P/0917/83

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Brown

Grievor

• and -

The Crown in Right of Ontario (Ministry of the Attorney General)

Employer

BEFORE

C. Gordon Simmons E.A. Black R.L. Jackson R.J.C. Pringle

Chairman Member Member Member

FOR THE GRIEVOR

M. Brown

FOR THE UNION

M. Pratt Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

M. Fleisham Counsel Ministry of the Attorney General

HEARING

April 26, 1983.

Decision

The grievor, Margaret Brown, currently classified as a Clerk 5 General, is grieving that her position is improperly classified and that she should be part of the Management Compensation Plan, specifically, AM-13. Her grievance was originally filed on April 22, 1982 (by the Ontario Public Service Employees' Union, the union of which she is a member) and a hearing was scheduled for October 22 of that year before the Grievance Settlement Board. However, it was cancelled on October 23 with the consent of the Ministry and the Ontario Public Service Employees’ Union because the Ministry had objected that the Grievance Settlement Board lacked jurisdiction to give the remedy Ms. Brown was requesting--namely, reclassification to the Management Compensation Plan. Both parties agreed at this time that Ms. Brown would be free to file an application before the Public Service Grievance Board. It should be noted, however, that the Ministry reserved the right and, in fact, indicated that it intended to object to the jurisdiction of the Public Service Grievance Board as well. There have been a number of other delays in bringing Ms. Brown's grievance before this Board, but none are material to the question, and the Ministry has already stated its intent not to object on the basis of timeliness.

Because of the objection with respect to jurisdiction, it was suggested by the Board and agreed to by the parties that the hearing would proceed, but that only argument with respect to jurisdiction, and not the merits of the case, would be heard.

The employer is arguing that the Public Service Grievance Board, in fact, does not have jurisdiction in view of the fact that Brown is, and at all material times has been, a member of the bargaining unit. They argue further that the Classification Rating Committee also does not have jurisdiction for the same reason. Their position is that this is a question of status-- that is to say, whether or not Ms. Brown performs managerial duties and, hence, whether or not she is an “employee” under I(f)(iii) of the Crown Employees Collective Bargaining Act. They argue that the proper forum for Ms. Brown is the Public Service Labour Relations Tribunal in that it has explicit authority under s. 38 of the Crown Employees Collective Bargaining Act to determine whether or not Ms. Brown is an “employee” under the Act-- that is, whether she is performing managerial duties. They noted, however, that Ms. Brown herself is not able to bring such an application to the Tribunal because it has ruled that only the union or the employer has status before it on matters of status (see re. Leutz T/18/77).

The union argues that the Public Service Grievance Board does have jurisdiction under sections 54 and 60 of Regulation 881 pursuant to the Public Service Act. It argues that there is no question of status to be resolved and that Ms. Brown's status is quite clear-- that is, she is an employee under the Crown Employees Collective Bargaining Act. Secondly, it agrees with management that one or both of the parties-- that is, the Ministry or the Ontario Public Service Union--must bring an application before the Public Service Relations Tribunal and that Ms. Brown herself cannot do so. Therefore, since the employer objected to the Grievance Settlement Board's jurisdiction and since Brown cannot by herself go before the Tribunal, if her case cannot be heard by the Public Service Grievance Board Ms. Brown has nowhere to turn and, in the words of the OPSEU representative, unless the Public Service Grievance Board has jurisdiction, her case “falls between the cracks.” He observed that such a situation is unfair to the employee, bad for the parties, and was not the intention of the legislature.

It must finally be noted that Brown herself expressed a high degree of frustration with a process which, on its face, is supposed to give her “day in court” but, because of the jurisdictional complication, has so far denied her a hearing.

It is now clear that, with the passage of the Crown Employees Collective Bargaining Act, the Public Service Grievance Board's main role is to adjudicate grievances of public servants who are excluded from the coverage of the Crown Employees Collective Bargaining Act. However, the instant case before this Board necessitates a closer examination of the jurisdictions and, specifically, an answer to the question as to whether all employees covered by the Crown Employees Collective Bargaining Act are, in every circumstance, excluded the jurisdiction of the Public Service Grievance Board. We must, therefore, look to the Public Service Act and the regulations to see what, specifically, would preclude jurisdiction in this case.

First, it is clear that, under Section 30 (3) of the Public Service Act, a collective agreement takes precedence over a regulation “as it affects the employees of a bargaining unit.” Second, the Public Service Grievance Board and its procedures are a creation of the regulations (Regulation 881). Third, since Brown is a member of a bargaining unit, it may be that the Collective Agreement between OPSEU and the employer is in conflict with the regulations and that this conflict, therefore, blocks the Public Service Grievance Board's jurisdiction in this case.

