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HomeMy WebLinkAboutP-2003-2373.Mike Lee.06-03-21 Decision Public Service Commission des Nj Grievance Board griefs de la fonction publique Bureau 600 ~ Suite 600 Ontario 180 Dundas SI. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 P-2003-2373 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Mike Lee Grievor - and - The Crown In RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE Deborah J D LeIghton Vice-Chair FOR THE GRIEVOR Mike Lee FOR THE EMPLOYER Sean Kearney Semor Counsel Mimstry of Government ServIces HEARING June 15 2005 CONFERENCE CALL July 22, 2005 WRITTEN February 13 2006 SUBMISSIONS 2 DeCISIon Mike Lee, an OperatIOnal Manager wIth the Mimstry filed a gnevance wIth the board allegIng a breach of hIS terms of employment and workIng condItIOns wIth regard to the employer's polIcIes on "pay on assIgnment to a posItIOn" and "pay for performance ImtIatIve" ThIS board In a decIsIOn dated February 5 2004 dIsmIssed the gnevances In that decIsIOn the board noted as follows The PublIc ServIce Gnevance Board, as a statutory tnbunal, can only deal wIth those complaInts fallIng wIthIn ItS legIslatIve mandate ThIS mandate IS set out In Ontano RegulatIOn 977 R.R.O 1990 as amended by Ontano RegulatIOn 59/03 SectIOn 31 (4) of that amended regulatIOn now reads No gnevance shall Include a complaInt In respect of the folloWIng matters 1 A complaInt that a posItIOn should be classIfied. 2 A complaInt that a posItIOn IS In the wrong classIficatIOn. 3 A complaInt relatIng to a release from employment under subsectIOn 22(4 l)(ofthe Act) 4 A complaInt regardIng the method of evaluatIng an employee's performance 5 A complaInt regardIng the evaluatIOn of an employee's performance 6 A complaInt regardIng the compensatIOn provIded or demed to an employee as a result of an evaluatIOn of hIS or her performance Your complaInt on ItS face relates to eIther the method of performance evaluatIOn, or the performance evaluatIOn Itself, or the compensatIOn provIded or demed as a result of a performance evaluatIOn. For thIS reason It does not constItute a gnevance over whIch thIS tnbunal has JunsdIctIOn and, accordIngly It must be dIsmIssed. Upon receIpt of thIS notIce, Mr Lee wrote to the board argUIng that the gnevance should not be dIsmIssed for vanous reasons, but for the purposes of thIS decIsIOn noted that he had a separate gnevance wIth regard to pay admInIstratIOn assocIated wIth payment on the assIgnment to a posItIOn. In hIS letter dated February 16 2004 to the board he stated 3 The first gnevance refers to pay admInIstratIOn assocIated wIth payment on assIgnment to a posItIOn. It alleges a breach of the employer's polIcIes In that regard. As such, the gnevance refers to workIng condItIOns and not, as you IndIcate, "eIther the method of performance evaluatIOn, or the performance evaluatIOn Itself, or the compensatIOn provIded or demed as a result of a performance evaluatIOn." The gnevance IS filed under sectIOn 34(1) of the PSA Regulations and the restnctIOns found In sectIOn 31(4) do not apply Upon receIpt ofMr Lee's letter to the board, the board scheduled a medIatIOn that was not successful and, subsequently a heanng date was set for June 15 2005 At the outset of the heanng In June, Sean Kearney counsel for the employer argued that gIven Mr Lee's gnevance had been dIsmIssed by the board, the board wasfunctus and had no JunsdIctIOn to entertaIn hIS gnevances Mr Kearney relIed on the decIsIOn In Tyrrell et al. and MinistlY of Community Safety and Correctional Services (2004) P-2003-2687 et al. (Carter) where the board addressed the preCIse Issue of whether the board had the power to reconsIder an earlIer decIsIOn and found that It dId not. In ItS reasons for the decIsIOn, the board held It IS clear that It does not make good sense for a statutory tnbunal to schedule a heanng of complaInts that on theIr face ObvIOusly fall well outsIde the tnbunal's JunsdIctIOn. It IS for thIS reason that the board formulated practIce note #1 servIng notIce to the partIes that the board may dIsmIss a complaInt wIthout further consultatIOn or a heanng If that complaInt clearly falls outsIde of the board's JunsdIctIOn. ThIS procedure not only promotes efficIent use of the board's resources, but also aVOIds gIVIng complaInants false hope that theIr claims may have JunsdIctIOnal ment. On a specIfic questIOn on whether or not the board had the power to reconsIder a prevIOus decIsIOn the board held that "It does not have any Inherent procedural power to reconsIder a final decIsIOn." ThIS board, lIke any other statutory tribunal, IS a creatIOn of statute and does not possess Inherent powers to fashIOn ItS own processes In the absence of a legIslatIve mandate to do so Once a complaInt IS dIsmIssed, the board had exhausted ItS JunsdIctIOn, leavIng a complaInant the optIOn of eIther seekIng JudIcIal reVIew or fashIOmng a fresh complaInt that on ItS face could arguably fall wIthIn the board's JunsdIctIOn. 