PSGB# P-2019-1829, P-2019-1891, P-2019-1892, P-2019-1932, P-2019-1953, P-2019-2026,

P-2019-2088, P-2019-2089, P-2019-2090, P-2019-2156

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Bowmaster, Lessel, Lessel, Dalton, Narburgh,

Dwyer, Cartwright, Tomlinson, Reay, Kloosterman

Complainant

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General) (Ministry of Children, Community and Social Services)

Employer

BEFORE

Marilyn A. Nairn

Vice Chair

FOR THE COMPLAINANTS

Self Represented Andrea Wobick (Counsel) (Representative for Complainant Dwyer)

FOR THE EMPLOYER

Ursel Phillips Fellows Hopkinson LLP Peter Dailleboust (Senior Counsel) Treasury Board Secretariat Legal Services Branch

SUBMISSIONS

Written representations received on August 26, September 30, and October 22, 2020

Decision

1In an interim decision dated April 16, 2020, the Board noted as follows:

Each of these complaints challenges the Employer’s treatment of the complainant in respect of their performance rating and the associated compensation. Although the factual bases in each case differ somewhat, the complaints essentially all assert that, having conducted a performance evaluation of the complainant, the Employer then improperly changed that performance rating to the detriment of each complainant. The alleged reasons for the Employer’s actions vary but include allegations that the Employer acted in a manner that was arbitrary, discriminatory, and/or in bad faith. Some of the complaints specifically make allegations of discrimination under the Human Rights Code.

In each case, and relying on sub-paragraphs 4 and 5 of section 4(2) of Ontario Regulation 378/07, the Employer takes the preliminary position that the Board has no jurisdiction to entertain the complaint and seeks to have each complaint dismissed without an inquiry into its merits.

2That decision consolidated the hearing of these ten complaints at least for the purposes of determining the preliminary objection as to the scope of the Board’s jurisdiction. It provided a timetable for the receipt of the complainants’ and the Employer’s will-say statements and supporting documentary material in respect of the preliminary issue. A subsequent decision dated July 31, 2020 established a timetable for the receipt of the parties’ submissions. This process was utilized in response to the inability to conduct in-person hearings due to Covid-19 restrictions and therefore it took some months to receive the parties’ full materials and submissions.

3This decision deals with the preliminary issue as to the scope of the Board’s jurisdiction to entertain these complaints.

4In dealing with the preliminary issue, the focus is on the nature of the complaints, and I assume that the facts asserted by the complainants are true and provable. There may be little dispute as to what actually occurred in each case, although the characterization of those facts is in dispute. Many of the submissions received by the Board are virtually identical. The complainants are all managers who work in various managerial capacities within the Ministry of the Solicitor General and in one case, with the Ministry of Children, Community and Social Services.

5Factually, the complaints (with the exception of one) assert that the complainant received a performance review from their immediate manager, rating their performance as either “Effective-Meets All Expectations” or “Outstanding”. That performance review process is set out in the Employer’s Employee Performance Policy (“EPP”). A rating at these levels attracts a merit pay increase pursuant to the Merit Pay Policy for Individual Contributors (“MPP”).

6In each of those cases, it is asserted that the performance rating determined by the immediate manager was subsequently changed and downgraded by someone at a higher management level without input from either the immediate manager or the employee. In one complaint (Bowmaster), it is not clear whether a review was conducted, but the complaint asserts that the ultimate performance rating was lower than expected, again resulting in no award of merit pay. All of the complaints assert that a lower rating of “Effective-Meets Most Expectations” was inappropriately assigned. That rating results in no award of merit pay.

7The complaints also all assert that the Employer failed to comply with its own EPP by, inter alia, failing to advise the complainant of any performance concerns; failing to conduct regular performance meetings as contemplated by the policy; and/or by failing to provide feedback, mentoring, supervision, and/or support in respect of any performance issues; and by failing to adhere to the immediate manager’s assessment as the person directed by the policy to perform that assessment. Some of the complaints speak to the application of a ‘bell curve’ being applied after the immediate manager’s assessment, a review alleged to have been dependent solely on the scope and detail of the immediate manager’s written comments. The complaints assert that the process was conducted in a manner that was arbitrary, discriminatory and in bad faith. As one complainant asserted:

The “new” rating methods introduced for this performance cycle were intended to reward excellence and be individually based, but the use of a bell curve has essentially changed this system to a lottery.

