P/0015/88

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

T.D. Frawley

Grievor

• and -

The Crown in Right of Ontario (Ministry of Community and Social Services)

Employer

BEFORE

G. Brent S. Goldberg R.P. Main

Chairperson Member Member

APPEARING FOR THE GRIEVOR

T.D. McEwan Counsel Gowling & Henderson Barristers & Solicitors

APPEARING FOR THE EMPLOYER

S. Patterson Solicitor Legal Services Branch Ministry of Community and Social Services

E. Complin Solicitor Legal Services Branch Ministry of Community and Social Services

HEARING

March 7, 1989

This decision deals only with the preliminary objections relating to jurisdiction which were raised by the Employer. For the purposes of arguing the jurisdictional issues certain facts were asserted and relied on by the parties. We will accept those facts for the purposes of setting out the background from which the grievance emerged

The grievance which is before us was first raised with the Employer on August 15, 1988. At that time Mr. Frawley, the Grievor, set out the following complaints and remedies requested:

#1 That my position is improperly classified.

#2 That I have been improperly treated by virtue of not having been appointed to my position on a permanent basis.

As remedy to the above, I request the following:

#1 Classification of my position at the AM 18 level.

#2 Appointment, on a permanent basis, to my position with a salary and benefits at a level commensurate with the duties and responsibilities of the position.

We were informed by the grievor's counsel that the claim that the position is improperly classified is currently the subject of a complaint before the Classification Rating Committee and is not being pursued before this Board. We were also told that the remedy now being sought from this board is a declaration either that the conduct of the Employer since October, 1983 amounts to an appointment or that the such conduct from December 1, 1985 amounts to an appointment. By "an appointment" counsel meant a permanent appointment rather than an acting appointment.

The Grievor has been an employee of the Employer since December, 1979. From then until October, 1983 he was classified and employed as a Psychometrist 2 (Masters), which is a position in the bargaining unit represented by the Ontario Public Service Employees' Union (OPSEU) and governed by the collective agreement between the Management Board of Cabinet and OPSEU. His last post was at the Bluewater Centre in Goderich. In the summer of 1983 the Employer informed the Grievor that his position at the Bluewater Centre was being abolished, and efforts were commenced to find the Grievor another position. On October 17, 1983 the Grievor was assigned to a position of Unit Psychometrist, a bargaining unit position. In that position he reported to the Director of Community Services in Woodstock. Without going into detail, the grievor was given the task of establishing and staffing the Community Services team in Goderich. This multi-disciplinary team was made up of from one to four members from its inception until the date of the grievance. No such team had ever existed in Goderich before.

As of December 1, 1985 the Employer appointed the Grievor to the position of Acting Team Manager in Goderich. The position description was noted as being a "new position pending reorganization". In the Employer's eyes the Grievor has held this acting appointment since December 1, 1985, and continued to hold it on the date of the grievance. The Team Manager position is one which is outside the bargaining unit. The Grievor has retained his bargaining unit classification.

In the spring of 1986 the Grievor filed a grievance under the collective agreement regarding the level of acting pay which he was to receive. That grievance was settled by the parties agreeing that the pay level should be at the AM 17 level. It is the position of the Grievor that the agreement was made relying on a misrepresentation of the Employer to the effect that the classification to be given to the job would be AM 17 and that a Team leader at the AM 18 level would be "red circled". It is the Grievor's position that those representations were not carried out and that when he learned of this he filed a new grievance under the collective agreement. That Grievance was before the Grievance Settlement Board (GSB) and was assigned GSB file number 175/88. On August 12, 1988 the GSB convened a hearing and heard only the Employer's preliminary objection relating to its jurisdiction to award pay for a position outside the bargaining unit. No award has been made yet in that case.

The Grievor, upon hearing the preliminary objection to jurisdiction for the first time, then commenced several other actions, this among them, before the various Appeal Boards. Naturally enough, he considers that he is in a "Catch 22" situation given all of the jurisdictional arguments that he has met at every stage and before every board.

The Employer has two objections to this Board's jurisdiction. Its first objection is that the Board lacks jurisdiction to grant the remedy sought; its second objection is that a bargaining unit employee does not have the right to bring a grievance before this Board. In summary, its argument relating to the first objection is that the Grievor is in essence simply saying that he has been acting in the position for so long that he should be given it on a permanent basis. Counsel referred us to s.6 and s.30 (1) (c) & (d) of the Public Service Act (the Act), s. 4(2) & (3) of the Regulations under the Act, and the decisions of the Board in Cohen (P/15/85) and Heater (P922/84) as support for the proposition that this Board lacked the jurisdiction to award what was sought. Concerning the second objection, the Board was referred to its decision in Brown (P/917/83), and it was noted that the Grievor has rights under the collective agreement regarding acting assignments.

