P/916/83

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Veronica Golianu

Grievor

• and -

The Crown in Right of Ontario (Ministry of Municipal Affairs and Housing)

Employer

BEFORE

C. G. Simmons

E. A. Black

R. L. Jackson

Chairman

Member

Member

FOR THE GRIEVOR

Veronica Golianu

FOR THE EMPLOYER

A. Tarasuk, Counsel

Legal Services Branch

Management Board Secretariat

FOR THE THIRD PARTY

Ontario Public Service Employees Union

HEARING

January 17, 1983 and April 22, 1983

On February 8, 1983, this Board issued an interim decision in this matter stating, inter alia, that the issue was sufficiently important that other interested parties should be invited to attend and make submissions should they wish to do so. Consequently, Mr. Pratt from the Ontario Public Service Employees Union (OPSEU) appeared at the subsequent hearing and made a number of submissions.

Briefly, the issue that had been placed before the Board was a claim by the grievor that she had been “improperly demoted” by her employer. The net effect of this demotion was to remove her from a position in the Management Compensation Plan (MCP) and place her into a position within the bargaining unit. The employer has maintained because the grievor is now within the bargaining unit she must pursue her grievance before the Grievance Settlement Board and not before the Public Service Grievance Board. Indeed, the employer's position has been that the latter Board lacks jurisdiction to entertain this grievance. Actually, for reasons that will be given later, the employer submits that the proper tribunal to hear this matter is the Ontario Public Service Labour Relations Tribunal instead of either boards just mentioned.

Normally, the employer would be correct in stating that a person having a grievance who is employed in a position within the bargaining unit appeals the grievance to the Grievance Settlement Board or to the Ontario Public Service Labour Relations Tribunal and not to the Public Service Grievance Board. There can be no doubt that The Crown Employees Collective Bargaining Act has had an impact on the role played by the Public Service Grievance Board. It is now conceded that the Public Service Grievance Board's main role is to adjudicate grievances of public servants who are excluded from the purview of The Crown Employees Collective Bargaining Act.

The employer submits that this Board lacks jurisdiction because the grievor no longer has any status to appear before it. That is to say, the grievor's status changed when she was removed from the Management Compensation Plan. As she is no longer an employee within the Management Compensation Plan she therefore loses her status to appeal to this Board. It follows therefore, having lost her status she loses her right to appear before this Board.

Further, because the issue involves status and even though she is employed within a unit of employees established for collective bargaining she still does not have any right to take her grievance regarding employee status before the Grievance Settlement Board. Instead, she must take such a grievance before the Ontario Public Service Labour Relations Tribunal which was also a creation of The Crown Employees Collective Bargaining Act. The employer submitted that it is the Tribunal that has sole jurisdiction over the issue of determining employee status under that Act.

It is perhaps convenient at this stage to address a few comments concerning the Ontario Public Service Labour Relations Tribunal to explain its role in the scheme of things. Initially, appropriate bargaining units and bargaining agents were established by Regulation, O. Reg. 577/72, made pursuant to The Crown Employees Collective Bargaining Act. This method of establishing units and agents was appropriate because the various agencies had existed prior to the passage of the legislation and therefore the Legislature merely sanctioned the practice that had previously existed. However, it was recognized that government services do not remain static. New services are created from time to time and some are discontinued. For example, when the Ontario Housing Corporation came into existence in 1973, one year after The Crown Employees Collective Bargaining Act was passed, it was necessary to have some tribunal or board determine the appropriate bargaining unit as well as determine what agency should be granted exclusive bargaining rights to represent its employees. It was the Tribunal that made this determination (see Ontario Housing Employees Union (applicant) and The Crown in Right of Ontario - Ontario Housing Corporation (respondent) and C.U.P.E. (intervenor) (1973) OPSLRT).

Returning to the issue of status, the Employer argued that the Tribunal is the only body who can determine the issue in the instant case for reasons that have been advanced above. Consequently, the Employer argued that this Board is without jurisdiction to entertain the grievance.