8A number of the complaints also assert that the Employer violated its Code of Conduct and Professionalism Policy (“COCAP”) when the complainant was advised that “no one would receive a ‘Meets All’ rating” and that this information was conveyed prior to any meeting assessing performance. The implication being asserted is that the Employer acted in an arbitrary fashion, making blanket determinations as to performance prior to any individual assessment of actual performance. These complaints assert that the Employer acted in violation of the principles established in COCAP, creating an unhealthy work environment.

9It is asserted that the lower rating affects not only monetary compensation including pension, but also opportunities for advancement and development opportunities.

10Seven of the complaints also allege a violation of the Ontario Human Rights Code (the “Code”). The prohibited grounds relied on vary and are individual to each complainant.

11The complaints variously seek a number of remedies, including a determination that the Employer’s practice of limiting the number of employees who may receive a particular rating is biased, unfair, and in contravention of legislation and policy; oversight of future performance assessments; compensation for human rights violations, an apology, costs, damages for loss of reputation, damages for loss of dignity, and in two cases, a request for a Voluntary Exit program.

12The complainants all seek to have their rating restored (or redone in one case) so as to be at the higher rating of “Effective-Meets All Expectations” or, in one case, to “Outstanding”.

13Most of the complaints make a specific request for the retroactive payment of the merit pay associated with the higher performance rating. In the case of one complaint, the complainant seeks a “make whole” remedy including an amount of damages “resulting from the Employer’s arbitrary, discriminatory and/or bad faith actions”.

14This Board is established pursuant to the terms of the Public Service of Ontario Act, 2006 (the “PSOA”) and the scope of its authority to consider and resolve complaints is set out in Ontario Regulation 378/07 (the “Regulation”) made pursuant to the PSOA. That Regulation sets out the type of complaints that the Board has jurisdiction to entertain, providing a limited forum in which excluded employees may bring complaints about the alleged breach of, inter alia, terms and conditions of employment.

15Section 4 of the Regulation provides:

Complaint about a working condition or a term of employment

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…

(2) The following matters cannot be the subject of a complaint about a working condition 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 the evaluation of his or her performance. O. Reg. 378/07, s. 4 (2).

16It is the position of the Employer that paragraphs 4 and 5 of sub-section 4(2) prevent the Board from taking jurisdiction over these complaints - that the Regulation is clear and specifically precludes an employee from making any complaint concerning the performance review process and/or its result. Regardless of the most generous reading one might give to the complaints, argued the Employer, they all relate to the evaluation of the complainants’ performance and are expressly precluded from review by the Board.

17The complainants do not take issue with the assessment and rating provided by their immediate manager. They argue that, in seeking to have that rating restored, the complaint falls outside the parameters of the exception in sub-section 4(2) of the Regulation. Counsel on behalf of Ms. Dwyer argued (and the argument applies to all of the complaints) that no issue is being taken with the evaluation conducted by the direct supervisor, nor the rating assigned by the direct supervisor. Rather, argued counsel for Ms. Dwyer, it is the arbitrary, discriminatory and/or bad faith decision taken by the Employer to unilaterally change the rating, months after the evaluation and previous rating had been completed and assigned. Similarly, argued counsel, any compensation flows not from any result of the evaluation of performance but as a remedial response to the arbitrary, discriminatory and/or bad faith decision taken by the Employer to deny compensation despite the evaluation and rating assigned by the direct supervisor. According to the EPP, it is argued, the direct manager is responsible for evaluating performance. Any prohibition in the Regulation cannot act to shield the Employer from its failure to comply with its own policy, argued the complainants.

18I have reviewed the following decisions of the Board, referred to me by the parties: Younger v Ontario (Environment), 2007 CanLII 30471; Tyrell v Ontario (MCSCS), 2004 CanLII 55241; Berenbaum v. Ontario (Labour), 2011 CanLII 23299; Sumner et al v Ontario (Health and Long Term Care), 2007 CanLII 36065; Hill v. Ontario (MCSCS), 2006 CanLII 30740; Garratt v. Ontario (Health and Long Term Care), 2005 CanLII 53194; Tighe v. Ontario (Solicitor General), 2020 CanLII 45594; Drakos v Ontario (MCSCS), 2013 CanLII 88258; Chyczij v. Ontario (Labour), 2006 CanLII 26472; Aspiotis v. Ontario (MCSCS), 2019 CanLII 21767; and Charlton v. Ontario (MCSCS), 2007 CanLII 24192.