The Grievor 's position, in summary, is that he is a "person" within the meaning of s. 49(1) of the Regulation under the Act and that he is employed in the public service within the meaning of s. 1(g) of the Act, and that therefore the grievance and complaint procedure including access to this Board applies to him. It is argued that ss. 54 & 55 of the Regulation require the Board to hold a hearing and make a decision concerning, among other things, a complaint concerning s. 50 (1) of the Regulation. Counsel for the Grievor asserted that the Board would not be making an appointment but would be scrutinizing the Employer's actions to see if an appointment had taken place. On that basis it was sought to distinguish the Cohen case (supra) because there no appointment had been made, and the Heater case (supra) because of its different fact situation. Counsel pointed to s. 4(2) of the Regulation and argued that there was no power to make an acting appointment because neither of the required preconditions for such an appointment existed, and that therefore the only conclusion that must be reached is that there was an appointment. Counsel also argued that the Brown case differs from this case on its facts, and that each of the tribunals need not have exclusive jurisdictions. He argued that s. 30 (3) of the Act depends on the finding of a conflict for its operation, and that the provision for a grievance forum in the collective agreement and one in the Regulation is not necessarily a conflict.

In reply counsel for the Employer referred us to s. 4 of the Regulation and pointed out that the Deputy Minister designates in an acting assignment while the Commission appoints to a permanent position on a probationary basis which is lifted over time. Counsel took the position that s. 4 (2) of the Regulation can include either a new or temporary position within the meaning of vacancy. He argued that there was no room in this for constructive appointments. He also said that Cohen (supra) is not distinguishable because both cases involve vacant positions which were not staffed on a permanent basis. He also said that the concept of the various boards having concurrent jurisdiction unless there was an actual conflict was a "floodgate argument".

We shall set out here the various provisions in the Act and the Regulation:

THE ACT

1. In this Act,

(g) "public servant" means a person appointed under this Act to the service of the Crown by the Lieutenant Governor in Council, by the Commission or by a minister, and "public service" has a corresponding meaning;

4. The Commission shall,

(d) assign persons to positions in the classified service and specify the salaries payable;

6. (1) When a vacancy exists in the classified service, the deputy minister of the ministry in which the vacancy exists shall nominate in writing from the list of eligibles of the Commission a person to fill the vacancy.

(2) The Commission shall appoint the person nominated under subsection (1) to a position on the probationary staff of the classified service for not more than one year at a time.

30. (1) The Commission, subject to the approval of the Lieutenant Governor in Council, may make regulations,

(c) prescribing the standards and procedures to be followed in recruitment, selection and nomination;

(d) prescribing the procedures to followed in making assignments;

(3) Any provision in a collective agreement that is in conflict with a provision of a regulation as it affects the employees of a bargaining unit covered by the collective agreement prevails over the provision of the regulation.

THE REGULATION

4 (1) Subject to subsection (2), the Commission may upon the recommendation of the deputy minister, assign a civil servant from one position in his ministry to another position in his ministry.

(2) Where the incumbent of a position is unable to act or where a position becomes vacant, the deputy sinister may designate a civil servant in the ministry to perform the full duties of the position in an acting capacity.

(3) Where the deputy minister has designated a civil servant under subsection (2) and after eight consecutive working days the incumbent is still unable to act or no permanent appointment has been made to the position, the civil servant filling the position shall be paid as if he were assigned to the position and the payment of acting pay shall be made retroactive to the first day of the acting appointment.

49 (1) Subject to subsections (2) and (3), sections 50 to 57 apply to 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.

50 (1) Any person may present a complaint in respect of working conditions or terms of employment to his supervisor within fourteen days of his becoming aware of the complaint, and the person and his supervisor shall endeavour to resolve the complaint by informal discussion.

54 Where an application is made to the Board for the hearing of a grievance, the Board shall hold a hearing within one month of the date of the application and, at least fourteen days before the hearing, shall notify the grievor, the employee representative and the deputy minister concerned of the date, time and place of hearing.

55 The decision of the Board in respect of a grievance shall be communicated in writing personally or by registered mail to the grievor, the employee representative and the minister and deputy minister concerned, and the Chairman of the Commission.

