Provincial compensation enhancement has been a welcome benefit to direct support employees across the province. However, there continue to be lingering questions (and in some cases grievances) about how the PCE impacts obligations to excluded classifications of workers. Recent case law from the developmental services sector provides helpful clarification.
In Community Living Mississauga v. OPSEU Local 251, the union challenged an employer’s refusal to extend the provinces Temporary Wage Enhancement (TWE) program and the Permanent Compensation Enhancement (PCE) program to workers who were not eligible under these programs.
The two roles in question were Service Coordinators and Early Childhood Education Resource Consultants (ECEs).
The Employer reviewed the government’s guidance on TWE and PCE eligibility and determined that Service Coordinators were ineligible for both programs because their work primarily involved coordinating services and not direct personal care (like toileting, personal hygiene, medication administration, and so on). The guidelines for both TWE and PCE made provision of personal care as a primary job responsibility a key eligibility criteria. Moreover, the guidelines explicitly excluded roles with the primary responsibility of case management, which was the core function of the Service Coordinators in question.
The Employer also found that ECEs were excluded because their funding came from the Region of York, not MCCSS, which was a criteria of eligibility.
In the interests of equity and a good faith effort on behalf of all of their workers, the Employer did try to make wage enhancement as broad as possible. From October 1, 2020 until October 31, 2022, the Employer had provided an equivalent wage enhancement to both these roles out of its own funds while advocating with the government to expand PCE. The government declined and continued unfunded extension of the PCE was not financial viable beyond that date.
The Union of course grieved.
The Arbitrator hearing the matter dismissed the grievance and found that the Employer appropriately considered the guidelines for wage enhancement and the listed exclusions, and therefore acted reasonably and without arbitrariness.
This is very good for employers managing the implementation of the PCE and demonstrates that an Employer is entitled to rely on the terms, conditions and guidelines issued by the government. It also reaffirms that even where an employer extends a gratuitous benefit to employees, this will not create a continuing obligation to maintain that benefit absent a commitment to do so that was relied upon by the union in its negotiations for instance.
We will say as a final caution though that the outcome could be different if wage enhancement is incorporated into the terms of your collective agreement. We recommend caution in the manner of implementation into a collective agreement.
PooranLaw will continue to monitor the ongoing legal developments related to cases like these and its impact on the human services sector. If you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.
Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.
