P-2003-2373
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Mike Lee
Grievor
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Deborah J. D. Leighton
Vice-Chair
FOR THE GRIEVOR
Mike Lee
FOR THE EMPLOYER
Sean Kearney Senior Counsel Ministry of Government Services
HEARING
June 15, 2005
CONFERENCE CALL
July 22, 2005
WRITTEN SUBMISSIONS
February 13, 2006.
Decision
Mike Lee, an Operational Manager with the Ministry, filed a grievance with the board alleging a breach of his terms of employment and working conditions with regard to the employer’s policies on “pay on assignment to a position” and “pay for performance initiative.” This board in a decision dated February 5, 2004 dismissed the grievances. In that decision the board noted as follows:
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.
Upon receipt of this notice, Mr. Lee wrote to the board arguing that the grievance should not be dismissed for various reasons, but for the purposes of this decision noted that he had a separate grievance with regard to pay administration associated with payment on the assignment to a position. In his letter dated February 16, 2004 to the board he stated:
The first grievance refers to pay administration associated with payment on assignment to a position. It alleges a breach of the employer’s policies in that regard. As such, the grievance refers to working conditions and not, as you indicate, “either the method of performance evaluation, or the performance evaluation itself, or the compensation provided or denied as a result of a performance evaluation.” The grievance is filed under section 34(1) of the PSA Regulations and the restrictions found in section 31(4) do not apply.
Upon receipt of Mr. Lee’s letter to the board, the board scheduled a mediation that was not successful and, subsequently, a hearing date was set for June 15, 2005.
At the outset of the hearing in June, Sean Kearney, counsel for the employer, argued that given Mr. Lee’s grievance had been dismissed by the board, the board was functus and had no jurisdiction to entertain his grievances. Mr. Kearney relied on the decision in Tyrrell et al. and Ministry of Community Safety and Correctional Services (2004) P-2003-2687 et al. (Carter) where the board addressed the precise issue of whether the board had the power to reconsider an earlier decision and found that it did not. In its reasons for the decision, the board held:
It is clear that it does not make good sense for a statutory tribunal to schedule a hearing of complaints that 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.
On a specific question on whether or not the board had the power to reconsider a previous decision the board held 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 option of either seeking judicial review or fashioning a fresh complaint that on its face could arguably fall within the board’s jurisdiction.
The Tyrrell et al. decision addressed multiple grievors with grievances relating to evaluation and pay for performance. The board found that indeed on its face, even after hearing submissions by the grievors’ counsel, that it would not have jurisdiction to hear their cases.
However, in Mr. Lee’s case, a second part of his grievance related to “pay on assignment.” Since a number of grievances relating to pay on assignment, Harris et al., were scheduled to be heard by the board on November 2, 2005, before Kathleen G. O’Neil, the Ministry agreed to hold Mr. Lee’s grievance in abeyance pending the decision in that case. Should the board find that it had jurisdiction to deal with the kind of the grievance Mr. Lee was bringing with regard to pay on assignment, then there may have been an opportunity to look at a mediated settlement for Mr. Lee on that issue. However, if it was clear from the board’s decision in Harris et al. that there was no jurisdiction to hear such a case, then the issue was clearly finished.
Harris et al. and Ministry of Community Safety and Correctional Services, P-2003- 1479 et al. was released in December 2005. In January the board asked for submissions from counsel for the employer and Mr. Lee as to their view of the status of his grievance, given the decision in Harris et al. Having carefully reviewed the submissions of both parties, I have come to the conclusion that Mr. Lee’s grievance cannot go forward. The board in Harris et al. considered the type of claim made by the grievor here, that when promoted to management an OM-16 should be entitled to more than the minimum three percent increase. The board held:
In the board’s view the portion of the grievances claiming more than three percent on promotion should be dismissed because, even asserting the fact asserted to be true and provable, no arguable breach of the pay on assignment policy has been shown. There is no assertion that any of the grievors were paid something less than three percent or any greater increase necessary to bring the employee to the minimum of managerial grid on promotion. It is the board’s view that in order to have a viable grievance to the effect that an employee should have received more than three percent on promotion, a grievor would have to demonstrate that he or she needed more than three percent to get to the minimum of the managerial pay scale and did not receive it, which is not the case for any of the grievors in the group dealt with in this decision. On this point the policy language is clear. As written, the only entitlement to a pay increase in the section of the pay on assignment policy quoted above is in the first sentence: “For management employees, pay on promotion is three percent or an increase to bring the employee to the minimum rate of the new salary range, whichever is greater.” Increases greater than three percent necessary to bring the employee to the minimum rate of the new salary range are allowed, but there is no other entitlement to an increase, greater than three percent or to a meeting to consider such an increase to be found in the language set out above. More specifically, the fact that the policy sets out who must approve any increase greater than three percent does not create any such entitlement.
In Mr. Lee’s response to Mr. Kearney’s submission he specifically objects to the fact that he had no meeting to decide whether or not he was entitled to more than three percent on his pay on assignment. Since the board has squarely dealt with this issue, I find there is absolutely no merit in Mr. Lee’s grievance here.
Moreover, I am bound by Tyrrell et al., which says the board does not have the power to reconsider a decision that has already been made. In this case the grievances were dismissed on February 5, 2004 and, therefore, there is nothing left to do but direct the Registrar to close this file.
Dated at Toronto this 21st day of March, 2006.