PSGB#P-2015-0887

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT OF ONTARIO

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Frank Schmohl

Complainant

• and -

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

Employer

BEFORE

Kathleen G. O’Neil

Chair

FOR THE COMPLAINANT

Frank Schmohl

FOR THE EMPLOYER

Susan Munn Treasury Board Secretariat Legal Services Branch Counsel

SUBMISSIONS

September 21, 2015

Decision

1This decision deals with the complaint of Frank Schmohl, claiming that the employer’s performance management policy was violated in the spring of 2015. As remedy he asks that the employer follow the performance review policy and because it was not followed, to give him a performance rating of “met all”.

2As this complaint, on its face, appeared to fall outside the Board’s jurisdiction, the Board sent a letter dated May 27, 2015 to Mr. Schmohl, the most pertinent portion of which reads 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 limited by Ontario Regulation 378/07. Section 4 (2) of that Regulation reads:

(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. 0. Reg. 378/07, s. 4 (2).

Your complaint on its face appears to relate to either the method of performance evaluation, or the compensation provided or denied as the result of such an evaluation. For this reason it does not appear to constitute a grievance over which this tribunal has jurisdiction.

Accordingly, the Public Service Grievance Board gives notice of its intention to dismiss your complaint. You are entitled to make written submissions to the Public Service Grievance Board with respect to the dismissal of your complaint by June 26, 2015 before a final decision is made. Please provide a copy of your submissions, if any, to the employer.

3This letter was sent in accordance with the Board’s Rule 9, which reads as follows:

Dismissal Without a Hearing or Consultation

9. 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.

As well, Practice Note #1 provides for the procedure of receiving submissions as was done in this case.

4Mr. Schmohl took the opportunity to make submissions, to which the employer responded, and the complainant provided a final reply.

5The complaint filed with the Board expresses Mr. Schmohl’s serious discontent with the employer’s process in evaluating his performance at, and leading up to, a year-end meeting held on April 8, 2015, presumably in relation to the preceding year’s performance. He states in his complaint that it was not done in accordance with mandatory policy requirements in many respects. These include timing, documentation, development of a performance plan, the establishment of a specific work assignment with clear and appropriate performance expectations, coaching concerning any barriers, as well as constructive feedback and support for improvement. As well, he complains about the use of certain reports and a letter of counsel in the process.

6In his submissions in response to the Board’s letter cited above, Mr. Schmohl emphasized that his complaint is based on the employer’s failure to complete his performance evaluation appropriately, which, in his view, is in direct violation of the employer’s policies and procedures, which are conditions of his employment. He states that his 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 the complainant’s submission that this type of complaint falls squarely within the Board’s jurisdiction and should therefore proceed to a hearing.

7As well, Mr. Schmohl invited the board to hear his complaint because of the significant power imbalance between the employer and himself, a non-unionized employee. He states that, as an employee, he completed the appraisal process appropriately and expected that his employer would also do so, which he submitted was supported by the decision of the Supreme Court of Canada in Machtinger v. HOJ Industries Ltd. (1992), 91 D.L.R (4th) 491, [1992] 1 SCR 986, 1992 CanLII 102 (SCC).

8Counsel 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 evaluation and pay for performance, as set out above. Further, Counsel noted that the arguments made by the complainant here were made and dismissed by the Board in a similar case - Tyrrell v. Ontario (Ministry of Community Safety and Correctional Services, 2004 CanLII 55241 (ON PSGB).

9In reply, Mr. Schmohl further emphasized the idea of the power imbalance between the employer and employee, when the employer picks and chooses which policy and procedures to follow and does not give the employee an opportunity to address the concerns before a verdict has been cast, which in turn can have a drastic impact on the employee’s life.

10The Board has carefully considered the submissions filed. Despite Mr. Schmohl’s clarification of his complaint, it is clear that what he is complaining about is how the employer conducted the evaluation of his performance. The regulation which binds the Board is crystal clear to the effect that one of the matters which cannot be the subject of a complaint to this Board is “the evaluation of a public servant's performance or the method of evaluating his or her performance”. Since that is exactly what Mr. Schmohl is complaining about, and the PSGB is bound by the statute and the regulations, the Board is simply without the authority to hear his complaint.

11It is true that the Machtinger decision relied upon by Mr. Schmohl refers to inequality of bargaining power in employment relationships. However, that case was dealing with the very different issue of the appropriate length of notice for dismissal, and does not provide a basis on which the Board could hear this complaint about performance evaluation.

12For the above reasons, the Board does not have the authority to hear Mr. Schmohl’s complaint about terms and conditions of employment related to the evaluation of his performance, and it is accordingly dismissed.