19The Employer’s will-say statement on the preliminary issue states that some employees may have been advised of a rating before final corporate approval of the rating was given. If the case, it would not be difficult to predict the sense of unfairness that would manifest in employees who received performance reviews from their immediate managers only to have that rating later downgraded by someone who had no direct knowledge of their performance and without any consultation with the supervising manager or the employee, with the attendant impact on compensation.

20However, notwithstanding the able arguments made in an attempt to avoid the clear and comprehensive language of sub-section 4(2) of the Regulation, one cannot escape the conclusion that these complaints fall within the parameters set out in paragraphs 4 and 5 of sub-section 4(2) of the Regulation.

21In 2004 in Tyrell, supra, the complainant sought reconsideration of the dismissal of his complaint. As here, the complaint alleged that the employer had failed to follow its own policy for implementing pay for performance and challenged the cap placed on the number of managers able to achieve an “exceeds all” rating as being arbitrary and discriminatory. In its original decision dated February 4, 2004 (cited in the reconsideration decision at page 2 and following) the Board stated:

The Public Service Grievance Board, as a statutory tribunal, can only deal with those complaints falling within its legislative mandate…set out in [the Regulation]…

Your complaint…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.

22At page 5 of the reconsideration decision, the Board re-iterated:

Regardless of the most generous reading one could give to the complaints, they all related to the evaluation of the complainants’ performance.

23In Younger, supra, the complainant entered into Minutes of Settlement that contemplated his retirement. The complainant had expected that by retirement, his performance would, in the normal course, be evaluated and rated for his final year of employment, with an attendant merit pay increase. That did not happen. That issue was not discussed during the negotiation of the settlement and the complainant argued that the settlement and the release contained therein did not shield the employer from future breaches while he remained employed.

24While the Board found that the Minutes of Settlement precluded it from entertaining the complaint, it also addressed the issue of whether the exclusion in the Regulation precluded the Board from entertaining the complaint. Again, the assertion was that the Employer had failed to comply with its own policy. At page 7 the Board stated:

…the issue is that the employer failed to follow its own guidelines so that what occurred in the employee’s absence was not a true evaluation…

There is no doubt that certain aspects of the employer’s pay for performance program are properly considered terms or conditions of a manager’s employment. However, by virtue of subsection 31(4) [the predecessor to sub-section 4(2) of Regulation 378/07], complaints regarding it are excluded from the grievances over which this Board has jurisdiction, as they are complaints regarding the method…of evaluation of the employee’s performance, the evaluation itself…and the compensation provided or denied as a result… the core of the grievor’s complaint is about how he was evaluated (not in the way it had been done before and as he had expected, after a face-to-face meeting), the content of the evaluation itself (negative, and not giving sufficient recognition to the high quality of his achievement) and the compensation provided or denied as a result of that evaluation (a zero percentage merit award). This is exactly the kind of claim excluded by subsection 31(4) and thus the Board has no authority to deal with it.

25Also in Berenbaum, supra, the complainant alleged that his pay for performance award should not have been pro-rated. In finding that it had no jurisdiction to entertain the complaint, the Board stated at para 26:

The grievor stresses that he is not complaining about the substance of the evaluation of his performance…He is complaining about its implementation, as he is convinced that there was a mistake in what he was paid, not how he was evaluated…However, some mistakes, if mistake it was, have been removed from the Board’s purview to fix. Even if the Board were to be persuaded, on a hearing of the merits of the grievance, that the employer had erred, the grievor has not demonstrated how it could be within the Board’s jurisdiction to award the grievor a larger pay-for-performance award, given the wording of the Regulation, which effectively removes elements related to pay-for-performance from the grievance over which the Board has jurisdiction.

