P-2003-2687, P-2003-2800, P-2003-2810, P-2003-2904, P-2003-3020, P-2003-3021, P-2003-3023, P-2003-3024, P-2003-3025, P-2003-3026, P-2003-3027, P-2003-3028, P-2003-3029, P-2003-3031, P-2003-3032, P-2003-3033, P-2003-3034, P-2003-3035, P-2003-3036, P-2003-3037, P-2003-3038, P-2003-3039, P-2003-3042, P-2003-3045, P-2003-3046, P-2003-3076, P-2003-3077, P-2003-3085, P-2003-3087, P-2003-3102, P-2003-3143, P-2003-3230, P-2003-3290, P-2003-3460
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Tyrrell et al.
Grievor
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Donald D. Carter
Chair
FOR THE GRIEVOR
Andrew F. Camman Polishuk, Camman and Steele Barristers and Solicitors
FOR THE EMPLOYER
Sean Kearney Counsel Management Board Secretariat
HEARING
November 16, 2004,
Decision
This decision arises from a hearing scheduled for the purpose of providing the grievors opportunity to make oral argument as to why the Board should reconsider its earlier decision to dismiss certain complaints relating to pay for performance. One of these complaints was filed by Ann White, Operational Manager, Central East Correctional Center. Set out below are the stated grounds of this complaint and the settlement requested:
"1) The OPS corporate cap of 20% of employees who can receive an exceeds rating is arbitrary and discriminatory, a clear violation of the WDHP operating policy.
The employer has failed to follow it's own policy on the implementation of the MCP pay for performance plan by not completing the performance evaluations and learning plans/targets with OCR-OM16 employees as outlined in the policy.
The Employers failure to recognize OCR-0M16 who participated in the labor disruption by not awarding "exceeds all" rating and performance pay, is discriminatory and contradicts the Ministers statement of employee performance during the labor disruption in his open letter to managers in which he stated,(paraphrased), managers are to be commended for exceptional work and performance during this incident.
The Ministry's administration of the MCP pay for performance plan has created more and greater pay inequities between pay classes including but not limited to Acting OCR-0M16 managers and Confirmed OCR-0M16 managers, and between Confirmed OCR-0M16 managers and other Confirmed OCR-0M16 managers.
Settlement Required:
a) All OCR-0M16 managers who participated in the OPSEU labor dispute to receive "exceeds all" ratings and appropriate pay for performance for all hours worked.
b) Complete review of MCP P4P process to ensure that Confirmed OCR- OM16 managers salary is reflective of the responsibilities in relation to acting operational managers, regardless of their placement in the imposed salary grid as directed by the Ministry of Public Safety and Security.
c) Investigation into the demonstrated incompetence of the employer's inability to fairly and adequately administer a salary/pay program to OCR- 0M 16's in the Ministry of Public Safety and Security/Corrections Division."
This complaint was dismissed by this Board in a decision dated February 5, 2004. The decision stated:
"The Public Service Grievance Board has considered your complaint dated December 2, 2003.
The Public Service Grievance Board, as a statutory tribunal, can only deal with those complaints falling within its legislative mandate. This mandate is set out in Ontario Regulation 977, R.R.O. 1990, as amended by Ontario Regulation 59/03. Section 31(4) of that amended Regulation now reads:
No grievance shall include a complaint in respect of the following matters:
A complaint that a position should be classified,
A complaint that a position is in the wrong classification.
A complaint relating to a release from employment under subsection 22 (4.1) of the Act,
A complaint regarding the method of evaluating an employee's performance.
A complaint regarding the evaluation of an employee's performance.
A complaint regarding the compensation provided or denied to an employee as a result of an evaluation of his or her performance.
Your complaint on its face relates to either the method of performance evaluation, or the performance evaluation itself, or the compensation provided or denied as a result of a performance evaluation. For this reason it does not constitute a grievance over which this tribunal has jurisdiction and, accordingly, it must be dismissed.
Please be advised that this decision relates only to the jurisdiction of the Public Service Grievance Board to deal with your complaint and in no way constitutes a determination of the merits of your complaint."
