PSGB# P-2020-2356

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

McIntosh

Complainant

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Marilyn A. Nairn

Vice-Chair

FOR THE COMPLAINANT FOR THE EMPLOYER

Tyler McIntosh Peter Dailleboust

Treasury Board Secretariat Legal Services Branch Senior Counsel

Decision

1In this complaint, Mr. McIntosh seeks a 2019-2020 performance rating higher than that assigned, as well as the increase in pay associated with the higher rating. The Employer takes the position that the Board is without jurisdiction to entertain the complaint, relying on sub-paragraphs 4 and 5 of section 4(2) of Ontario Regulation 378/07 (the “Regulation”) made under the Public Service of Ontario Act, 2006 (the “PSOA”). The Employer asks that the complaint be dismissed pursuant to Rule 11 of the Board’s rules, which provides:

Dismissal Without a Hearing or Consultation

• 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.

2Having regard to the complaint and the material filed in support, and assuming the facts asserted therein as true and provable, I find that the Board is without jurisdiction to entertain this complaint for the following reasons.

3The complainant is a manager in Corrections within the Ministry of the Solicitor General. His complaint was filed with the Board on January 7, 2021. He had earlier set out his concerns and inquired of human resources personnel as to his options for challenging his 2019-2020 rating in order to receive a pay increase. The Employer responded, apparently treating that inquiry as a notice of proposal to file a complaint, indicating that the Ministry was waiving its option to hold a dispute resolution meeting with the complainant. That advice was given on December 11, 2020.

4The Employer also advised the complainant that it would be relying on sub-paragraphs 4 and 5 of section 4(2) of Regulation to assert that the Board has no jurisdiction to entertain his complaint.

5The relevant provisions of the Regulation provide:

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).

6In Bowmaster et al. v Ontario (Solicitor General), 2020 CanLII 105698, the Board had received a number of complaints concerning the 2018-2019 performance ratings of the various complainants. They each asserted that their performance rating had been unilaterally changed to their detriment and in a manner that reflected the arbitrary, discriminatory, or bad faith exercise of the Employer’s discretion. They each sought a higher rating and the increase in pay associated with that higher rating. The Employer similarly raised sub-paragraphs 4 and 5 of section 4(2) as a bar to those complaints. After hearing from the parties, the Board considered the scope of those provisions and concluded:

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.

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.

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.

7That decision did go on to note that the Employer did not challenge that the Board had the jurisdiction to consider an allegation of discrimination made pursuant to the Employer’s statutory obligations under the Human Rights Code (the “Code”). To the extent that some of the complaints raised such allegations and identified prohibited grounds, those complaints continued within that limited scope.

8However, this complaint makes no allegation that the Employer breached any statutory obligation and asserts no facts that would support an allegation of discrimination under the Code. As in the decision in Bowmaster et al., supra, it falls therefore to be determined based on the scope of the regulatory language.

9Given the specific regulatory exclusion of matters relating to either the method of, or the evaluation of a manager’s performance and the further exclusion of any issue relating to the compensation provided or denied as a result of an evaluation of performance, the Board has no jurisdiction to entertain this complaint. It is a complaint fundamentally about pay for performance, a matter expressly excluded from the Board’s purview.

10As noted in paragraph 35 of the decision in Bowmaster, cited above, this in no way speaks to “the quality of the Employer’s treatment of the complainant or to the actual work performance of the complainant”. It is a decision regarding the scope of the Board’s authority.

11In the result, this complaint is hereby dismissed.