Mr. Pratt, on behalf of OPSEU (and essentially on behalf of the grievor), argued that status is not in issue. He submitted that both parties are aware of the grievor's status. There is no disagreement between them that she was previously employed within the Management Compensation Plan and is now employed within the bargaining unit. It was his position that no-one has to seek any ruling from the Tribunal to determine that issue and therefore there is nothing to take before the Tribunal. Instead, he argued that this Board is the proper body to hear this grievance. He based his argument on three grounds. The first argument has just been stated, that is, there is no issue of status to be decided. Two, even if one assumes that the issue is one of status, the grievor is precluded from taking the issue before the Tribunal. He relied on an earlier decision of the Tribunal In Re Leutz T/18/77 which held that only the employer and union, and not individuals, have standing before the Tribunal on issues involving status. It was Mr. Pratt's view that the Employer had no reason to take the issue to the Tribunal. The Employer had decided to remove the Grievor from her position and would hardly be expected to take it to the Tribunal to see if the decision was correct. Conversely, Mr. Pratt was very candid when he admitted that the Union would have no reason to take the matter before the Tribunal. Moreover, the Grievor could not take her grievance before the Grievance Settlement Board without the Union's assistance or agreement. The Union was not anxious to pursue the matter. Ultimately, if the Union was successful in arguing the same arguments before the Tribunal or before the Grievance Settlement Board as it argued in the instant case then, in effect, it would be arguing in favour of losing members. This it was not prepared to do.

Mr. Pratt's third argument was really based on two grounds. The first was that this Board was the most appropriate body to adjudicate the issue because it is this Board which can formulate the only effective remedy. His reasoning goes somewhat as follows. The grievor was in the Management Compensation Plan. Suddenly the employer removes her from the Plan and places her in a position within the bargaining unit. The grievor claims the move to be a demotion and alleges that it was improper. She seeks reinstatement to her former position. Mr. Pratt submits that no other body can grant effective redress if it is eventually determined that the demotion was improper. Certainly the Tribunal cannot grant the relief. The Tribunal's jurisdiction is based on The Crown Employees Collective Bargaining Act and is confined to determining issues that arise within the contemplation of that Act. Similarly, the Grievance Settlement Board cannot grant the redress sought. Should the Grievance Settlement Board hear the grievance and decide the employer had “improperly demoted” the grievor, it would lack jurisdiction to order her reinstatement into her former position which is outside of the bargaining unit and into management. This is beyond the jurisdiction of such Board.

The second aspect of these grounds for the Union's argument is more closely associated with status but with different emphasis than had been advanced by the employer. Mr. Pratt argued that this Board must assume jurisdiction since the event that gave rise to the grievance occurred while she was an employee within the Management Compensation Plan. His argument continued along the line of a hypothetical situation. Suppose the employer informed the Grievor today that she was to begin work tomorrow in another position which would place her in the bargaining unit. Then, if she grieved the proposed change this afternoon while still in the Management Compensation Plan this Board would have jurisdiction. But, if she waited until tomorrow to grieve, then this Board would not have jurisdiction because she no longer was employed within the Management Compensation Plan. It was his position therefore that this Board is the proper party to hear such a grievance and not any other body.

For all of the foregoing reasons, we have decided that either this Board or a Classification Rating Committee has jurisdiction to hear this grievance. The question that naturally follows is should we hear this grievance? The answer must be affirmative. We are persuaded by the submissions of all parties that the Grievor will neither be permitted to pursue her grievance before the Grievance Settlement Board nor the Ontario Public Service Labour Relations Tribunal. The Public Service Grievance Board on the other hand is willing to hear the matter and appears to be the appropriate tribunal to hear the case because of the redress that is being sought. Furthermore, we see no impediment to the Board assuming jurisdiction for reasons that have been expressed throughout this decision.

Notwithstanding all that has been stated in the immediate preceding paragraph there is one caveat that must be mentioned.

