HomeMy WebLinkAboutP-2007-3390. Szewczuk.08-09-16 Decision
Public Service Commission des
Grievance Board griefs de la fonction
publique
Bureau 600
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180, rue Dundas Ouest
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Toronto (Ontario) M5G 1Z8
Toronto, Ontario M5G 1Z8
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P-2007-3390, P-2007-3596, P-2007-3597, P-2007-3599, P-2007-3635, P-2007-3744, P-2007-3842,
P-2007-3868
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Szewczuk et al Grievor
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services)
Employer
BEFOREVice-Chair
Donald D. Carter
FOR THE GRIEVOR
Bob Szewczuk
FOR THE EMPLOYEROmar Shahab
Counsel
Ministry of Government Services
HEARINGSeptember 9, 2008.
2
Decision
These grievances allege that the employer did not follow its own operating procedures in respect
of compensation paid to the grievors for the period from April 1, 2006, to March 31, 2007. This
Board had earlier sought written submission on its jurisdiction to deal with these grievances and,
after considering these submissions, scheduled this hearing to hear full argument on whether
these grievances fell within its mandate.
The jurisdiction of the Public Service Grievance Board to deal with complaints about working
conditions or terms of employment has been circumscribed by section 4(2) of Regulation 378/07.
It reads:
(2) The following matters cannot be the subject of a complaint about a working
condition or about a term of employment:
1. The term or duration of the public servant?s appointment to employment by the
Crown.
2. The assignment of the public servant to a particular class of position.
3. A dismissal without cause under subsection 38 (1) of the Act or a matter relating
to such a dismissal.
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
The effect of section 4(2) is to preclude the Board from dealing with any complaints falling
within the scope of that provision regardless of the merits of the complaint itself. Of particular
relevance to these grievances is that part of section 4(2) dealing with performance evaluation and
the compensation resulting from performance evaluation.
The grievors submitted that these grievances were not about their performance evaluations, or
the manner in which they had been conducted. Rather, their grievances related to the fact that
the employer had, without notice, altered its operating procedures for the fiscal year 2006-07 in
that the compensation resulting from their performance evaluations had not been incorporated
into their compensation for that year but rather rolled into their compensation for the next fiscal
year. This process had had an adverse effect on their pay level for the fiscal year 2006 -07,
carrying further adverse implications for the calculation of their pension. Even though
compensation resulting from their performance evaluations was reflected in the 6.75% increase
in their grid for fiscal year 2007-08, the net result of this process, as the employer conceded, was
to produce a less favourable result for the grievors? pension calculation than if the employer had
followed its prior practice of making an annual adjustment. This practice had been set out in the
manual titled ?Management Compensation Plan, Pay for Performance Operating Procedures,
Effective: April 1, 2006?. The relevant portion reads ??The award is payable as an adjustment
to the salary effective April 1 of the new fiscal year, based on the salary as of March 31?.
The employer acknowledged the understandable frustration of the grievors because of the failure
to follow the procedure set out in the manual, but submitted that the Board nevertheless had no
jurisdiction to rectify what was frankly acknowledged as a labour relations problem.
4
Counsel for the employer submitted that the essence of these complaints related to the
compensation resulting from a performance evaluation, and clearly fell with the term
?compensation provided or denied to a public servant as a result of the evaluation of his or her
performance?. Given the nature of these grievances, counsel submitted that the Board had no
jurisdiction to deal with them regardless of how meritorious that these grievances might appear
to be.
The Board has given the submissions from both parties its careful consideration and, with some
reluctance, has concluded that it is without jurisdiction to deal with these grievances. The Board
has reached this decision reluctantly because the grievors do have a strong grievance on the
merits. Each of the grievors performed well in their job and received positive evaluations yet,
without prior notice to them, the employer changed its process for providing compensation for
their performance with the result that the calculation of their pensions has been adversely
affected. Despite the merit of these grievances, however, their essence is about the
compensation provided to the grievors as a result of their performance evaluation. This
compensation did not have as favourable effect for them as had compensation provided in
previous cycles but this does not alter the fact that the issue is still about compensation provided
as a result of a performance evaluation. The whole thrust of these grievances is about the
employer?s failure to follow the pay for performance operating procedures set out in the manual
for the payment of the performance award.
5
In these circumstances, the Board can reach no conclusion other than these are complaints about
?the compensation provided or denied to a public servant as a result of the evaluation of his or
her performance?. Section 4(2) of Regulation 378/07 clearly places such matters outside the
jurisdictional reach of this Board, and for this reason these grievances are dismissed.
th
Dated at Toronto, this 16 day of September, 2008.
Donald D. Carter, Chair