4 The Tyrrell et al. decIsIOn addressed multIple gnevors wIth gnevances relatIng to evaluatIOn and pay for performance The board found that Indeed on ItS face, even after heanng submIssIOns by the gnevors' counsel, that It would not have JunsdIctIOn to hear theIr cases However In Mr Lee's case, a second part of hIS gnevance related to "pay on assIgnment." SInce a number of gnevances relatIng to pay on assIgnment, Harris et al. were scheduled to be heard by the board on November 2, 2005 before Kathleen G O'NeIl, the Mimstry agreed to hold Mr Lee's gnevance In abeyance pendIng the decIsIOn In that case Should the board find that It had JunsdIctIOn to deal wIth the kInd of the gnevance Mr Lee was bnngIng wIth regard to pay on assIgnment, then there may have been an opportumty to look at a medIated settlement for Mr Lee on that Issue However If It was clear from the board's decIsIOn In Harris et al. that there was no JunsdIctIOn to hear such a case, then the Issue was clearly fimshed Harris et al. and Ministry of Community Safety and Correctional Services, P-2003- 1479 et al. was released In December 2005 In January the board asked for submIssIOns from counsel for the employer and Mr Lee as to theIr VIew of the status of hIS gnevance, gIven the decIsIOn In Harris et al HavIng carefully revIewed the submIssIOns of both partIes, I have come to the conclusIOn that Mr Lee's gnevance cannot go forward. The board In Harris et al. consIdered the type of claim made by the gnevor here, that when promoted to management an OM-16 should be entItled to more than the mImmum three percent Increase The board held In the board's VIew the portIOn of the gnevances claimIng more than three percent on promotIOn should be dIsmIssed because, even assertIng the fact asserted to be true and provable, no arguable breach of the pay on assIgnment polIcy has been shown. There IS no assertIOn that any of the gnevors were paid somethIng less than three percent or any greater Increase necessary to bnng the employee to the mImmum of managenal gnd on promotIOn. It IS the board's VIew that In order to have a vIable gnevance to the effect that an employee should have receIved more 5 than three percent on promotIOn, a gnevor would have to demonstrate that he or she needed more than three percent to get to the mImmum of the managenal pay scale and dId not receIve It, whIch IS not the case for any of the gnevors In the group dealt wIth In thIS decIsIOn. On thIS pOInt the polIcy language IS clear As wntten, the only entItlement to a pay Increase In the sectIOn of the pay on assIgnment polIcy quoted above IS In the first sentence "For management employees, pay on promotIOn IS three percent or an Increase to bnng the employee to the mImmum rate of the new salary range, whIchever IS greater" Increases greater than three percent necessary to bnng the employee to the mImmum rate of the new salary range are allowed, but there IS no other entItlement to an Increase, greater than three percent or to a meetIng to consIder such an Increase to be found In the language set out above More specIfically the fact that the polIcy sets out who must approve any Increase greater than three percent does not create any such entItlement. In Mr Lee's response to Mr Kearney's submIssIOn he specIfically obJects to the fact that he had no meetIng to decIde whether or not he was entItled to more than three percent on hIS pay on assIgnment. SInce the board has squarely dealt wIth thIS Issue, I find there IS absolutely no ment In Mr Lee's gnevance here Moreover I am bound by Tyrrell et al whIch says the board does not have the power to reconsIder a decIsIOn that has already been made In thIS case the gnevances were dIsmIssed on February 5 2004 and, therefore, there IS nothIng left to do but dIrect the RegIstrar to close thIS file Dated at Toronto thIS 21 st day of March, 2006 ~, ., .