HomeMy WebLinkAboutP-2003-2687.Tyrrell et al.04-12-07 Decision
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P-2003-2687 P-2003-2800 P-2003-2810 P-2003-2904 P-2003-3020 P-2003-3021 P-2003-3023
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IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Tyrrell et al Grievor
- and -
The Crown In RIght of Ontano
(Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer
BEFORE Donald D Carter Chair
FOR THE GRIEVOR Andrew F Camman
PolIshuk, Camman and Steele
BarrIsters and SOlICItorS
FOR THE EMPLOYER Sean Kearney
Counsel
Management Board Secretanat
HEARING November 16 2004
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DeCISIon
ThIS deCISIOn anses from a heanng scheduled for the purpose of provIdIng the gnevors
opportumty to make oral argument as to why the Board should reconsIder ItS earlIer deCISIOn to
dIsmIss certaIn complaInts relatIng to pay for performance One of these complaInts was filed by
Ann WhIte, OperatIOnal Manager Central East CorrectIOnal Center Set out below are the stated
grounds of thIS complaInt and the settlement requested
"1) The OPS corporate cap of 20% of employees who can receIve an exceeds ratIng IS
arbItrary and dISCnmInatory a clear vIOlatIOn of the WDHP operatIng polIcy
2) The employer has faIled to follow It'S own polIcy on the ImplementatIOn of the MCP
pay for performance plan by not completIng the performance evaluatIOns and learnIng
plans/targets wIth OCR-OM16 employees as outlIned In the polIcy
3) The Employers faIlure to recogmze OCR-OM16 who partIcIpated In the labor
dIsruptIOn by not awardIng "exceeds all" ratIng and performance pay IS dISCnmInatory
and contradIcts the Mimsters statement of employee performance dunng the labor
dIsruptIOn In hIS open letter to managers In whIch he stated,(paraphrased) managers are
to be commended for exceptIOnal work and performance dunng thIS IncIdent.
4) The Mimstry's admInIstratIOn of the MCP pay for performance plan has created more
and greater pay IneqUItIes between pay classes IncludIng but not lImIted to ActIng OCR-
OM16 managers and Confirmed OCR-OM16 managers, and between Confirmed OCR-
OM16 managers and other Confirmed OCR-OM16 managers
Settlement ReqUIred
3
a) All OCR-OM16 managers who partIcIpated In the OPSEU labor dIspute to receIve
"exceeds all" ratIngs and appropnate pay for performance for all hours worked.
b) Complete reVIew ofMCP P4P process to ensure that Confirmed OCR- OM16
managers salary IS reflectIve of the responsIbIlItIes In relatIOn to actIng operatIOnal
managers, regardless of theIr placement In the Imposed salary gnd as dIrected by the
Mimstry of PublIc Safety and Secunty
c) InvestIgatIOn Into the demonstrated Incompetence of the employer's InabIlIty to fairly
and adequately admInIster a salary/pay program to OCR- OM 16's In the Mimstry of
PublIc Safety and Secunty/CorrectIOns DIVISIOn."
ThIS complaInt was dIsmIssed by thIS Board In a decIsIOn dated February 5 2004 The
decIsIOn stated
"The PublIc ServIce Gnevance Board has consIdered your complaInt dated December 2,
2003
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 RRO 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 1) of the Act,
4
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.
Please be advIsed that thIS decIsIOn relates only to the JunsdIctIOn of the PublIc ServIce
Gnevance Board to deal wIth your complaInt and In no way constItutes a determInatIOn
of the ments of your complaInt."