Other complaints, worded in a similar manner as Ms. White's complaint, were considered by the Board and dismissed by the Board at the same time and for similar reasons. Subsequent to the dismissal of these complaints, the Board received a letter from Andrew F Camman of the law firm, Polishuk Camman & Steele, dated March 5, 2004, requesting that the Board reconsider its decisions to dismiss these complaints. The letter stated:
"We are writing on behalf of the grievors involved with a "group grievance" dealing with pay for performance issues, which were filed by the parties listed in Appendix "A". Please note that the list of grievors attached may be incomplete, and may change from time to time. We will attempt to update this list as much as possible, in order to keep it current. We would ask at this time that all of the identical grievances filed on pay for performance issues be consolidated and dealt with as a "group grievance".
We have reviewed your form letter which apparently is being sent to each of the grievors and which purports to dismiss the grievances based on a lack jurisdiction to hear the matter, pursuant to section 31(4) of Ontario Regulation 59/03.
Please note that a major complaint raised in this group grievance is the employer's failure to complete performance evaluations at all, which is in direct violation of the employer policies and procedures. The complaint is formed in large part on the fact that the employer is circumventing the policy by failing to complete performance appraisals, and therefore making pay for performance decisions outside of the mandated policy. It is our submission that this type of complaint falls squarely within the Board's jurisdiction and should therefore be heard by the PSGB. We would therefore ask you to reconsider each of the decisions to dismiss."
In a letter dated March 9, 2004, the Board wrote to Mr. Camman advising him that it would schedule a hearing for the purpose of providing the opportunity to make oral argument as to why the Board should reconsider its decision to dismiss the complaints referenced in his letter. Copies of this letter were sent to representatives of the employer. On May 20, 2004, counsel for the employer, Sean Kearney, wrote to the Board advising it that it was the employer's position that the Board had no jurisdiction to reconsider its earlier decisions. The letter stated:
"I am writing with respect to a number of grievances concerning pay for performance which were all dismissed on February 2, 2004 on your order due to the clear absence of jurisdiction on the part of the Board to hear such grievances.
I have recently been retained by the Ministry as a result of your letter of March 9 of this year which states that despite your earlier decisions, the Board will now schedule a hearing for oral arguments as to potential reconsideration of the Board's earlier decisions (see the attached copy of that letter and subsequent Notice of Proceeding). The decision to schedule a further hearing date is apparently in response to a request for reconsideration contained in a letter dated March 5, 2004 from Andrew Camman, counsel for the grievors seeking reconsideration. Unfortunately that request by Mr. Camman was not disclosed to the Ministry until after you had sent out your letter of March 9, 2004.
It is the position of the Ministry that your initial decisions must stand and that the PSGB is simply not authorized to reconsider its original decisions to dismiss for a number of reasons which I will set out below.
First, it must be emphasized that the Board has no statutory or legal authority to "reconsider" its earlier final decisions as the Board is clearly functus officio. It is settled law that once an arbitrator has made his award and reached a final conclusion, s/he cannot later alter that award, in the absence of statutory authority otherwise. This is particularly so when the award has been reduced to writing. Furthermore, s. 40(1) of Reg. 977 of the Public Service Act, the governing regulation for this Board, clearly states that the decision of the Board on a grievance is final, and is therefore not open to further consideration. As a result, any attempts to reconsider the Board's earlier decisions are void ab initio.
A similar bar against reconsideration applies to decisions involving the OPSEU and AMAPCEO bargaining units before the Grievance Settlement Board. As there is no discretionary authority whatsoever to grant reconsideration, the only recourse available to grievors who take issue with the determination of their claims by this Board is to file an application for judicial review before the Divisional Court pursuant to the Judicial Review Procedure Act.