It might have been argued, in this regard (although it was not), that Article 27 of the Collective Agreement (grievance procedure) and, to a lesser extent, Article 5 (grievance of classification complaints) are in conflict with Regulation 881, in that Article 27 refers to the Grievance Settlement Board as the final appeal body in the grievance procedure and Article 5 feeds into Article 27. In other words, since the Grievance Settlement Board is explicitly mentioned, every other body, including the Public Service Grievance Board, is, by implication, excluded. This Board is satisfied that this is a reasonable interpretation and, indeed, that this argument, in the light of Section 30(3) of the Public Service Act, has up to now established the boundaries of the two jurisdictions-- that is, the Grievance Settlement Board and the Public Service Grievance Board.

In the instant case, however, the parties agreed not to proceed before the Grievance Settlement Board. In effect, then, they have agreed not to apply Articles 27 and 5 of the Collective Agreement. Given the legislative intent which is so clearly evident in both the CECBA and Regulation 881 that employees should have the right to have classification grievances resolved by binding arbitration, and having agreed that the very clause in the agreement giving employees that right should not be applied in this case, can it then be argued that that clause is in conflict with the Regulations? We think not, for the following reasons.

First, in the Board’s opinion, on one hand, by not agreeing to pursue the grievance to the Grievance Settlement Board, the parties have rendered Articles 27 and 5 (at least the parts of them dealing with arbitration) inoperative. On the other hand, it is specious to suggest that there can be a “conflict” between the Regulations and an inoperative clause. In other words, by virtue of the agreement not to apply Articles 27 and 5, those articles cannot affect Ms. Brown in this case and, thus, there can be no conflict with the Regulations in terms of their effect upon her.

Second, the entire purpose of grievance procedures is to afford an employee the possibility of redress. The parties agreed that the Grievance Settlement Board could not give appropriate redress but that the Public Service Grievance Board could do so (even though the employer argued that this body did not have jurisdiction). In point of fact, therefore, far from creating a conflict with the Collective Agreement, one could argue that the Regulations and the existence of the Public Service Grievance Board actually complement the Collective Agreement, in this particular case.

Hence, we do not feel that, in this unusual case, there is a conflict between the Collective Agreement and the Regulations or that we are prevented, by Section 30(3) of the Public Service Act, from assuming jurisdiction.

We now look to Regulation 881 to see if it contains anything preventing our jurisdiction. Sections 50 to 61 of 881 set out procedures for the grieving of working conditions and terms of employment and Section 49(1) sets out the coverage of Sections 50 to 61 (“persons who are employed in the public service under the jurisdiction of a deputy minister and who have been so employed continuously for at least the preceding six months”). The latter clause would cover Ms. Brown since she is a public servant under the jurisdiction of a Deputy Minister and been such for more than six months. Section 49(1) states: “Sections 50 to 57 do not apply to persons or classifications set out or described in Schedule I.”

Schedule I consists of two parts. Part I contains two definitions which serve to clarify the meaning of groups of positions set out in Part II. The only mention of bargaining unit employees anywhere in Schedule I is in Part I, and this is clearly part of a larger definition, that of the Management Compensation Plan. In other words, bargaining unit employees are not included in Schedule I and, therefore, are not excluded from coverage under Sections 50-61. This interpretation is strengthened by the expressio ius personae vel rei est exclusio altercies doctrine (the expressed mention of one or thing implies the exclusion of another). That is to say, had the Legislature intended to exclude bargaining unit employees from coverage under Sections 50-61, it would have included them in Part II of Schedule I.

Hence, the Board has been unable to find anything in either the Public Service Act or the Regulations which would necessarily prevent it from taking jurisdiction in this case. The question as to whether the Board should assume jurisdiction, quite apart from its legal ability to do so, should now be explored since the employer, at least, is arguing that another body (the Tribunal) should actually deal with the case.

In our view, the arguments made before this Board with respect to this grievance obscure a relatively simple but very important truth. On one hand, the Ministry argues that neither the Grievance Settlement Board nor the Public Service Grievance Board have jurisdiction; on the other hand, both parties refuse to put the question before the Public Service Labour Relations Tribunal (knowing that Ms. Brown cannot go to that body on her own). Legal niceties aside, we are thus faced with an employee who has a grievance but who, because of the actions of the two parties, is being prevented from having it heard and resolved one way or the other.

In the Board’s view, such a situation is incompatible with progressive labour relations policies and was not intended by the Legislature. It is now accepted that, in a modern and progressive system of industrial relations, an employee should have the right to have his/her grievance heard by a competent neutral body. Indeed, it is clear that the employer accepts and is committed to this notion, as evidenced by the fact that it has set an example with its own employees by providing its management personnel with a grievance and arbitration procedure which most such employees in the private sector still do not enjoy. Section18 of the Crown Employees Collective Bargaining Act and Sections 50-61 of Regulation 881also reflect this intent. The Board, therefore, works from the premise that there should be some avenue by which Ms. Brown’s grievance can be heard by some competent body.

