Parkes v. The Crown in Right of Ontario (Ministry of the Solicitor General), 2022 CanLII 31379

PSGB# P-2021-1323

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Parkes

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

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel

HEARING

December 9, 2021 and January 28, 2022 (written submissions)

Decision

Introduction

1This is a complaint filed on September 21, 2021, pursuant to subsection 4(1) of O Reg 378/07 (“the Regulation”) under the Public Service of Ontario Act, 2006, SO 2006 c.35 Sch A (“the Act”). In it, the Complainant, Christopher Parkes, a Sergeant at the Monteith Correctional Complex (“Monteith”), alleges that he has been “disciplined socially and monetarily” two years running — 2018-2019 and 2019-2020 — in respect to his performance rating and the associated monetary compensation.

2A case management hearing conference call was held in this matter on December 8, 2021 at which time Counsel for the Employer advised that it challenged the jurisdiction of the Board to entertain the within complaint inasmuch as the provisions of subsection 4(2).4 and .5 stipulate that neither an employee’s performance rating, nor the associated monetary compensation can be the subject of a complaint about a working condition or about a term of employment. At that time it was agreed between the parties that this jurisdictional issue would be determined on the basis of written submissions prior to proceeding further with the processing of the complaint.

3This decision addresses only the jurisdictional issue and for the reasons here given the Board has determined that it has no jurisdiction to entertain this complaint on the merits.

Background

4The Complainant commenced his employment with the Employer in 2000, as a correctional officer. As such he was a member of the bargaining unit represented by the Ontario Public Service Employees Union (“OPSEU”). In September 2017, he competed for and was promoted to the position of Sergeant at Monteith, and as a member of management fell outside of the bargaining unit. He progressed under the Employer’s rating system — FORTE — until November 2019, and received a salary merit increase in accordance with the Employer’s Pay for Performance (“P4P”) policy. His salary plateaued at $79,461 per year.

5The Complainant has a committed work ethic as reflected in the great amount of overtime he worked throughout his career and in particular as a Sergeant. In the 2019-2020 calendar year he worked an additional 632.5 hours of overtime; in the 2020-21 calendar year he worked an additional 845 hours of overtime; and to the date of filing his complaint in the 2021-2022 calendar year he had worked 607 hours of overtime, despite his having missed eight (8) shifts due to sick leave.

6In the 2018-2019 calendar year, his Forte performance rating was “Met Most Expectations”, a rating which disentitled him to receive a P4P merit increase. The Complainant describes himself as “devastated” at this performance rating which was “unwarranted”, as he had never been advised that the Employer had any issues with his job performance. On inquiry, the Complainant was advised that his performance rating by his immediate supervisor had been “Met Expectations” which would have entitled him to receive a P4P merit increase. That performance rating was changed by regional superiors, who are didn’t know him, his work ethic, attendance or abilities, to the performance rating of “Met Most Expectations”.

7Much the same was his performance rating for the 2019-2020 calendar year, ie “Met Most Expectations” again a rating made regionally and changing the rating made locally by his immediate supervisor of “Met Expectations. And when his 2021 rating came out, yet again his performance rating was “Met Most Expectations”, the Complainant was “crushed and felt defeated”. Again the performance rating had been changed by regional superiors from the performance rating of “Met Expectations” given by his immediate supervisor.

8Not only has there been loss of P4P, but loss of his ability to “climb the pay scale”. As a result, the Complainant’s annual salary is some $2700.00 less that of the correctional officers whom he supervises. Moreover, recently hired Sergeants start off at a higher wage rate than the Complainant earns as they were higher paid correctional officers. They earn approximately $5158.00 more annually than the Complainant. He feels that he is not being treated fairly, and that the performance rating system is based on a quota determined by regional management for ratings of Sergeants as “Met Expectations”, and so eligible for P4P merit increases, unrelated to their actual performance. Hence the “Met Most Expectations” rating.

Analysis and Decision

9The Board is sensitive to the frustration felt by the Complainant at the manner in which the Employer implements the performance evaluation system and his sense of being treated unfairly. However, despite the impact which that system has on the Complainant, both socially and monetarily, it is incorrect to characterize it as disciplinary. Rather, the performance evaluation system is established as a working condition or term of employment pursuant to the Act

10The Act stipulates at section 33:

(1) The Management Board of Cabinet may, by directive, create classes of position for public servants appointed by the Public Service Commission and determine the duties of and qualifications for the positions.

(2) The Management Board of Cabinet may, by directive, determine salary ranges or wage ranges for public servants appointed by the Public Service Commission.

(3) The Management Board of Cabinet may, by directive, determine other remuneration, including benefits, for public servants appointed by the Public Service Commission.

(4) The Management Board of Cabinet may, by directive, establish other terms and conditions of employment for public servants appointed by the Public Service Commission and for deputy ministers.

(5) Directives issued under this section may be general or particular in their application.

And at section 44:

44 (1) The Public Service Commission may delegate any of its powers, duties or functions under subsection 32 (1) and sections 34 to 42 in respect of public servants appointed by it to work in a ministry to the deputy minister of the ministry.

11The directive authority granted to the Management Board of Cabinet by the Act is plenary. Both the Employer’s performance rating system — FORTE— and the Pay for Performance merit wage policy fall squarely within its purview, as stipulated at subsections 33(2) and (3). Absent arbitrariness, discrimination or bad faith, the Employer has a broad discretion in its implementation of both. Despite its being perceived by the Complainant as being unfair, there is nothing here in the implementation by the Employer of either the performance rating system or the P4P associated monetary compensation that can be said to be arbitrary, discriminatory or in bad faith.

12That said, why then cannot a complaint with respect to both be made by the Complainant, since both fall within the broad categories of working condition or term of employment? Indeed, but for the provisions of section 4 of the Regulation, such a complaint could be made and the Board entertain it. However, these stipulate in relevant part:

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.

13The Board has had occasion recently to rule on the exclusionary effect of subsection 4(2), on what would otherwise be within its purview to entertain a complaint about a working condition or a term of employment. That was in Bowmaster et al v The Crown in Right of Ontario, (Ministry of the Solicitor General) 2020 CanLII105698 (ON PSGB), a case on all fours with the complaint here at issue. There, each of the Complainants challenged the Employer’s actions in respect of their performance rating and the associated compensation alleging that it had acted in a manner that was arbitrary, discriminatory and in bad faith.

14In a fulsome decision which canvassed its earlier jurisprudence on the subject, the Board concluded at paragraphs 34 and 35:

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.

15Given the limitation on the scope of the Board’s jurisdiction, stipulated at paragraphs 4(2).4 and .5 of the Regulation, the Board, as in the Bowmaster case, has no jurisdiction to entertain the within complaint. Accordingly, this complaint is dismissed.