Other complaInts, worded In a sImIlar manner as Ms WhIte's complaInt, were consIdered
by the Board and dIsmIssed by the Board at the same tIme and for sImIlar reasons Subsequent
to the dIsmIssal of these complaInts, the Board receIved a letter from Andrew F Camman of the
law firm, PolIshuk Camman & Steele, dated March 5 2004 requestIng that the Board reconsIder
ItS decIsIOns to dIsmIss these complaInts The letter stated
"We are wntIng on behalf of the gnevors Involved wIth a "group gnevance" dealIng wIth
pay for performance Issues, whIch were filed by the partIes lIsted In AppendIx "A"
Please note that the lIst of gnevors attached may be Incomplete and may change from
tIme to tIme We wIll attempt to update thIS lIst as much as possIble In order to keep It
5
current. We would ask at thIS tIme that all of the IdentIcal gnevances filed on pay for
performance Issues be consolIdated and dealt wIth as a "group gnevance"
We have revIewed your form letter whIch apparently IS beIng sent to each of the gnevors
and whIch purports to dIsmIss the gnevances based on a lack JunsdIctIOn to hear the
matter pursuant to sectIOn 31(4) ofOntanoRegulatIOn 59/03
Please note that a maJor complaInt raised In thIS group gnevance IS the employer's faIlure
to complete performance evaluatIOns at all, whIch IS In dIrect vIOlatIOn of the employer
polIcIes and procedures The complaInt IS formed In large part on the fact that the
employer IS cIrcumventIng the polIcy by faIlIng to complete performance appraisals, and
therefore makIng pay for performance decIsIOns outsIde of the mandated polIcy It IS our
submISSIOn that thIS type of complaInt falls squarely wIthIn the Board's JunsdIctIOn and
should therefore be heard by the PSGB We would therefore ask you to reconsIder each
of the decIsIOns to dIsmIss"
In a letter dated March 9 2004 the Board wrote to Mr Camman adVISIng hIm that It
would schedule a heanng for the purpose of provIdIng the opportumty to make oral argument as
to why the Board should reconsIder ItS decISIOn to dIsmIss the complaInts referenced In hIS letter
CopIes of thIS letter were sent to representatIves of the employer On May 20 2004 counsel for
the employer Sean Kearney wrote to the Board adVISIng It that It was the employer's posItIOn
that the Board had no JunsdIctIOn to reconsIder ItS earlIer decISIOns The letter stated
"I am wntIng wIth respect to a number of gnevances concernIng pay for performance
whIch were all dIsmIssed on February 2, 2004 on your order due to the clear absence of
JunsdIctIOn on the part of the Board to hear such gnevances
6
I have recently been retaIned by the Mimstry as a result of your letter of March 9 of thIS
year whIch states that despIte your earlIer decIsIOns, the Board wIll now schedule a
heanng for oral arguments as to potentIal reconsIderatIOn of the Board's earlIer decIsIOns
(see the attached copy of that letter and subsequent NotIce of ProceedIng) The decIsIOn
to schedule a further heanng date IS apparently In response to a request for
reconsIderatIOn contaIned In a letter dated March 5 2004 from Andrew Camman, counsel
for the gnevors seekIng reconsIderatIOn. Unfortunately that request by Mr Camman was
not dIsclosed to the Mimstry untIl after you had sent out your letter of March 9 2004
It IS the posItIOn of the Mimstry that your ImtIal decIsIOns must stand and that the PSGB
IS sImply not authonzed to reconsIder ItS ongInal decISIOns to dIsmIss for a number of
reasons whIch I wIll set out below
FIrst, It must be emphasIzed that the Board has no statutory or legal authonty to
"reconsIder" ItS earlIer final decIsIOns as the Board IS clearly functus officio It IS settled
law that once an arbItrator has made hIS award and reached a final conclusIOn, s/he
cannot later alter that award, In the absence of statutory authonty otherwIse ThIS IS
partIcularly so when the award has been reduced to wntIng. Furthermore S 40(1) of
Reg. 977 of the Public Service Act the governIng regulatIOn for thIS Board, clearly states
that the decIsIOn of the Board on a gnevance IS final, and IS therefore not open to further
consIderatIOn. As a result, any attempts to reconsIder the Board's earlIer decIsIOns are
void ab initio
A sImIlar bar agaInst reconsIderatIOn applIes to decIsIOns InvolvIng the OPSEU and
AMAPCEO bargaInIng umts before the Gnevance Settlement Board. As there IS no
dIscretIOnary authonty whatsoever to grant reconsIderatIOn, the only recourse avaIlable to
gnevors who take Issue WIth the determInatIOn of theIr claims by thIS Board IS to file an
7
applIcatIOn for JudIcIal reVIew before the DIvIsIOnal Court pursuant to the Judicial
RevieYf, Procedure Act
ThIS bar agaInst reconsIderatIOn In the context ofPSGB gnevances contrasts markedly
wIth other statutory regImes In thIS provInce For example, both the Ontano Labour
RelatIOns Board and the Ontano Human Rights CommIssIOn are explIcItly granted the
statutory power of reconsIderatIOn VIa theIr govermng statutes However those tnbunals
are very restncted In theIr abIlIty to utIlIze theIr dIscretIOnary authonty even wIth respect
to requests for reconsIderatIOn of decIsIOns rendered by InVestIgators or human nghts
officers, rather than arbItrators In addItIOn, such requests are subJect to extremely short
tImelInes (s 37 of the Human Rights Code reqUIres reconsIderatIOn requests to be filed
wIthIn fifteen days of the decIsIOn) Conversely as aforementIOned, the Public Service
Act In no way provIdes for the power of reconsIderatIOn and Indeed ItS regulatory
language clearly prohIbItS reconsIderatIOn of the Board's decIsIOns
Secondly as emphasIzed In your decIsIOns of February 5 the relevant, statutory and
regulatory authontIes explIcItly underlIne that the PSGB has no JunsdIctIOn whatsoever
to hear or determIne matters that relate In anyway to J ob performance Regardless of
whether these former gnevors now allege a faIlure to properly complete performance
evaluatIOns or a faIlure to complete evaluatIOns at all, the statute remaInS clear that
gnevances shall not Include anythIng to do wIth the evaluatIOn of Job performance or the
compensatIOn provIded or demed to an employee as a result of an employee's
performance The language as set forth explIcItly In Reg 59/03 could not be more clear
