P-2007-2921

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

James Allen et al

Grievor

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Kathleen O’Neil

Vice-Chair

FOR THE GRIEVORS

James Allen and Dennis Burt Grievors

FOR THE EMPLOYER

Cathy Phan Ministry of Government Services Counsel

WRITTEN SUBMISSIONS

March 3, 2009.

Decision

1This decision deals with the employer’s motion asking for the dismissal of a grievance submitted by a group of thirteen Operational Managers, claiming that the employer has failed to provide adequate training to complete their performance management plans.

2The employer’s motion, made in writing, asks that the matter be dismissed for want of jurisdiction, in that the grievance does not point to any statute, regulation, past practice, policy or directive which would support a claim that there is any term or condition of employment entitling the grievors to the training requested. Further, the employer asserts that the subject matter of the grievances relates to the evaluation of the grievors’ job performance or the method of evaluating that performance, and is thus beyond the Board’s jurisdiction, as set out in section 4(2) of Regulation 378/07 under The Public Service of Ontario Act. The employer submits that the grievors are essentially claiming that if the employer had provided training on how to complete their performance management plans, the grievors may have prepared Performance Management Plans which would have resulted in their receiving higher compensation by way of pay for performance.

3The Board requested submissions from the grievors in reply to the written motion, advising them that the Board would decide whether further hearing or submissions were necessary after receiving them. Having carefully reviewed the material filed by both parties, the Board is of the view that the matter can and should be dealt with on the material now before it.

4The employer’s motion makes reference to Section 4 of Regulation 378/07 under the Pubic Service of Ontario Act, 2006, which provides as follows:

4. (1) Subject to subsection (2), a public servant who is aggrieved about a working condition or about a term of his or her employment may file a complaint about the working condition or the term of employment with the Public Service Grievance Board,

(a) if the public servant is eligible under sections 5 and 7 to file such a complaint;

(b) if the public servant gives notice in accordance with section 8 of his or her proposal to file the complaint; and

(c) if the public servant complies with the filing requirements set out in section 10.

(2) The following matters cannot be the subject of a complaint about a working condition or about a term of employment:

1. The term or duration of the public servant's appointment to employment by the Crown.

2. The assignment of the public servant to a particular class of position.

3. A dismissal without cause under subsection 38 (1) of the Act or a matter relating to such a dismissal.

4. The evaluation of a public servant's performance or the method of evaluating his or her performance.

5. The compensation provided or denied to a public servant as a result of the evaluation of his or her performance.

Section 9 of the Board’s Rules provides as follows:

Where the Board considers that a complaint does not make out a case for the orders or remedies requested, even if all the facts stated in the complaint are assumed to be true, the Board may dismiss the complaint without a hearing or consultation. In its decision the Board will set out its reasons.

The grievor’s claims

5For the purposes of this motion, the facts asserted by the grievors are assumed to be true and provable, but no findings of fact are made. In their grievance, the Operational Managers indicate that the employer set time lines for completing the updating of their own Performance Management Plans, and advised them that failure to meet those time lines could have an adverse effect on their performance rating. The grievors state that these comments have increased their stress and frustration, and that the employer has been made aware of their concerns. They state that they perceive the comments concerning the time lines as threats.

6The grievance states that the grievance is not a complaint about the method of evaluation their performance or the compensation provided or denied as a result of the evaluation of their performance. As remedy, they ask for the following:

1. Proper training be given to all Operational Managers when policies are changed and/or new policies are implemented that directly or indirectly impact on the Operational Managers in performance of their duties and responsibilities.

2. The employer immediately cease and desist form making comments that operational managers perceive to be threats of reprisal.