This bar against reconsideration in the context of PSGB grievances contrasts markedly with other statutory regimes in this province. For example, both the Ontario Labour Relations Board and the Ontario Human Rights Commission are explicitly granted the statutory power of reconsideration via their governing statutes. However, those tribunals are very restricted in their ability to utilize their discretionary authority even with respect to requests for reconsideration of decisions rendered by investigators or human rights officers, rather than arbitrators. In addition, such requests are subject to extremely short timelines ( s. 37 of the Human Rights Code requires reconsideration requests to be filed within fifteen days of the decision). Conversely, as aforementioned, the Public Service Act in no way provides for the power of reconsideration and indeed its regulatory language clearly prohibits reconsideration of the Board's decisions.
Secondly, as emphasized in your decisions of February 5, the relevant, statutory and regulatory authorities explicitly underline that the PSGB has no jurisdiction whatsoever to hear or determine matters that relate in anyway to job performance. Regardless of whether these former grievors now allege a failure to properly complete performance evaluations or a failure to complete evaluations at all, the statute remains clear that grievances shall not include anything to do with the evaluation of job performance or the compensation provided or denied to an employee as a result of an employee's performance. The language as set forth explicitly in Reg. 59/03 could not be more clear:
(4) No grievance shall include a complaint in respect of the following matters:
A complaint that a position should be classified.
A complaint that a position is in the wrong classification.
A complaint relating to a release from employment under subsection 22(4.1) of the Act.
A complaint regarding the method of evaluating an employee's performance.
A complaint regarding the evaluation of an employee's performance.
A complaint regarding the compensation provided or denied to an employee as a result of an evaluation of his or her performance.
As a result, even the allegation contained in Mr. Camman's letter that the employer has failed to complete performance evaluations when making pay for performance decisions is clearly outside 'the jurisdiction of this tribunal. The manner in which pay for performance decisions were determined obviously relates to the method of evaluation of an employee's performance and the compensation provided or denied as a result of that method. While policies and procedures may call for evaluations to be performed in a certain manner, management is clearly insulated from grievances that attack the methodology utilized to arrive at any and all decisions regarding compensation. So, there is simply no legal or statutory foundation for this attack on the nature of the Pay for Performance process.
In light of the foregoing, we would now request that you confirm that the September 21 hearing date is unnecessary and will be cancelled. In the event that the Board still remains open to potential reconsideration of its earlier decision, the Ministry may be required to apply for judicial review for appropriate relief.
In the event that you have any questions or would like the employer to file a copy of any of the relevant jurisprudence, I would he happy to respond."
On June 4, 2004, the Board responded to this letter, advising Mr. Kearney that his letter had raised an important issue that would require full oral argument at the outset of the hearing that had been scheduled for this matter. This hearing was held on November 16, 2004, at which time Mr. Kearney renewed his objection that the Board had no jurisdiction to reconsider these matters and that the complaints, even as restated by Mr. Camman, fell outside the Board's jurisdiction. As well as restating the arguments that had been made in his earlier letter to the Board, Mr. Kearney pointed out that section 2 of the Board's Rules and Practice Notes provided that:
"Where the Board considers that a grievance does not make out a case for the orders or remedies requested, even if all the facts stated in the grievance are assumed to be true, the Board may dismiss the grievance without a hearing or consultation. In its decision the Board will set out its reasons."
This procedure is set out in greater detail in the Board's Practice Note # 1. It states:
"Upon receipt of a grievance the Public Service Grievance Board (the Board) may on its own volition or on the request of a party screen a grievance for jurisdiction before listing the grievance for hearing. When it appears on the face of the grievance application that the Board is without jurisdiction to hear the grievance because the grievor is not a public servant under the jurisdiction of a Deputy Minister (see P0037/92 Rampersad and WCB, P006/87Pelissero and Go Transit and P0045/93 Wells/Larson and the LCBO) or the Board is without jurisdiction to grant a remedy (see P0144/95 Laird et al, P0050/95 Blakney et al, P0024/99 Armstrong et al and P0025/99 Easto et al.), even if all the facts stated in the grievance application are assumed to be true.
The Board may dismiss the grievance without a hearing or consultation. However, when the Board deems it necessary, the Board may request and set a date for receipt of further particulars, information or submissions regarding the grievance.