(4) No gnevance shall Include a complaInt In respect of the folloWIng matters
1 A complaInt that a posItIOn should be classIfied.
8
2 A complaInt that a posItIOn IS In the wrong classIficatIOn.
3 A complaInt relatIng to a release from employment under subsectIOn 22(4 1) of the
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
As a result, even the allegatIOn contaIned In Mr Camman's letter that the employer has
faIled to complete performance evaluatIOns when makIng pay for performance decIsIOns
IS clearly outsIde 'the JunsdIctIOn of thIS tnbunal The manner In whIch pay for
performance decIsIOns were determIned ObvIOusly relates to the method of evaluatIOn of
an employee's performance and the compensatIOn provIded or demed as a result of that
method. WhIle polIcIes and procedures may call for evaluatIOns to be performed In a
certaIn manner management IS clearly Insulated from gnevances that attack the
methodology utIlIzed to arnve at any and all decIsIOns regardIng compensatIOn. So there
IS sImply no legal or statutory foundatIOn for thIS attack on the nature of the Pay for
Performance process
In lIght of the foregoIng, we would now request that you confirm that the September 21
heanng date IS unnecessary and wIll be cancelled. In the event that the Board stIll
remaInS open to potentIal reconsIderatIOn of ItS earlIer decISIOn, the Mimstry may be
reqUIred to apply for JudIcIal reVIew for appropnate relIef
In the event that you have any questIOns or would lIke the employer to file a copy of any
of the relevant Junsprudence, I would he happy to respond."
9
On June 4 2004 the Board responded to thIS letter adVISIng Mr Kearney that hIS letter
had raised an Important Issue that would reqUIre full oral argument at the outset of the heanng
that had been scheduled for thIS matter ThIS heanng was held on November 16 2004 at whIch
tIme Mr Kearney renewed hIS obJectIOn that the Board had no JunsdIctIOn to reconsIder these
matters and that the complaInts, even as restated by Mr Camman, fell outsIde the Board's
JunsdIctIOn. As well as restatIng the arguments that had been made In hIS earlIer letter to the
Board, Mr Kearney pOInted out that sectIOn 2 of the Board's Rules and PractIce Notes provIded
that
"Where the Board consIders that a gnevance does not make out a case for the orders or
remedIes requested, even If all the facts stated In the gnevance are assumed to be true, the
Board may dIsmIss the gnevance wIthout a heanng or consultatIOn. In ItS decISIOn the
Board wIll set out ItS reasons"
ThIS procedure IS set out In greater detaIl In the Board's PractIce Note # 1 It states
"Upon receIpt of a gnevance the PublIc ServIce Gnevance Board (the Board) may on ItS
own volItIOn or on the request of a party screen a gnevance for JunsdIctIOn before lIstIng
the gnevance for heanng. When It appears on the face of the gnevance applIcatIOn that
the Board IS wIthout JunsdIctIOn to hear the gnevance because the gnevor IS not a publIc
servant under the JunsdIctIOn of a Deputy Mimster (see P0037/92 Rampersad and WCB
P006/87Pelissero and Go Transit and P0045/93 Wells Larson and the LCBO) or the
Board IS wIthout JunsdIctIOn to grant a remedy (see P0144/95 Laird et al P0050/95
Blakney et al P0024/99 Armstrong et al and P0025/99 Easto et al.) even If all the facts
stated In the gnevance applIcatIOn are assumed to be true
10
The Board may dIsmIss the gnevance wIthout a heanng or consultatIOn. However when
the Board deems It necessary the Board may request and set a date for receIpt of further
partIculars, InformatIOn or submIssIOns regardIng the gnevance
When the Board requests and sets a date for receIpt of further partIculars, InformatIOn or
submIssIOns regardIng the gnevance the Board may
1 DIsmIss the gnevance wIthout a heanng, If the partIculars, InformatIOn or
submIssIOns regardIng the gnevance are not receIved the Board on the date set;
2 DecIde that there IS a need for a heanng to deal wIth any Issue regardIng ItS
J un sdI ctIOn,
3 Request further submIssIOns from the partIes before decIdIng whether or not to hold a
heanng;
4 DIsmIss the gnevance wIthout a heanng when the Board has determIned that It IS