In this light, it would be useful to briefly examine each of the three possible routes. There is, first and most obviously, referral to the Grievance Settlement Board, as a grievance with regard to classification, pursuant to Section 18 the Crown Employees Collective Bargaining Act. This route, however, was ruled out by both parties in October of 1982, on the basis that the Grievance Settlement Board lacked jurisdiction to give the remedy sought, reclassification of Ms. Brown to the Management Compensation Plan. It should be noted further that both the employer and the union continued to hold to the position at the hearing that the Grievance Settlement Board was not the appropriate route.

There is, secondly, referral to the Public Service Labour Relations Tribunal as a question of status-- that is, whether or not Brown is an “employee” within the meaning of the Crown Employees Collective Act. The Ministry argues that this is the appropriate route, or at least, the first step of the appropriate route: should the Tribunal decide that Brown is not an “employee”, then her actual classification within the Management Compensation Plan would be determined by the Commission (a decision, presumably, which would be appealable to the Classification Rating Committee). The spokesman for the Ontario Public Service Employees’ Union did not argue directly against this route but made it clear that the union had little interest in referring a status matter to the Tribunal in a case which, if successful, would result in the employee leaving the bargaining unit.

Two observations must be made by the Board in respect to this option. First, it is, indeed, an awkward and cumbersome route--with two bodies and probably two hearings-- and it is not clear that the question which is concerning Brown is properly within the province of the Tribunal. While obviously closely related, it is far from self-evident that a question of status (whether a person is managerial or not) and a grievance over classification are synonymous. This distinction becomes clearer when it is noted that the Tribunal does not deal with grievances involving classification, which this situation clearly is.

Second and most importantly, it must be observed by the Board that the positions of each of the parties prevent Brown taking this route. Management argues, on one hand, that the Tribunal is the proper body to hear this case, but on the other, refuses to take the case before the Tribunal because it disagrees with the grievor and therefore has no interest, in effect, in furthering an argument against itself. The union refuses to take the case before the Tribunal, fundamentally, for the same reason: it has no interest in losing a member. Thus, for self-serving reasons, each of the parties has blocked the Public Service Labour Relations Tribunal route for Ms. Brown.

This leaves us, hence, with the Public Service Grievance Board or the Classification Rating Committee. We have already dealt with the issue of jurisdiction and, as noted, the Board is not persuaded that it is prevented from assuming jurisdiction by any provision of either the legislation or the regulations. It might only be noted at this point that, since the Public Service Grievance Board or the Classification Rating Committee have the power to grant the remedy requested, they may be appropriate forums for Brown's grievance. Since the Ministry argued that the Grievance Settlement Board lacked jurisdiction precisely because it could not order such a remedy, it would seem to follow that the Public Service Grievance Board or the Classification Rating Committee are appropriate because they have such powers.

In summation, then, on one hand we can find no compelling arguments that the Public Service Grievance Board or the Classification Rating Committee do not have jurisdiction. On the other, given the situation facing Ms. Brown, the Public Service Grievance Board or the Classification Rating Committee not only are the most expeditious and appropriate routes left to her, they may well be the only ones. That is to say, unless the Public Service Grievance Board or the Classification Rating Committee hears this case, it will not be heard by any competent body since neither party is willing to take it before the Tribunal (and Board cannot order them to do so) and they have ruled out the Grievance Settlement Board. Such a situation, as noted above, flies in the face of the clear intent of the legislation and regulations, common sense and natural justice.

Finally, there is one more factor which complicates the issue-- the question as to whether this grievance should be heard by the Public Service Grievance Board or the Classification Rating Committee. While the functions and membership of both boards are largely similar, the method of appointing is different. However, it would appear that this grievance should come before the Classification Rating Committee since it deals with classification issues. The arguments examined throughout this award apply equally to the Classification Rating Committee and indeed, the Ministry representative, while arguing that neither body had jurisdiction, conceded at the hearing that, if the Board found in the context of this case that the Public Service Grievance Board had jurisdiction, then the Classification Rating Committee would also have jurisdiction. In other words, the only material differences between the two bodies, beyond the method of appointment, is that the Public Service Grievance Board deals with grievances with respect to dismissal and terms and conditions of employment while the Classification Rating Committee deals with classification grievances.

Accordingly, this Board finds that the Classification Rating Committee has jurisdiction and requests that the grievor make application to the Chairman of the Civil Service Commission, pursuant to Section 57 (3) of Regulation 881 for a hearing before the Committee. Upon referral by the Chairman of the Commission, pursuant to Section 57 (4), the Committee will abridge its procedures, pursuant to Section 60 and convene a hearing as soon as convenient for the parties.

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

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