3. Time be allotted for Operational Managers to complete assigned tasks and documentation.

4. No reprisals by employer in regards to submission of this complaint.

5. Operational Managers be reimbursed for any costs that may be incurred in regards to this grievance.

7The grievors state in their written submissions in response to the motion to dismiss that the employer has made it a term and condition of employment to complete their Performance Management Plans within the time lines set by the employer, failing which there would be adverse affects on the managers. Further, they state that the employer has also indicated that performance management is an essential element of every employee’s responsibilities, which leads them to believe that completion of the Performance Management Plan would be a condition of employment also.

8The grievors also make reference to provisions of the Performance Management Operating Policy, to the effect that Performance Plans are linked to the ministry’s business objectives, that senior management provides support for the successful implementation of performance management, which is reflected in the appropriate training and skills development for the manager.

9The grievors also submit that the Deputy Minister has the right to determine training and refer to The Crown Employee’s Collective Bargaining Act, s. 18(1) and to Sections 17 and 18 of Regulation 977 under The Public Service of Ontario Act, Part III entitled Staff Development Programs. The grievors mention various training provided by the employer in the past on subjects such as use of force, inmate escort and human rights, asserting that past practice has been that when any new computerized program or policy is implemented, the employer provide classroom training to staff who are impacted.

The grievors stress that they do not consider the grievance to be about performance evaluation, but to be about training.

10I have considered all the material before me, on the assumption that the facts asserted by the grievors are true and provable. For the following reasons, it is my finding that the matter should be dismissed without further hearing, partly on the basis of jurisdiction, and partly because the material filed does not make out a case for the remedies requested.

11Starting with jurisdiction, the regulation set out above makes it abundantly clear that the Board has no jurisdiction over complaints that relate to the evaluation of a public servant's performance or the method of evaluating his or her performance. The grievors assert that this complaint is not about evaluation, but about training. I accept that training is central to the remedy requested, but there are aspects of the grievance that are very clearly related to the method of evaluating the Operational Manager’s performance. Specifically, the portions of the complaint which assert that by setting a time line for Operational Managers to complete their own Performance Management Plans, and indicating that failure to meet that time line could negatively impact their performance appraisals, senior management is “threatening” them, directly relate to the method of evaluating their performance. The only content to the alleged threat is that it will impact performance appraisal. Therefore, for this reason alone, this portion of the grievance should be dismissed for want of jurisdiction. As well, it appears that the Performance Management Plans themselves are part of the overall method of evaluating their performance, so that anything related to them would be beyond the Board’s jurisdiction as well.

12Further, the Board’s Rule 9 makes it clear that if a complaint does not make out a case for the orders or remedies requested, the matter may be dismissed. In legal terms, this is referred to as lack of a prima facie (a Latin term meaning at first view) case. From a jurisdictional point of view, the Board is within its mandate to determine if a complaint makes out a case for the remedies claimed. However, in order to make out a case for the remedies requested, a complaint has to set out enough facts to establish that some term or condition of employment has been breached, and that some remedy is owed to make up for that breach. Establishing a viable case can be thought of as a chain with at least three links: first, grievors must establish an existing term or condition of employment; second, they must establish that the employer has breached that term or condition of the employment contract, and third, they must establish that there is a connection between the breach and the remedy requested, or at the very least, some remedy within the Board’s jurisdiction. 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, let alone the ones requested, as detailed further below. Therefore, there is no basis on which it would be appropriate to allow the matter to proceed further.

13In their written submissions, in answer to the employer’s submission that their complaint disclosed no relevant term or condition of employment, the grievors made a number of statements as to where one might find terms and conditions of employment. To start, they referred to The Crown Employees Collective Bargaining Act. Although this legislation has great relevance to any unionized employees whom the Operational Managers may supervise, it has nothing to say about their own terms and conditions of employment. More pertinent was a reference to Sections (17) and (18) of Regulation 977, under The Public Service of Ontario Act. Originally established under the now repealed Public Service Act, that regulation was revoked on December 20, 2007, but was in effect when the grievance was filed. It reads as follows:

PART III STAFF DEVELOPMENT

17. The deputy minister of a ministry,

(a) shall plan and provide for the employees of the ministry staff development programs for the continued efficient and effective operation of the ministry; and

(b) shall provide to the Commission reports on the staff development programs of the ministry or on such aspects of the programs as the Commission may specify at such times as the Commission may require the reports. R.R.O. 1990, Reg. 977, s. 17.

