HomeMy WebLinkAboutP-2010-1538.MacLennan.11-04-11 Decision
Public Service Commission des
Grievance Board griefs de la fonction
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P-2010-1538
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Complainant
Mikenan MacLen
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services)
Employer
BEFOREDeborah J.D. Leighton Vice-Chair
FOR THE COMPLAINANT Mike MacLennan
FOR THE EMPLOYERCarol Ann Witt
Ministry of Government Services
Labour Practice Group
Counsel
HEARING
February 25, 2011.
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Decision
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of his performance for 2009-2010 and consequently the award for pay for performance
in that year, which relied upon a letter of reprimand meted out in 2010, was too harsh.
At the outset of the hearing on February 25, 2011 the employer brought a motion to
dismiss the complaint on the ground that the Board lacks jurisdiction to hear such a
grievance, given Subsection 4(2) of Regulation 378/07, passed pursuant to the Public
Service ofOntario Act, 2006.
[2] Counsel for the employer argued in her submission that this Board has no jurisdiction to
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prohibits review of performance appraisals and pay for performance. The pertinent part
of Subsection 4(2) for the purpose of this decision provides:
The following matters cannot be the subject of a complaint about
working conditions or about a term of employment.
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the method of evaluating his or her performance.
5. The compensation provided or denied to a public
servant as a result of his or her performance.
Counsel noted that the applicant did not grieve the letter of reprimand. He is only
grieving his performance evaluation and pay for performance assessment. The
HPSOR\HUVXEPLWWHGWKDWWKHDSSOLFDQW¶VSHUformance appraisal was done in accord with
the principles of the Management Compensation Plan which is intended to reward
excellence. Further, there was no evidence of bad faith, nor was it ever claimed by the
applicant.
[3] Counsel argued further that the only way the Board could take jurisdiction, would be to
find that the assessment of the performance appraisal amounted to a second discipline
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discipline in assessing merit pay, there is case law which supports the principle that it
does not constitute a second discipline for the same offense. Moreover, the decision on
merit pay is an administrative decision, not in the nature of discipline and therefore
cannot be characterized as a second penalty. Counsel relied on the following cases in
support of the submission: OPSEU v. The Liquor Control Board of Ontario, [2008] 175
th)
97 (Harris); Manitoba Government v. General Employees Union and the
L.A.C. (4
Province of Manitoba, [2009] 98 C.L.A.S. 238 (Peltz); Amalgamated Transit Union, Local
th
1374 v. Brewster Transport Company Ltd. [1992] 26 L.A.C. (4) 240 (Tettensor); Hillis v.
th
Treasury Board [2004] 134 L.A.C. (4) 258 (Canada Public Service Staff Relations
Board).
[4] The complainant argued essentially that he had always received good performance
appraisals in the past twenty years in the Ministry. He has many letters of
commendation on his file. And although he admitted his misconduct and did not grieve
it, he thought denying him pay for performance was much too harsh.
Decision
[5] Subsection 4(2) of Regulation 378/07 clearly prohibits the Board from entertaining
grievances that complain about an employHH¶VSHUIRUPDQFHDSSUDLVDORUSD\LQFUHDVHV
based on those assessments. Thus on the face of the grievance this Board simply has
no jurisdiction to hear such a complaint.
[6] As counsel for the employer argued the only way that the Board could take jurisdiction
would be to find that the performance appraisal and pay for performance evaluation
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complaint as an alleged discipline without just cause. So the issue is whether the
employer punished the complainant a second time for the same offense, when it relied
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for performance. While there is no case law from the Public Service Grievance Board
that has addressed this issue, there is arbitral jurisprudence which is helpful. In
ManitobaGovernment,supra, three employees were disciplined for serious misconduct.
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DVVHVVLQJWKHXQLRQ¶VDUJXPHQWWKDWWKHGHQLDORIDPHULWLQFUHDVHZDVOLNHDVHFRQG
suspension, the Board held that the decision to deny the merit increase did not
constitute a punishment. The Board concluded:
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penalty or double jeopardy in the circumstances of the present case. An
employee who has been disciplined may become ineligible for other
benefits as a result of the conduct which lead to discipline, but this is
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InBrewster, supra, the arbitrator struck the discipline because of procedural flaws but
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general principle, an employer may not impose more than one penalty for the same
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misconduct, when her status was subsequently reviewed she lost her reliability rating.
Having lost this status which was essential to the position, her employment was
terminated. The grievor argued in this case that she was subject to 'double jeopardy' as
a result of both the ten day suspension and the loss of reliability status. The Board held
as follows:
... it is generally accepted that the employer cannot impose more than
one penalty for the same offence. That is to say no more than one
disciplinary penalty for the same offence. The revocation of a reliability
status and the subsequent termination come under the employers
discretionary powers in paragraph 11 (2g) of the Financial
Administration Act and is not of a disciplinary nature, but rather of an
administrative one. The basis of this action and the analysis it requires
are different. By nature, the one necessarily looks to the employees
past actions and seeks to improve the behavior; the other evaluates, or
in this case reevaluates, the future relationship between the employer
and the employee in terms of confidence, trust and reliability and the
character of the employee. The result of the security investigation is the
removal of the reliability status, not the discharge, which is instead the
inevitable consequence of the removal of the status. (at para. 143)
Applying the reasoning in Hillis to the case before me the discipline was for misconduct,
which the grievor admitted and did not grieve. The performance appraisal and the
decision on pay for performance were administrative. Therefore the performance
appraisal and the result of the pay for performance cannot be considered to be a second
discipline.
[8] Finally, there is no evidence or reasonable basis for finding that the performance
appraisal was made in bad faith, nor was any evidence provided to me to support such a
finding. Although I am sympathetic to the complainant's feeling that he has been
disciplined twice, his performance appraisal and the consequent decision on merit pay
was not a punishment. As such the Board has no jurisdiction to hear the complainant's
case on the merits because it falls squarely under subsection 4(2) of Regulation 378/07
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of the Public Service of Ontario Act, 2006, which prohibits the Board from reviewing such
cases on the merits. Thus, having carefully considered the matter before me I have
decided that the employer's motion to dismiss is granted and that the grievance must be
dismissed.
Dated at Toronto this 12th day of April 2011.
~~-
I~~ .
D.J.D. Leighton, Vice Chair