When the Board requests and sets a date for receipt of further particulars, information or submissions regarding the grievance, the Board may:
Dismiss the grievance without a hearing, if the particulars, information or submissions regarding the grievance are not received the Board on the date set;
Decide that there is a need for a hearing to deal with any issue regarding its jurisdiction;
Request further submissions from the parties before deciding whether or not to hold a hearing;
Dismiss the grievance without a hearing when the Board has determined that it is without jurisdiction to hear or grant a remedy based upon its review of the particulars, information or submissions regarding the grievance."
The Board, according to Mr. Kearney, had properly followed its own procedures and, by operation of section 40(1) of Regulation 977, its decisions on the complaints in question must be treated as final. Moreover, since section 31 of the Public Service Act provided that the Statutory Powers Procedure Act did not apply to any proceeding or decision made under the Public Service Act or its regulations, the Board was not bound to follow the procedures for statutory decision makers set out in the Statutory Powers Procedure Act. Given that the Board had properly followed its own procedures and in doing so had reached a final decision, the Board then had no jurisdiction to reopen these matters in the absence of any express statutory power to reconsider a decision once it had been made. At this point, if the complainants considered the Board to have erred, their recourse was to seek judicial review. Mr. Kearney argued that this result was entirely consistent with the doctrine of functus officio that applied generally to arbitral tribunals such as the Public Service Grievance Board.
Mr. Camman argued that the Board had an inherent jurisdiction to control its own process. In view or the fact that the Board had made its decisions without receiving submissions from the complainants, it was well within this inherent jurisdiction to remedy that breach of natural justice by reconsidering its decision after providing the opportunity for oral argument - a procedure that would be far less onerous for complainants than seeking judicial review. According to Mr. Camman, this broad and liberal interpretation of our jurisdiction was required because of the power imbalance between the employer and the non-unionized employees who had brought the complaints. In support of such an approach, Mr. Camman referred to the decision of the Supreme Court of Canada in Machtinger v. HOJ Industries Ltd. (1992), 1992 CanLII 102 (SCC), 91 D.L.R (4th) 491. Mr Camman further argued that there was good reason for the Board to reconsider since, if the Board had provided an opportunity for submissions, the complainants would have argued that the employer had failed to evaluate them at all. This argument, according to Mr. Camman, was not excluded from the Board's consideration by section 31(4) of the amended Regulation.
These arguments raise important issues relating to the Board's processes for screening grievances. First, it is clear that it does not make good sense for a statutory tribunal to schedule a hearing of complaints that are on their face obviously fall well outside the tribunal's jurisdiction. It is for this reason that the Board formulated Practice Note # 1, serving notice to the parties that the Board may dismiss a complaint without further consultation or a hearing if that complaint clearly falls outside of the Board's jurisdiction. This procedure not only promotes efficient use of the Board's resources but also avoids giving complainants false hope that their claims may have jurisdictional merit. There is no question that the complaints as initially worded clearly fell outside the Board's jurisdiction and, even with the gloss added later by Mr. Camman, they would still fall outside the Board's jurisdiction. It is because of a clear lack of jurisdiction that the Board dismissed the complainants initially. Regardless of the most generous reading one could give to the complaints, they all related to the evaluation of the complainants' performance. It may be that, as alleged by the complainants, the evaluations process was flawed or incomplete but the fact remains that each of the complainants received a pay for performance component in their pay.
Even if Mr. Camman's later argument had some jurisdictional merit, a major hurdle to reconsideration is the lack of any legislative authority providing the Board with an express power to reconsider. The Board concludes that it does not have any inherent procedural power to reconsider a final decision. This Board, like any other statutory tribunal, is a creation of statute and does not possess inherent powers to fashion its own processes in the absence of a legislative mandate to do so. Once a complaint is dismissed the Board had exhausted its jurisdiction, leaving a complainant the options of either seeking judicial review or fashioning a fresh complaint that on its face could arguably fall within the Board's jurisdiction.
The Board, therefore, concludes that it does not have jurisdiction to reconsider its decisions in respect of these complaints and that its decisions to dismiss these complaints must stand.
Dated at Toronto this 7th day of December, 2004.