In the Cohen case (supra) there was a vacant position which existed because the incumbent had left. The position apparently was under review in that the Ministry had not yet decided what its needs would be. At pages 6 and 7 of the award the Board dealt with its jurisdiction to award the position to Dr. Cohen and determined that it lacked the jurisdiction "in the circumstances here existing". The "circumstances" were that the Ministry had made no decision about whether or how to fill the vacant position. The Heater case (supra) also dealt with remedial jurisdiction, and the Board there accepted that the Commission's exclusive authority set out in the Act at s. 30 (1) could not be challenged by the grievance. At page 6 of the award the Board agreed "that the Civil Service Commission has the sole right under the Public Service Act, Section 30(1) to decide unilaterally the compensation for non-bargaining unit employees and this Board cannot change such decision".

In this case s. 30 (1) (c) & (d) of the Act deals with appointments and assignments, and gives the Commission the right to determine these matters unilaterally. We agree that this Board lacks the jurisdiction to interfere with the exercise of that right. In this instance we are referred to the exercise of the right in s. 4 (2) & (3) of the Regulation and asked to conclude that no proper acting appointment was made and that hence a permanent appointment must have been made. We do not consider that the phrase "where a position becomes vacant" is necessarily limited to a situation where an incumbent leaves a position. A position can surely become vacant if after it is created a decision is pending concerning reorganization, as was the case here.

As counsel for the Employer pointed out, the procedure is different for permanent and acting appointments. Section 6(2) of the Act provides that the Commission appoints someone to a probationary appointment in the case of a permanent position. Section 4(1) of the Regulation also provides that permanent assignments of civil servants within a ministry are to be made by the Commission. According to s.4 (2) of the Regulation, where an acting appointment is made the Deputy Minister designates the civil servant who will take over on an acting basis. In this case it is not alleged that the Commission made a probationary appointment or a permanent appointment in the first instance. There is no provision in the Act or the Regulation by which the exclusive authority of the Commission to make permanent appointments or permanent assignments is circumscribed by the passage of time in an acting appointment, or even by the improper use of an acting appointment. We therefore conclude that we lack the jurisdiction to issue any declaration that would allow us to construe that an acting appointment made by a Deputy Minister to a civil servant either was from its inception or had become a permanent appointment.

In view of the importance which the parties have attached to this issue we will also consider the "larger" jurisdictional issue of the right of access to this Board by someone who retains a bargaining unit classification while performing a non-bargaining unit job on an acting basis. Clearly s.49 (l) of the Regulation refers to "persons who are employed in the public service under the jurisdiction of a deputy minister", and there is no doubt that such a broad definition can apply to bargaining unit people. Were there no Crown Employees Collective Bargaining Act and no collective agreement between the Union and Management Board, there would be no question about the inclusion of bargaining unit employees in the definition of persons who could grieve concerning working conditions and have their grievances heard by this Board.

Section 1(1) (f) of the Crown Employees Collective Bargaining Act defines "employee" as "a Crown employee as defined in the Public Service Act" excluding, among others, "a person employed in a managerial or confidential capacity". The collective agreement recognizes the Union as being the exclusive bargaining agent for "all public servants other than persons who are not employees within the meaning of clause f of subsection 1 of Section 1 of The Crown Employees Collective Bargaining Act". Section 30(3) of the Act provides that any conflict between the regulations and the collective agreement "as it affects the employees of a bargaining unit" must be resolved in favour of the collective agreement. The collective agreement sets out the working conditions and benefits for "employees", and so long as a person is an "employee" the collective agreement applies to determine those working conditions and benefits. The collective agreement also sets out a grievance and arbitration procedure which refers to the Grievance Settlement Board as the body to which unresolved "employee" grievances are referred, including, of course, employee grievances concerning the violation of working condition provisions in the collective agreement. There is, in our view, a conflict between the collective agreement grievance and arbitration procedure to resolve working condition complaints and that set out in s. 49(1) of the Regulation which applies to the working condition complaints of "persons who are employed in the public service" and that conflict must be resolved in favour of the collective agreement. More fundamentally, the working conditions of "employees" are governed by the collective agreement while the working conditions of those not in the bargaining unit are set unilaterally by the Commission. Accordingly, it is our view that in order to avoid that conflict "persons who are employed in the public service" must be interpreted as excluding any person who falls within the definition of "employee" in the Crown Employees Collective Bargaining Act. The Grievor was at all material times an "employee" because he retained as his permanent classification a bargaining unit classification. Although he may have been acting in a position which was outside the bargaining unit, he still retained his rights under the collective agreement as a bargaining unit employee. As a result, this Board lacks the jurisdiction to hear a complaint concerning working conditions filed under s. 50 of the Regulation because at all material times the grievor was not a person to whom that section applied.

For all of the reasons set out above, we find that we lack jurisdiction either to award the relief sought or to hear the grievance.

Dated at London, Ontario this 28 day of April, 1989.