18. (1) Where a deputy minister assigns a public servant to participate in a staff development program,

(a) that is conducted by a ministry or by the Commission; and

(b) that, in the opinion of the deputy minister, will provide the public servant with skills or knowledge of value to the public service,

the assignment shall be in accordance with subsections (3) and (4). R.R.O. 1990, Reg. 977, s. 18 (1).

(2) Where a deputy minister assigns a civil servant to participate in a staff development program,

(a) that is not conducted by a ministry or by the Commission; and

(b) that, in the opinion of the deputy minister, will provide the civil servant with skills or knowledge essential to the performance of his or her duties, the assignment shall be in accordance with subsections (3) and (4). R.R.O. 1990, Reg. 977, s. 18 (2).

(3) The deputy minister shall authorize payment by the ministry of an amount equal to the tuition fees and all or part of any expenses that may be specified by the deputy minister in connection with the participation of the civil servant or public servant in the program. R.R.O. 1990, Reg. 977, s. 18 (3).

(4) The deputy minister shall make the assignment subject to, and shall ensure that the civil servant or public servant is aware that the assignment is subject to, the following conditions:

1. The civil servant or public servant shall submit regular personal attendance reports.

2. The civil servant or public servant shall not accept a bursary or scholarship in respect of the program.

3. The civil servant or public servant shall not enter into any other employment that will interfere with his or her participation in the program or that will result in a contravention of subsection 15 (1).

4. No overtime will be credited or paid for in respect of participation in or the completion of work related to participation in the program. R.R.O. 1990, Reg. 977, s. 18 (4).

Although this regulation undoubtedly qualifies as a term or condition of the grievors’ employment, there is nothing in the facts before me that suggest it was breached. The grievors refer to various kinds of training provided in the past, which tends to support a finding that the employer has been providing training and staff development, rather than that they have failed to do so. Most specifically, there is nothing in the material before me on which I could find that the employer is obliged to provide the specific training the grievors would like on how to deal with their own Performance Management Plans, or the more general remedial request for a guarantee of training on every new policy that affects their work.

14As to the request for time to complete tasks and documentation, it is totally unsupported in the material; there is no suggestion that there is some obligation to provide more time than has been provided, or even any indication of what time was provided for what tasks. In the circumstances, this is a request that the Board order the employer how to allot time for tasks to the Operational Managers, which goes well beyond the proper role of the Board. As to the remedy request that the employer not make comments that the Operational Managers perceive as threat of reprisals, there is also an insufficient basis in the material to support such a remedy. Firstly, as noted above, in context the reference to a threat is related to a time line for completion of documentation which the employer intends to count in consideration of performance evaluation, and is thus outside the Board’s jurisdiction, as relating to the method of evaluation of performance. It is also difficult to credit the idea that setting a time line with consequences in terms of performance appraisal could be considered a threat in the legal sense of the word in general, or a threat of reprisal in particular. Reprisal is a word used in the law to refer to negative consequences for exercising a right, not ordinary employment consequences for failing to fulfill a lawful employment requirement. There is nothing in the material before me sufficient to find that setting a time line, and taking any failure to meet it into account in assessing performance, is unlawful.

15As to the request that the Board grant the remedy that the employer should not engage in reprisals against the grievors because of this complaint, it is not rooted in a sufficient factual basis to warrant a finding that there was a breach of a term or condition of employment, without which the Board is unable to grant remedies of any kind.

16The remaining request is for costs, which are generally not granted by the Board, even for successful grievances, and for which there is no basis in the material filed.

17In the result, for the reasons set out above, the grievance is hereby dismissed.