Public Service Grievance Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396
Commission des griefs de la fonction publique Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396
P-2007-3390, P-2007-3596, P-2007-3597, P-2007-3599, P-2007-3635, P-2007-3744, P-2007-3842, P-2007-3868
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Szewczuk et al
Grievor
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Donald D. Carter
Vice-Chair
FOR THE GRIEVOR
Bob Szewczuk
FOR THE EMPLOYER
Omar Shahab Counsel Ministry of Government Services
HEARING
September 9, 2008.
Decision
These grievances allege that the employer did not follow its own operating procedures in respect of compensation paid to the grievors for the period from April 1, 2006, to March 31, 2007. This Board had earlier sought written submission on its jurisdiction to deal with these grievances and, after considering these submissions, scheduled this hearing to hear full argument on whether these grievances fell within its mandate.
The jurisdiction of the Public Service Grievance Board to deal with complaints about working conditions or terms of employment has been circumscribed by section 4(2) of Regulation 378/07. It reads:
(2) The following matters cannot be the subject of a complaint about a working condition or about a term of employment:
The term or duration of the public servant’s appointment to employment by the Crown.
The assignment of the public servant to a particular class of position.
A dismissal without cause under subsection 38 (1) of the Act or a matter relating to such a dismissal.
The evaluation of a public servant’s performance or the method of evaluating his or her performance.
The compensation provided or denied to a public servant as a result of the evaluation of his or her performance.
The effect of section 4(2) is to preclude the Board from dealing with any complaints falling within the scope of that provision regardless of the merits of the complaint itself. Of particular relevance to these grievances is that part of section 4(2) dealing with performance evaluation and the compensation resulting from performance evaluation.
The grievors submitted that these grievances were not about their performance evaluations, or the manner in which they had been conducted. Rather, their grievances related to the fact that the employer had, without notice, altered its operating procedures for the fiscal year 2006-07 in that the compensation resulting from their performance evaluations had not been incorporated into their compensation for that year but rather rolled into their compensation for the next fiscal year. This process had had an adverse effect on their pay level for the fiscal year 2006 -07, carrying further adverse implications for the calculation of their pension. Even though compensation resulting from their performance evaluations was reflected in the 6.75% increase in their grid for fiscal year 2007-08, the net result of this process, as the employer conceded, was to produce a less favourable result for the grievors’ pension calculation than if the employer had followed its prior practice of making an annual adjustment. This practice had been set out in the manual titled “Management Compensation Plan, Pay for Performance Operating Procedures, Effective: April 1, 2006”. The relevant portion reads “…The award is payable as an adjustment to the salary effective April 1 of the new fiscal year, based on the salary as of March 31”.
The employer acknowledged the understandable frustration of the grievors because of the failure to follow the procedure set out in the manual, but submitted that the Board nevertheless had no jurisdiction to rectify what was frankly acknowledged as a labour relations problem.
Counsel for the employer submitted that the essence of these complaints related to the compensation resulting from a performance evaluation, and clearly fell with the term “compensation provided or denied to a public servant as a result of the evaluation of his or her performance”. Given the nature of these grievances, counsel submitted that the Board had no jurisdiction to deal with them regardless of how meritorious that these grievances might appear to be.
The Board has given the submissions from both parties its careful consideration and, with some reluctance, has concluded that it is without jurisdiction to deal with these grievances. The Board has reached this decision reluctantly because the grievors do have a strong grievance on the merits. Each of the grievors performed well in their job and received positive evaluations yet, without prior notice to them, the employer changed its process for providing compensation for their performance with the result that the calculation of their pensions has been adversely affected. Despite the merit of these grievances, however, their essence is about the compensation provided to the grievors as a result of their performance evaluation. This compensation did not have as favourable effect for them as had compensation provided in previous cycles but this does not alter the fact that the issue is still about compensation provided as a result of a performance evaluation. The whole thrust of these grievances is about the employer’s failure to follow the pay for performance operating procedures set out in the manual for the payment of the performance award.
In these circumstances, the Board can reach no conclusion other than these are complaints about “the compensation provided or denied to a public servant as a result of the evaluation of his or her performance”. Section 4(2) of Regulation 378/07 clearly places such matters outside the jurisdictional reach of this Board, and for this reason these grievances are dismissed.
Dated at Toronto, this 16th day of September, 2008.
Donald D. Carter, Chair