(emphasis added)

26Ms. Dwyer relies on the decisions in Drakos and Chyczij, both supra, to argue that the Board has jurisdiction to deal with allegations that an employer’s treatment of an employee is arbitrary, discriminatory or in bad faith. Further, relying on the decision in Aspiotis, supra, she argues that the Board has elected to hear a complaint where it raised the possibility that the Employer’s actions were arbitrary, discriminatory or in bad faith. She further argued that any lack of remedial authority did not deter the Board from proceeding to a hearing on the merits in Aspiotis.

27The Board’s decision in Garratt, supra, confirms that there may be circumstances where the Board will inquire into an allegation of arbitrary, discriminatory or bad faith conduct on the part of the Employer. Fundamentally, the allegation must relate to an existing term or condition of employment which the Board has jurisdiction to enforce. In Garrett, the complainants sought a transparent process for setting and communicating wages. No such process then existed and the Board dismissed the complaint on the basis that the complainant was seeking to establish a new process - to create a new term of employment, a matter beyond the Board’s jurisdiction. The Board’s role is the enforcement of existing terms and conditions of employment. The Board did go on to say that an allegation that an existing term or condition of employment had been applied in bad faith was a matter that could be brought to the Board. However, that decision did not deal with a term or condition of employment that was otherwise expressly excluded from the Board’s purview.

28So, for example, in Chyczij, supra, the Board allowed a complaint to proceed to a hearing on its merits where the allegation was that a term of the complainant’s employment included the proper consideration of his request for tuition assistance. The Board found that it had both the jurisdiction to determine whether, as a matter of fact, there was such a term or condition of employment, and, if so, whether that term had been breached. In discussing the Board’s jurisdiction to review discretionary management decision-making it referred to the decision in Garratt, supra.

29And see paragraph 43 of the Board’s decision in Drakos, supra, that confirms that the Board’s caselaw recognizes that it has jurisdiction to deal with allegations that treatment by the Employer was arbitrary, discriminatory or in bad faith. However, none of the cases cited in support of that proposition deal with cases where pay for performance was the issue.

30Even the preliminary decision in Aspiotis is appropriately distinguished. The issue in that case arose when the complainant was reassigned from his Staff Inspector position to the position of Deputy Superintendent. The complainant alleged that the reassignment was improper and was a decision made in a manner that was arbitrary, discriminatory and in bad faith. The complainant further alleged that his Staff Inspector position had been made redundant which allowed him certain surplus rights that had been denied. Alternatively, the Employer’s actions were alleged to have been disciplinary.

31The Employer raised a number of preliminary objections, including sub-section 4(2) of the Regulation. The complainant in that case apparently argued that the Board would have jurisdiction to hear the complaint notwithstanding the language contained in the Regulation. In allowing the complaint to proceed on its merits, the decision quotes Drakos, supra, and concludes:

117In reviewing the materials provided by the parties the most significant issues before the Board is [sic] whether the Complainant has adequately supported the allegations that the Employer has engaged in arbitrary, discriminatory or bad faith behaviour in the reassignment of the Complainant to the Deputy Superintendent position.

122As a result the Board directs the parties to attend at the Board where a hearing will be held to determine whether the Employer’s conduct in evaluating the Complainant’s work performance and subsequent reassignment to the position of Deputy Superintendent was made in an arbitrary or discriminatory manner or resulting from bad faith.

123Secondly, the Board will hear evidence to conclude whether the Employer has either disciplined the Complainant or has engaged in such behaviour that the Board could conclude that the Complainant has been constructively dismissed.

32The decision does not address the impact of sub-section 4(2) on the Board’s jurisdiction. There is no reference to any of the caselaw dealing with the regulatory exclusion. It is not apparent from the facts whether paragraph 2 of sub-section 4(2) was applicable, although there is a clear assertion that the move constituted discipline, an allegation over which the Board would have jurisdiction. It is the case, as paragraph 117 of the decision confirms, that the complaint was not about pay for performance but was about a change in the complainant’s position from Staff Inspector to Deputy Superintendent. The complainant wanted his old job back. To the extent that work performance was raised, it was raised by the Employer as an anticipated defence to the complaint. The complaint was subsequently settled between the parties.

33I am not persuaded that it is appropriate to read the decision in Aspiotis as going so far as to find that the Board has jurisdiction to consider complaints related to pay for performance for allegations of arbitrary, discriminatory or bad faith treatment on the Employer’s part. The Board’s historical and consistent caselaw stands opposed to that conclusion as do the clear words of the Regulation which bind the Board in the scope of its authority.

