PSGB# P-2020-2250

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Fani

Complainant

• and -

The Crown in Right of Ontario (Ministry of Environment, Conservation and Parks)

Employer

BEFORE

Marilyn A. Nairn

Vice-Chair

FOR THE COMPLAINANT Ghasem Fani

FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

Decision

1This complaint, filed by Ghasem Fani, alleges that his performance rating for 2018-2019 was assessed inappropriately and that the Employer changed his rating in a manner that was arbitrary and discriminatory. This complaint is similar to a number of complaints received by the Board. The Employer has taken a number of preliminary positions asserting that Board has no jurisdiction to entertain the complaint.

2Rule 11 of the Board’s rules, 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.

3For the reasons that follow, I find that, even assuming all of the facts stated in the complaint and supporting materials to be true, the complaint does not make out a case for the remedies requested, in that, pursuant to Regulation 378/07 (the “Regulation) made pursuant to the authority granted under the Public Service of Ontario Act (the “PSOA”), this Board is without justification to entertain the complaint.

4This determination is made based on the information set out in the complainant’s materials. Mr. Fani worked in the OPS for some 32 years and was employed as a manager in the Ministry of Environment, Conservation & Parks. He retired on December 31, 2019.

5By this complaint, the complainant is seeking to have his performance rating ‘restored’ to “fully effective” as his Director had advised him in October 2018. On September 16, 2019, the complainant was advised that his rating for the 2018-2019 period was “meets most expectations”. This lower rating did not produce a salary increase as would the higher rating. Through the fall of 2019 the complainant raised his concern with various senior managers, including the Secretary of Cabinet. The Deputy Minister was made aware of the complainant’s concern as well.

6On November 14, 2019, the complainant filed a complaint pursuant to the Employer’s Workplace Discrimination and Harassment Policy (“WDHP”), alleging that the Employer had not followed its own Performance Management Policy in assessing his performance and alleging discrimination. According to the complainant, the individual assigned to deal with his complaint, Mr. Wootton, advised him on July 14, 2020 that the Employer had taken ‘direct management action’ in response to the complaint but that he had concluded that it was a case of misunderstanding. The complainant asserts that the WDHP process was compromised as Mr. Wootton was in a conflict of interest with respect to the issues raised by the WDHP complaint.

7Based on the complainant’s particulars, he became aware of his ‘changed’ performance rating on September 16, 2019. He became aware of Mr. Wootton’s response to his WDHP complaint on July 14, 2020. He believes that the Employer deliberately targeted him due to his pending retirement.

8The complainant originally filed his application with the Board on November 16, 2020. However, that Form 1 did not include a notice of proposal to file a complaint as required by that application. The Registrar of the Board so informed the complainant on November 19, 2020 and set out the provisions of section 8 of the Regulation. The complainant then provided a copy of an email sent to his Deputy Minister advising of his intent to file a complaint. That email is dated November 19. It is not apparent from the face of the email whether it was sent in 2019 or 2020, although given its reference to the outcome of his WDHP complaint and his conversation with Mr. Wootton, it could only have been sent in 2020. That was also the same day that the Board’s Registrar informed the complainant of the Regulation’s requirement in this regard.

9The Registrar of the Board also advised the complainant that his complaint had been filed after he retired and referred him to the Board’s decision in Burt v. Ontario (Community Safety and Correctional Services), 2011 CanLII 23300.

10In response, the complainant asserted that his complaint did not allege a violation of a working condition or term of employment. Rather, he asserts that the Employer did not follow its own policy and changed his performance rating after his rating had been assigned by his manager. The remedy he seeks is to be assigned the higher performance rating and to receive the associated increase in pay.

11The complainant re-submitted his Form 1 on December 22, 2020.

12The Employer 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.

13The 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).

14In 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:

[14] This 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.

[27] The 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.

[34] Pay 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”.

[35] Having 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.

15That 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. To the extent that the complaint states that the Employer singled out the complainant due to his pending retirement, there is perhaps an arguable allegation of discrimination pursuant to a prohibited ground under the Code over which the Board might have jurisdiction.

16However, by the time the complainant gave his notice of proposal to file a complaint, he had been retired for almost a year and was no longer a public servant at the time he filed that notice and his subsequent complaint. In Burt v. Ontario, supra, the Board determined:

[15] …the Board is a creature of statute with limited jurisdiction…The key element here is that there is no dispute that the grievor was retired at the time he filed his grievance. The grievor was therefore no longer employed in a Ministry when he grieved, and consequently, by application of the definition in the statute, no longer a public servant, and no longer had working conditions about which he could grieve. Moreover, although he is a former public servant, there was no suggestion that the nature of his grievance falls within the portions of the statute in which former public servants are specifically mentioned. In the circumstances, the Board has no authority to hear the grievance and it is hereby dismissed.