wIthout JunsdIctIOn to hear or grant a remedy based upon ItS reVIew of the partIculars,
InfOrmatIOn or submIssIOns regardIng the gnevance "
The Board, accordIng to Mr Kearney had properly followed ItS own procedures and, by
operatIOn of sectIOn 40(1) of RegulatIOn 977 ItS decIsIOns on the complaInts In questIOn must be
treated as final Moreover SInce sectIOn 31 of the Public Service Act provIded that the StatutOlY
POYf,ers Procedure Act dId not apply to any proceedIng or decIsIOn made under the Public
Service Act or ItS regulatIOns, the Board was not bound to follow the procedures for statutory
decIsIOn makers set out In the Statutory POYf,ers Procedure Act GIven that the Board had
properly followed ItS own procedures and In dOIng so had reached a final decIsIOn, the Board
then had no JunsdIctIOn to reopen these matters In the absence of any express statutory power to
reconsIder a decIsIOn once It had been made At thIS pOInt, If the complaInants consIdered the
11
Board to have erred, theIr recourse was to seek JudIcIal reVIew Mr Kearney argued that thIS
result was entIrely consIstent WIth the doctnne offunctus officio that applIed generally to arbItral
tnbunals such as the PublIc ServIce Gnevance Board.
Mr Camman argued that the Board had an Inherent JunsdIctIOn to control ItS own
process In VIew or the fact that the Board had made ItS deCIsIOns wIthout reCeIVIng submISSIOns
from the complaInants, It was well wIthIn thIS Inherent JunsdIctIOn to remedy that breach of
natural JustIce by reconsIdenng ItS deCISIOn after provIdIng the opportumty for oral argument - a
procedure that would be far less onerous for complaInants than seekIng JudIcIal reVIew
AccordIng to Mr Camman, thIS broad and lIberal InterpretatIOn of our JunsdIctIOn was reqUIred
because of the power Imbalance between the employer and the non-umomzed employees who
had brought the complaInts In support of such an approach, Mr Camman referred to the
decIsIOn of the Supreme Court of Canada In Machtinger v HOJ Industries Ltd (1992),91 D.L.R
(4th) 491 Mr Camman further argued that there was good reason for the Board to reconsIder
sInce, If the Board had provIded an opportumty for submIssIOns, the complaInants would have
argued that the employer had faIled to evaluate them at all ThIS argument, accordIng to Mr
Camman, was not excluded from the Board's consIderatIOn by sectIOn 31 (4) of the amended
RegulatIOn.
These arguments raise Important Issues relatIng to the Board's processes for screemng
gnevances FIrst, It IS clear that It does not make good sense for a statutory tnbunal to schedule a
heanng of complaInts that are on theIr face ObvIOusly fall well outsIde the tribunal'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
12
have JunsdIctIOnal ment. There IS no questIOn that the complaInts as ImtIally worded clearly fell
outsIde the Board's JunsdIctIOn and, even wIth the gloss added later by Mr Camman, they would
stIll fall outsIde the Board's JunsdIctIOn. It IS because of a clear lack of JunsdIctIOn that the
Board dIsmIssed the complaInants ImtIally Regardless of the most generous readIng one could
gIve to the complaInts, they all related to the evaluatIOn of the complaInants' performance It
may be that, as alleged by the complaInants, the evaluatIOns process was flawed or Incomplete
but the fact remaInS that each of the complaInants receIved a pay for performance component In
theIr pay
Even IfMr Camman's later argument had some JunsdIctIOnal ment, a maJor hurdle to
reconsIderatIOn IS the lack of any legIslatIve authonty provIdIng the Board wIth an express power
to reconsIder The Board concludes that It does not have any Inherent procedural power to
reconsIder a final decIsIOn. ThIS Board, lIke any other statutory tnbunal, 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 optIOns of eIther seekIng JudIcIal reVIew or fashIOmng a fresh
complaInt that on ItS face could arguably fall wIthIn the Board's JunsdIctIOn
The Board, therefore, concludes that It does not have JunsdIctIOn to reconsIder ItS
decIsIOns In respect of these complaInts and that ItS decIsIOns to dIsmIss these complaInts must
stand.
ronto thIS ih day of December 2004
Donald D Carter
Chair