The matter would be relatively simple if the Public Service Grievance Board were the only body empowered to resolve grievances under Regulation 881. Alas, such is not the case. As has been stated earlier, the Regulations to the Public Service Act also provide for certain matters to be taken before a Classification Rating Committee. A Committee is established whenever an employee, believing that he or she has for various reasons been wrongly classified, presents his or her grievance to the Chairman of the Civil Service Commission.

While most of those appointed to a Classification Rating Committee are also members of the Public Service Grievance Board, the method of appointment to each body is different. In the case of appointments to the Committee, the Chairman of the Civil Service Commission is obliged to make appointments whenever a classification grievance is received by the Commission. Section 57(4) of the Regulations states:

The Chairman of the Commission shall refer the grievance to a Classification Rating Committee consisting of not fewer than three persons designated by the Chairman of the Commission to hear the grievance. (emphasis added) R.R.O. 1980, Reg. 881, s 57 (4)(part)

This method of appointment is to be contrasted with the appointment of members to the Public Service Grievance Board who are appointed by Order-in-Council.

The practical consequence of the presence of both the Board and Committee can be as follows. The grievor may be convinced that what has happened has been an improper alteration to working conditions or to his or her terms of employment. Accordingly, the proper body to adjudicate such a grievance involving those issues would be the Public Service Grievance Board. Actually, grievors frequently file their grievances with the Public Service Grievance Board and refuse to alter their positions once filed. However, the employer responds to the issue by stating that the issue is one of classification and insists that the matter proceed before the Classification Rating Committee. By the time the employer has made its objection to the method of adjudication, the grievance will already have been filed by the grievor with the Public Service Grievance Board. The Public Service Grievance Board subsequently convenes a hearing only to discover that the matter should, have proceeded to the Classification Rating Committee and informs the parties that it lacks jurisdiction to resolve the matter.

This dichotomy between the Board and Committee may be apropos to the instant situation. The grievor alleged that she had been “improperly demoted”. The employer disagreed and stated that what transpired was a reorganization of the workplace. The employer therefore argued that if any body possesses jurisdiction to resolve the grievance, it is not the Public Service Grievance Board but rather it is a Classification Rating Committee. One need only review our first decision in this matter to see the dilemma the Board finds itself in. We recognize the force of the employer's argument but note that the grievor continues to complain that she has been “improperly demoted”. The Board was unable to determine which was the appropriate body to hear the matter based upon such scant information. That is, we were unable to elicit from the grievor precisely what she meant by the term “improper demotion”. Accordingly, the Board decided that it should hear submissions on the issue of jurisdiction generally and then proceed, if necessary, to determine which body is the proper forum to resolve the grievance on its merits. However, one fact remains. The grievor filed her grievance with the Public Service Grievance Board and therefore we must proceed to the next stage. We have not heard any evidence or arguments relating to the merits of the case. We have decided that jurisdiction to hear the merits rests with some adjudicative body that has jurisdiction to resolve grievances filed by employees who are not employed in the bargaining unit. That is, either by the Public Service Grievance Board or a Classification Rating Committee. In our view, it is appropriate therefore, given the nature of events thus far, to proceed to hear the merits. However, we caution the parties that it may be necessary to rule at some stage in the proceedings to follow that the Public Service Grievance Board lacks jurisdiction to resolve the issue and that it will be necessary to bring an application before a Classification Rating Committee for final determination.

One final word ought to be stated before leaving this matter. At a very early stage in these proceedings, it was suggested that, since Classification Rating Committee appointments and Public Service Grievance Board members are synonymous, for the most part, it would be convenient to have the appointments made to both bodies in instances where the issue of jurisdiction may be in doubt. In that way the members could wear whichever hats were appropriate under given circumstances. While such action was not taken on this occasion, it deserves consideration for future cases. In this way, the duplication of costs and times would be greatly reduced.

The Board Secretary will be instructed to establish a mutually acceptable date when further hearings into this matter may be established.

Dated at Kingston, Ontario this 19th day of July, 1983.