34Pay for performance is a term and condition of employment for excluded employees, including these complainants (and see Kaine v. Ontario (CYS), 2014 CanLII 48097 at paragraph 36). These complaints all assert that the manner in which their performance was evaluated, first done by their direct manager and then changed without notice or consultation was in breach of the EPP and that the Employer cannot shield itself from its own misconduct. However, what is being fundamentally complained about are those matters excluded from the Board’s purview by paragraphs 4 and 5 of sub-section 4(2) of the Regulation. Each complaint seeks to be remedied by the complainant being awarded a higher performance rating as each challenges the evaluation ultimately made by the Employer. In asserting that the Employer acted in a manner that was arbitrary, discriminatory and/or in bad faith the complainants are challenging “the method of evaluating...performance”. They also seek “the compensation.. denied…as a result of the evaluation”.

35Having regard to the specific exclusion in the Regulation, I find that the Employer is effectively protected from a complaint at the Board asserting that it acted in a manner that was arbitrary, discriminatory, or in bad faith in respect of matters concerning pay for performance. This in no way speaks to the quality of the Employer’s treatment of the complainants or to the actual work performance of any complainant. It is a decision based on the fact that this Board has no inherent authority and the clear language of the Regulation specifically excludes these allegations from the Board’s jurisdiction to consider and/or remedy.

36As noted above, seven of the complaints allege that the Employer violated the Ontario Human Rights Code in changing their performance ratings. Distinct from the scope of the Board’s jurisdiction under the Regulation to assess the discretionary decision-making of the Employer, the Employer acknowledges that it must conduct itself in accordance with the legislative and quasi-constitutional terms of the Code and that the Board does have the jurisdiction to entertain and determine that narrower statutory allegation. However, it has also reserved its right to bring a further preliminary motion to the effect that the complaints do not make out a prima facie case of discrimination pursuant to prohibited grounds in the Code.

37Allegations of a breach of the Code are individual to each complainant. Therefore, to the extent that the Employer’s further preliminary objection is to be considered, it must be done on a case by case basis in respect of those complaints making the allegation.

38Having regard to all of the above, I hereby make the following findings:

1. The following complaints do not make any allegation of a breach of the Code by the Employer. They are therefore determined based on the review set out above as to the scope of the Board’s jurisdiction, as limited by paragraphs 4 and 5 of sub-section 4(2) of the Regulation. In each case, the Board has no jurisdiction to entertain the complaint as it is a complaint fundamentally about pay for performance, a matter excluded from the Board’s purview.

Therefore, the following complaints are hereby dismissed:

Board File #P-2019-1932 - Dalton v. SOLGEN

Board File #P-2019-1953 - Narburgh v. SOLGEN

Board File #P-2019-2089 - Tomlinson v. MCCSS

2. The remaining complaints all allege a violation of the Code or allege that the Employer acted in violation of a prohibited ground referenced in the Code. Further to the application of paragraphs 4 and 5 of sub-section 4(2) of the Regulation, these remaining complaints are hereby dismissed in all respects but for the remaining allegation that the Employer acted in violation of the Code. Those complaints are:

Board File #P-2019-1829 - Bowmaster v. SOLGEN

Board File #P-2019-1891 - Lessel, K. v. SOLGEN

Board File #P-2019-1892 - Lessel, P. v. SOLGEN

Board File #P-2019-2026 - Dwyer v. SOLGEN

Board File #P-2019-2088 - Cartwright v. SOLGEN

Board File #P-2019-2090 - Reay v. SOLGEN

Board File #P-2019-2156 - Koosterman v. SOLGEN

39As noted, the Employer has reserved its right to object to these remaining complaints proceeding, on the further ground that they do not make out a prima facie case of discrimination pursuant to the prohibited grounds in the Code. The Employer is therefore directed to advise the Board as to whether it intends to pursue that objection. Should the Employer advise that it intends to pursue the objection, counsel for the Employer is hereby directed to also advise as to an appropriate time table for the receipt of the Employer’s written submissions on this preliminary objection and in respect of each of these complaints, following which, each of these complainants will have the opportunity to respond.

40The Board will henceforth deal with each remaining complaint individually.