HomeMy WebLinkAboutP-2008-2598.Lipke.09-03-04 Decision
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P-2008-2598
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Grievor
Lipke
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services)
Employer
BEFOREKathleen G. O?Neil Vice-Chair
FOR THE Mark Drakos
COMPLAINANT
FOR THE EMPLOYER
Omar Shahab
Ministry of Government Services
Counsel
HEARING
March 3, 2009.
2
Decision
[1]This decision deals with the complaint of Mr. Paul Lipke which contests the application
of the employer?s policy entitled ?Pay for Performance Operating Procedures?, and how
his movement through the grid pursuant to that policy has been affected by his absences
due to disability. He claims that the application of the policy is discriminatory on the
basis of disability as recognized under the Ontario Human Rights Code. At the mediation
session on March 3, 2009, the parties agreed I should deal with the preliminary issue of
the jurisdiction of The Board without the need for formal submissions.
[2]Section 4 of Regulation 378/07 under the Pubic Service of Ontario Act, 2006 provides as
follows:
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,
(a) if the public servant is eligible under sections 5 and 7 to file such a
complaint;
(b) if the public servant gives notice in accordance with section 8 of his or her
proposal to file the complaint; and
(c) if the public servant complies with the filing requirements set out in
section 10.
(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]It can be seen from the fifth paragraph of section 4(2) of Regulation 378/07, set out just
above, that complaints dealing with compensation provided as a result of the evaluation
of performance, which is what pay for performance is, cannot be the subject of a
3
complaint filed with this Board. This complaint deals squarely with the Mr. Lipke?s pay
for performance. In the result, this complaint must be dismissed for want of jurisdiction.
[4]For the above reasons, this complaint is dismissed.
th
Dated at Toronto this 4 day of March 2009.
Kathleen G. O?Neil, Vice-Chair