HomeMy WebLinkAboutP-2019-1829.Bowmaster et al.20-07-31 Decision
Public Service
Grievance Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission des
griefs de la fonction
publique
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
PSGB# P-2019-1829, P-2019-1891, P-2019-1892, P-2019-1932, P-2019-1953, P-2019-2026,
P-2019-2088, P-2019-2089, P-2019-2090, P-2019-2156
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE OF ONTARIO ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Bowmaster, Lessel, Lessel, Dalton, Narburgh,
Dwyer, Cartwright, Tomlinson, Reay, Kloosterman Complainant
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General)
(Ministry of Children, Community and Social Services) Employer
BEFORE Marilyn A. Nairn Vice Chair
FOR THE
COMPLAINANTS
Self Represented
Andrea Wobick (Counsel)
(Representative for Complainant Dwyer)
FOR THE EMPLOYER
Ursel Phillips Fellows Hopkinson LLP
Peter Dailleboust (Senior Counsel)
Treasury Board Secretariat
Legal Services Branch
SUBMISSIONS Written representations received by May 20,
June 17, and July 2, 2020
- 2 -
Interim Decision
[1] In an interim decision dated April 16, 2020 the Board noted as follows:
Each of these complaints challenges the Employer’s treatment of the
complainant in respect of their performance rating and the associated
compensation. Although the factual bases in each case differ somewhat,
the complaints essentially all assert that, having conducted a performance
evaluation of the complainant, the Employer then improperly changed that
performance rating to the detriment of each complainant. The alleged
reasons for the Employer’s actions vary but include allegations that the
Employer acted in a manner that was arbitrary, discriminatory, and/or in bad
faith. Some of the complaints specifically make allegations of discrimination
under the Human Rights Code.
In each case, and relying on sub-paragraphs 4 and 5 of section 4(2) of
Ontario Regulation 378/07, the Employer takes the preliminary position that
the Board has no jurisdiction to entertain the complaint and seeks to have
each complaint dismissed without an inquiry into its merits.
[2] That interim decision determined that the complaints would be consolidated at
least for purposes of dealing with the preliminary objection as to the Board’s jurisdiction
to entertain the complaints. Due to the Board’s inability to conduct in-person proceedings
due to Covid-19 restrictions, that interim decision also established a timetable for the
receipt of the parties’ ‘will-say’ statements to determine the extent to which facts might be
in agreement, in dispute, or not contested for purposes of the preliminary issue.
[3] The timetable for receipt of the ‘will-say’ statements was subsequently extended
as a result of delays due to the restrictions around Covid-19, but have now been received.
[4] It would appear that much of the factual information alleged either in the complaints
or in the ‘will-say’ statements of all parties is either not in dispute or is not contested. The
characterization of certain of those facts is in dispute. Copies of documentary material
including various policies were provided, including the Employee Performance Policy, the
In-Range Movement Policy, and the Merit Pay Policy, as well as factual information
regarding each complainant’s allegations and the Employer’s response. For purposes of
this preliminary objection, it is assumed that the facts alleged are true and provable, even
while the characterization of those facts may be in dispute.
[5] As Covid-19 continues to restrict in-person proceedings, and having regard to the
factual information alleged in the complaints and the ‘will-say’ statements filed, legal
submissions will be received from the parties in writing with respect to the Employer’s
preliminary objection as to the Board’s jurisdiction to entertain these complaints.
[6] The Employer has not yet filed its formal Form 2 response. That response is
expected as part of the following direction to the Employer to provide its written argument
with respect to its position that, pursuant to sub-paragraphs 4 and 5 of section 4(2) of
- 3 -
Ontario Regulation #378/07, the Board has no jurisdiction to entertain these complaints.
Those submissions should address any and all various individual assertions, including
but not limited to assertions that the complainant is not grieving the manager’s
performance rating but is seeking, further to the Employee Performance Policy, that said
rating be restored, and further, that a performance rating is utilized for employment
opportunities beyond compensation.
[7] Having regard to paragraph [6] above, the Employer’s written submissions are to
be filed by email with the Board with a copy provided to each complainant by no later
than Wednesday, August 26, 2020.
[8] Written submissions from each complainant in response, setting out their
argument (as opposed to the facts on which they rely) as to why the Board has jurisdiction
to entertain their complaint, are to be filed by email with the Board, with a copy to the
Employer, by no later than Wednesday, September 30, 2020.
[9] Any submission of the Employer in reply is to be filed by email with the Board
with a copy to each complainant by no later than Wednesday, October 14, 2020.
[10] Upon receipt of the parties’ submissions, the Board will consider and determine
the preliminary objection raised by the Employer that the Board has no jurisdiction to
entertain these complaints.
Dated at Toronto, Ontario this 31st day of July, 2020.
“Marilyn A. Nairn”
________________________
Marilyn A. Nairn, Vice-Chair