PSGB# P-2020-2705

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Berezowsky

Complainant

• and -

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

Employer

BEFORE

Marilyn A. Nairn

Vice Chair

FOR THE COMPLAINANT

Evelyn Berezowsky

FOR THE EMPLOYER

No one appearing for the Employer

Decision

1The Board is in receipt of a complaint filed by Evelyn Berezowsky (the “Complainant”), alleging that the Employer acted irresponsibly with respect to consideration of her 2019 performance rating. The complaint seeks an investigation into the process utilized for assigning her rating and a transparent process going forward, and to be assigned a rating with an associated performance pay increase for 2019.

2This complaint is essentially the same as a number of complaints that were filed with the Board challenging the assignment of performance ratings. Those complaints also sought a compensation increase based on the associated performance rating for 2018. The only other apparent difference in this complaint is that the Complainant appears to have been initially overlooked with respect to her performance evaluation due to the retirement of her direct supervisor. The complaint asserts that the evaluation was then conducted by a Deputy Superintendent who had limited knowledge of her performance.

3It is the finding of the Board that this complaint cannot proceed and it is hereby dismissed for the following reasons.

4Rule 11 of the Board’s Rules provides:

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.

5For purposes of this decision, I assume that the facts as set out in the complaint are true and provable. In the Board’s earlier decision Bowmaster v Ontario (Solicitor General), 2020 CanLII 105698 (ON PSGB), the issue of the Board’s jurisdiction to consider pay for performance was considered and determined as follows:

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.

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.

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)

26[The Complainant] 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.

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.

6Reading this complaint as broadly as possible, it remains the case that it takes issue with the evaluation of the Complainant’s performance, the method of that evaluation, and the compensation denied as a result of that evaluation, in not providing the Complainant with the merit pay increase that she feels she ought to have received. This Board simply has no jurisdiction to entertain those issues in light of sub-paragraphs 4 and 5 of Section 4 of Regulation 378/07.

7Therefore, having regard to all of the above, this complaint is hereby dismissed.