awarding her the role (presumably regardless of whether other
qualified candidates had expressed interest), something that the Employer is not
required to do as a function of its employment contract with the Complainant
(highlighting the timeliness issue and the fact that after 2019 the Complainant’s
terms and conditions of employment were no longer governed by the terms of the
collective agreement).
[24] In summary, the complaint does not allege a breach of an existing term or condition
of employment, but in effect, seeks to have the Board establish a term of
employment that as a Sergeant, the Complainant is entitled to receive the wage
increases accorded to members of the bargaining unit. The Board has no
jurisdiction to create terms of employment, only to enforce existing terms. In the
absence of an allegation identifying a term of employment that would warrant the
remedy sought, there is no basis in law to award the remedy requested.
[25] In any event, this complaint is untimely and must therefore be dismissed.
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[26] Having regard to all of the above, this Complaint is hereby dismissed.
Dated at Toronto, Ontario this 17th day of December, 2021.
“Marilyn A. Nairn”
________________________
Marilyn A. Nairn, Vice-Chair