P-2010-1538

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Mike MacLennan

Complainant

• and -

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

Employer

BEFORE

Deborah J.D. Leighton

Vice-Chair

FOR THE COMPLAINANT

Mike MacLennan

FOR THE EMPLOYER

Carol Ann Witt Ministry of Government Services Labour Practice Group Counsel

HEARING

February 25, 2011.

Decision

1The applicant filed a complaint with the Board alleging that the employer’s assessment of his performance for 2009-2010 and consequently the award for pay for performance in that year, which relied upon a letter of reprimand meted out in 2010, was too harsh. At the outset of the hearing on February 25, 2011 the employer brought a motion to dismiss the complaint on the ground that the Board lacks jurisdiction to hear such a grievance, given Subsection 4(2) of Regulation 378/07, passed pursuant to the Public Service of Ontario Act, 2006.

2Counsel for the employer argued in her submission that this Board has no jurisdiction to hear the applicant’s complaint given Subsection 4(2) of the Regulation, which clearly prohibits review of performance appraisals and pay for performance. The pertinent part of Subsection 4(2) for the purpose of this decision provides:

The following matters cannot be the subject of a complaint about working conditions or about a term of employment.

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 his or her performance.

Counsel noted that the applicant did not grieve the letter of reprimand. He is only grieving his performance evaluation and pay for performance assessment. The employer submitted that the applicant’s performance appraisal was done in accord with the principles of the Management Compensation Plan which is intended to reward excellence. Further, there was no evidence of bad faith, nor was it ever claimed by the applicant.

3Counsel argued further that the only way the Board could take jurisdiction, would be to find that the assessment of the performance appraisal amounted to a second discipline for the same offense, or what is sometimes referred to as ‘double jeopardy’ by arbitrators. However, in counsel’s submission where an employer considers a prior discipline in assessing merit pay, there is case law which supports the principle that it does not constitute a second discipline for the same offense. Moreover, the decision on merit pay is an administrative decision, not in the nature of discipline and therefore cannot be characterized as a second penalty. Counsel relied on the following cases in support of the submission: OPSEU v. The Liquor Control Board of Ontario, [2008] 175 L.A.C. (4th) 97 (Harris); Manitoba Government v. General Employees Union and the Province of Manitoba, [2009] 98 C.L.A.S. 238 (Peltz); Amalgamated Transit Union, Local 1374 v. Brewster Transport Company Ltd. 1992 CanLII 14572 (AB GAA), [1992] 26 L.A.C. (4th) 240 (Tettensor); Hillis v. Treasury Board 2004 CanLII 94828 (PSSRB), [2004] 134 L.A.C. (4th) 258 (Canada Public Service Staff Relations Board).

4The complainant argued essentially that he had always received good performance appraisals in the past twenty years in the Ministry. He has many letters of commendation on his file. And although he admitted his misconduct and did not grieve it, he thought denying him pay for performance was much too harsh.

Decision

5Subsection 4(2) of Regulation 378/07 clearly prohibits the Board from entertaining grievances that complain about an employee’s performance appraisal or pay increases based on those assessments. Thus on the face of the grievance this Board simply has no jurisdiction to hear such a complaint.

6As counsel for the employer argued the only way that the Board could take jurisdiction would be to find that the performance appraisal and pay for performance evaluation amounted to ‘double jeopardy.’ Then the Board would have the jurisdiction to hear the complaint as an alleged discipline without just cause. So the issue is whether the employer punished the complainant a second time for the same offense, when it relied on the letter of reprimand in assessing the complainant’s performance appraisal and pay for performance. While there is no case law from the Public Service Grievance Board that has addressed this issue, there is arbitral jurisprudence which is helpful. In Manitoba Government, supra, three employees were disciplined for serious misconduct. The employer then denied the grievor’s pay increases because of the misconduct. In assessing the union’s argument that the denial of a merit increase was like a second suspension, the Board held that the decision to deny the merit increase did not constitute a punishment. The Board concluded:

…finally, I am unable to find a violation of the rule against double penalty or double jeopardy in the circumstances of the present case. An employee who has been disciplined may become ineligible for other benefits as a result of the conduct which lead to discipline, but this is not a double penalty … (at para.113)

In Brewster, supra, the arbitrator struck the discipline because of procedural flaws but upheld the decision on the loss of a merit increase finding that “even though as a general principle, an employer may not impose more than one penalty for the same offence, there are situations where this may be the effective result.” (at para.72) I agree with the reasoning in both these cases. The employer must be able to consider an employee’s performance over the whole year, including any discipline for misconduct. If the performance rating is affected and thus a merit increase is not awarded, then it is not a second discipline.

7The employer argued further that the decision on merit increases is an administrative one and therefore cannot be considered discipline. In Hillis, supra, the grievor was given a ten day suspension for using her access to private information to provide a third party confidential information. As a Federal Government employee she had a ‘reliability’ status that was necessary for her to do her job. Because of the nature of her misconduct, when her status was subsequently reviewed she lost her reliability rating. Having lost this status which was essential to the position, her employment was terminated. The grievor argued in this case that she was subject to ‘double jeopardy’ as a result of both the ten day suspension and the loss of reliability status. The Board held as follows:

…it is generally accepted that the employer cannot impose more than one penalty for the same offence. That is to say no more than one disciplinary penalty for the same offence. The revocation of a reliability status and the subsequent termination come under the employers discretionary powers in paragraph 11 (2g) of the Financial Administration Act and is not of a disciplinary nature, but rather of an administrative one. The basis of this action and the analysis it requires are different. By nature, the one necessarily looks to the employees past actions and seeks to improve the behavior; the other evaluates, or in this case reevaluates, the future relationship between the employer and the employee in terms of confidence, trust and reliability and the character of the employee. The result of the security investigation is the removal of the reliability status, not the discharge, which is instead the inevitable consequence of the removal of the status. (at para.143)

Applying the reasoning in Hillis to the case before me the discipline was for misconduct, which the grievor admitted and did not grieve. The performance appraisal and the decision on pay for performance were administrative. Therefore the performance appraisal and the result of the pay for performance cannot be considered to be a second discipline.

8Finally, there is no evidence or reasonable basis for finding that the performance appraisal was made in bad faith, nor was any evidence provided to me to support such a finding. Although I am sympathetic to the complainant’s feeling that he has been disciplined twice, his performance appraisal and the consequent decision on merit pay was not a punishment. As such the Board has no jurisdiction to hear the complainant’s case on the merits because it falls squarely under subsection 4(2) of Regulation 378/07 of the Public Service of Ontario Act, 2006, which prohibits the Board from reviewing such cases on the merits. Thus, having carefully considered the matter before me I have decided that the employer’s motion to dismiss is granted and that the grievance must be dismissed.