17Notwithstanding the complainant’s assertion that his complaint does not involve a working condition or term of employment, such must be the case. Absent that characterization the Board would be without jurisdiction to entertain the complaint. Sections 2, 3, and 4 of the Regulation prescribe the type of complaint that this Board can entertain. Those include complaints about a dismissal for cause; a complaint about a disciplinary measure; and a complaint about a working condition or term of employment. The Board also has the jurisdiction to entertain complaints under Parts V and VI of the PSOA relating to political activity and the disclosure and investigation of wrongdoing (whistle-blower protection). Those provisions do not arise here. Thus, the only category of complaint that the complainant’s assertions could fall under would be a breach of a working condition or a term of employment. The potential for an award of ‘merit pay’ or ‘pay for performance’, the treatment at issue here, is a term of employment for OPS managers.

18However, because the complainant retired at the end of 2019 and did not file his complaint until almost a year later, he was no longer a public servant and, akin to the issue in Burt v. Ontario, pay for performance was no longer a working condition about which he could complain. For this reason, even assuming that an element of the complaint raises an allegation of discrimination based on a statutory breach, and assuming further that the complaint makes out a prima facie case of discrimination, this Board remains without jurisdiction to entertain that complaint.

19The above would be sufficient to dismiss the complaint under Rule 11 as, even assuming the facts set out to be true, the Board is without jurisdiction to entertain the complaint. However, and finally, the complaint is also untimely. 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,

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

Notice of proposal to file a complaint

8. (1) A person who proposes to file a complaint shall give notice of the proposal to the following person or entity:

9. A complainant who, at the material time, worked in a ministry shall give the notice to his or her deputy minister.

(4) The notice must be given within the following period:

2. For a complaint about a working condition or a term of employment, within 14 days after the complainant becomes aware of the working condition or term of employment giving rise to the complaint.

20Sub-paragraph 3 of section 8 has been interpreted by the Board to mean that the notice of proposal to file a complaint must be given within 14 days after becoming aware of the alleged breach of the working condition or term of employment. See Hasted v Ontario (Community Safety and Correctional Services), 2016 CanLII 7473 (ON PSGB) at paragraphs 21 and 22:

[22] … It is more reasonable to interpret the time limit as running from the date that a complainant becomes aware of circumstances giving rise to the complaint, rather than the mere existence of the working condition or term of employment.

21The Board has also consistently held that the regulatory time limit is mandatory; that the Board has no discretion to relieve against that time limit and that, consequently, a failure to meet the time limit renders the Board without jurisdiction to entertain the complaint. The decision in Hauth v Ontario (Community Safety and Correctional Services), 2013 CanLII 74165 (ON PSGB) concludes:

[2] In three recent cases, the Public Service Grievance Board considered the legal implications of the requirement imposed by section 8 of Regulation 387/07 to give notice of a complaint to the Deputy Minister. In Jackson v. Ontario (Ministry of Community Safety and Correctional Services) [2011] O.P.S.G.B.A. No. 8 the Board made it clear that notice to the Deputy Minister was an essential precondition for it to take jurisdiction over a complaint. At paragraph 38 of that decision, the Board stated:

Furthermore, there was no suggestion that the Board can simply ignore the fact that the preconditions in sections 8 and 9 were bypassed, or that there is power in the Board to treat the matter as if those preconditions had been met…If the complainant was not eligible to file the grievance, there is no grievance properly before the Board, and it must be dismissed.

[6] The language used to prescribe time limits in the new Regulation 378/07 leaves no doubt as to its mandatory nature. Given the mandatory nature of these time limits and the lack of any express statutory authority to relieve against these mandatory time limits, the Board has no power to alter the jurisdictional consequences of a failure to comply with the time limits set out in section 8 of that Regulation. It is for this reason that this complaint must be dismissed. This conclusion is in no way a reflection on the merits of the complaint itself but merely a determination that the Public Service Grievance Board, as a tribunal created by statutory enactments, can only stay within the limits of these enactments.

22And see the decision in Berezowsky et al v Ontario (Community Safety and Correctional Services), 2017 CanLII 7056 (ON PSGB) at paragraph 10.

23In this case the complainant became aware of the alleged breach of the working condition or term of employment on September 16, 2019. On that date the complainant learned that his assigned performance rating was lower than what he understood and expected it to be. He therefore had the information he needed to complain. There is also nothing to suggest that he did not immediately understand the consequences of that lower rating. The 14-day time limit started to run as of that date.

24Notice of proposal to file a complaint was required to have been given by September 30, 2019. However, notice of proposal was not given to the Deputy Minister until November 19, 2020, over thirteen months later.

25The fact that the complainant filed a WDHP complaint does not assist, nor does it delay the process before the Board in the face of the mandatory time limit. That is an internal Employer process entirely independent of, and unrelated to filing a complaint before the Board. Even were that not the case, the complainant had the result of the WDHP inquiry on July 14, 2020 but did not give notice of his proposal to file his complaint until November 19, 2020, some 6 months later, again, well beyond the required time limit.

26I am left with no alternative but to find that the Board is without jurisdiction to entertain this complaint as it seeks a remedy in respect of a term or condition of employment about which the Board is expressly precluded from entertaining, subject to the allegation of discrimination under the Code. Further, and in any event, the complainant had retired and was no longer a public servant at the time he filed his complaint and therefore the Board has no jurisdiction to consider the complaint in its entirety. Finally, the complaint is untimely and as such, the Board has no jurisdiction to entertain the complaint.

27Having regard to all of the above, this complaint is hereby dismissed for want of jurisdiction to entertain the complaint.