PSGB# P-2021-1349
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE OF ONTARIO ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Seales
Complainant
- and -
The Crown in Right of Ontario (Ministry of the Solicitor General)
Employer
BEFORE
Thomas Kuttner, Q.C.
Vice Chair
FOR THE COMPLAINANT
Self Represented
FOR THE EMPLOYER
Andrew Lynes Treasury Board Secretariat Legal Services Branch Counsel
HEARING
January 7 and January 28, 2022 (Written submissions)
Decision
Introduction
1. This is a complaint filed on September 27, 2021, pursuant to subsection 4(1) of O. Reg. 378/07 (“the Regulation”) under the Public Service of Ontario Act, 2006, S.O. 2006, c.35 Sch. A (“the Act”). In it, the Complainant, Iona Seales, Deputy Staff Sergeant at the Ontario Correctional Institute, Brampton ON, (“OCI”) alleges that while she was on secondment as Acting Deputy Superintendent Operations at OCI, her supervisor, Ms. Capener, downgraded her annual FORTE evaluation by way of retaliation for a Workplace Discrimination and Harassment Policy complaint (WDHP) and a grievance to the Board which Ms. Seales had filed against her. By way of relief she seeks that the Employer undertake never to have Ms. Capener supervise her in any capacity in the future, and damages.
2. The Employer has made a preliminary objection to the jurisdiction of the Board to entertain this complaint, inasmuch as it is with respect to Ms. Seales’ performance review for the period April 1, 2020 to March 31, 2021, given the provisions of section 4(2) of the Regulation which stipulate:
4(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.
3. In support of the Employer’s preliminary objection, Counsel referenced the following jurisprudence of the Board: Allen et al v Ontario (MCSCS), 2009 CanLII 43639 (ON PSGB); Bowmaster v Ontario (Solicitor General), 2020 CanLII 105698 (ON PSGB); Berezowski v Ontario (Solicitor General), 2021 CanLII 82509 (ON PSGB); McIntosh v Ontario (Solicitor General), 2021 CanLII 16211 (ON PSGB); Younger v Ontario (Environment), 2007 CanLII 30471 (ON PSGB); Berenbaum v Ontario (Labour), 2011 CanLII 23299 (ON PSGB); and, Schmohl v Ontario (MCSCS), 2015 CanLII 89902 (ON PSGB);
Background
4. Ms. Seales is a longtime employee in the Ontario correctional system with nineteen years’ service in various positions. Her home institution is the Toronto South Detention Centre (“TDSC”). The incident which precipitated her complaint was a comment included in her FORTE assessment by Ms. Capener, who had been her supervisor for 3 months in the April 2020-March 2021 assessment period, while she was fulfilling the role of Staff Sergeant.
5. FORTE is the name of the performance/talent management program used in the Ontario Provincial Service (the OPS”). It is used as an instrument to identify and source talent for current job opportunities and to support evidence-based talent decision making. Broadly speaking information collected comprises career history, education, skills, licenses and certifications, accomplishments and career interests and aspirations. Internal career history is retrieved from the OPS Workforce Information Network (“WIN”). FORTE is a principal source of information to support recruitment initiatives. Annual FORTE evaluations are used to assist in determining whether the employee will or will not be awarded a merit increase in compensation.
6. The incident which precipitated this complaint was the inclusion of negative remarks made by Ms. Capener in the employee annual FORTE performance review. There, Ms. Capener wrote in her final comments as manager of Ms. Seales:
Ms. Seales has an advanced understanding of operations and has held various positions during her tenure as a Sergeant and Staff Sergeant. Ms. Seales requires some improvement to working collaboratively with direct reports and embracing change. Ms. Seales could also benefit from improving her political acuity to assist matters that impact government priorities and view matters from multiple lenses. Ms. Seales could also benefit from owning decisions and taking the initiative to make informed decisions based on information present. Overall, Ms. Seales has the tools, resources and experience to overcome these hurdles.
7. This assessment departed markedly from positive assessments made of Ms. Seales’ performance in the past several years:
May 29, 2020: “Iona is a leader and an asset to the Ministry and TSDC. Iona is clear when giving direction and assists with staff development and compliance in her role. She advises senior management of compliance issues and concerns and is dedicated to her position. Iona is a team player”.
April 3, 2019: “Iona is an excellent team member in security. She is an asset to the unit and TSDC. Iona demonstrates high standards of integrity and ethical behavior and is consistent with OPS values, principles and professional standards.”
April 12, 2018: “Iona has strong leadership qualities and would benefit from a mentoring program and/or leadership training to restructure and improve these qualities. … Iona has a sound knowledge of MCSCS policies. Her knowledge is an asset. Iona has the ability to move further in her career and should continue to work towards expanding her professional attributes.”
8. Ms. Seales immediately took action to challenge Ms. Capener’s negative assessment. She emailed the Superintendent of TSDC, Donata Calitri-Bellus asserting that the “disparaging” comments made by Ms. Capener were written without any performance management, coaching or mentoring. Moreover, contrary to normal policy, Ms. Capener held no performance or FORTE meetings with Ms. Seales, nor reviewed her rating with her. In the email, Ms. Seales described the negative comments made by Ms. Capener as “her way to discriminate against me, sabotage my career and cause harm to my career enhancement.”
9. At the root of these allegations, Ms. Seales wrote in her Notice of Proposal to the Deputy Minister:
I have been having issues with Ms. Capener’s behaviour for some time now. She has harassed this writer ongoing around my schedules, my assignments and has ongoingly treated me with disdain and disrespect. On October 26, 2020 I filed a grievance with the PSGB around scheduling practices that were clearly biased and to disadvantage of this writer. (that grievance is still pending)1. On November 02, 2020, I filed a WDHP complaint against Ms. Capener and her ongoing behaviour with this writer.
In short, Ms. Seales has alleged bias, bad faith and reprisal by Ms. Capener in her assessment of her in FORTE.
The Law
10. In Allen supra the Board noted at paragraph 11:
Starting with jurisdiction, the regulation set out above makes it abundantly clear that the Board has no jurisdiction over complaints that relate to the evaluation of a public servant’s performance or the method of evaluating his or her performance.
11. In Bowmaster, the Board canvassed its jurisprudence and found that even in the case where a complainant alleges that a performance review was conducted by the Employer in a manner that was arbitrary, discriminatory or in bad faith, the Regulation prohibits it from entertaining the complaint. There it wrote at paragraphs 34 and 35:
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”.
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.
12. And see Berezowsky supra at paragraph 5 where the Board cites extensively from Bowmaster in determining that for the same reasons, it lacked jurisdiction to entertain that complaint. And similarly in McIntosh supra at paragraph 6.
13. It is clear in the instant case, that what Ms. Seales is complaining about is “The evaluation of a public servant’s performance or the method of evaluating his or her performance.” Even assuming as true, that her allegation that Ms. Capener acted in bad faith in assessing her performance poorly on FORTE as an act of retaliation, the provisions of the Regulation, itself reflecting the will of the Legislative Assembly, deprive the Board of jurisdiction to entertain Ms. Seales’ complaint.
14. For the foregoing reasons, this complaint is dismissed.
Dated at Toronto, Ontario this 21st day of March, 2022.