P/0022/88

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Denise Downey

Grievor

• and -

The Crown in Right of Ontario (Ministry of Tourism and Recreation)

Employer

BEFORE

J.A. Willes F. Hoddle

Acting Chairperson

Member

FOR THE GRIEVOR

H.M. Mackenzie Counsel McLean & Kerr Barristers and Solicitors

FOR THE EMPLOYER

MM. Fleishman Counsel Crown Law Office Civil Ministry of the Attorney General

HEARING

April 14, 1989.

Decision

The grievor, Denise Downey, filed a grievance dated March 3, 1989, alleging wrongful dismissal from her position as Administration Officer in the Ministry of Tourism and Recreation, Operations Division, Sudbury Office. A hearing for the grievance was scheduled for April 14, 1989, at which time counsel for the employer raised a preliminary objection as to the jurisdiction of the Public Service Grievance Board to hear the matter.

Notice of the Intention to raise a preliminary objection to the Board's jurisdiction had been sent to the grievor by courier service on April 4, 1989. The notice reads, in part, as follows:

“Please be advised that the employer will be raising a preliminary objection before the Board on the ground that the Board lacks jurisdiction to entertain your grievance as you were released during your first year of employment.”

At the hearing, counsel for the employer submitted that the grievor was hired by the Ministry of Tourism and Recreation by a letter dated February 10, 1988, which sets out a hiring date of March 1, 1988.

The letter states:

"Dear Denise :

Re: File No. TR-1/88 - Administrative Officer

I am pleased to confirm our offer of employment to you as Administrative Officer, in the Tourism and Recreation Operations Division, Sudbury Office, commencing March 1, 1988 at an annual salary of $29,151.00 ($558.69 weekly). This position is classified in the Management Compensation Plan as an AM-14.

Your appointment to the Ontario Public Service will be to the probationary staff for a 12 month period, during which time your performance will be regularly evaluated by your supervisor. Upon satisfactory completion of this period and swearing the Oath of Allegiance, you will be appointed to regular staff.

Mrs. Ra O'Neill, will assist you to complete the required documentation during your first few days of employment.

Please note that your anniversary date has been established as March 1, 1989, and you will be eligible for a merit increase at that time.

As discussed, the Ministry will reimburse you for eligible moving expenses up to a maximum of $1,500.00 (please submit quotes from three (3) independent moving companies). Should you decide to rent a truck to move your furniture, please submit receipts.

Please confirm your acceptance of these terms, in writing, as soon as possible.

On behalf of the selection Board, I wish to extend our congratulations to you as the successful candidate and I wish you the very best in your endeavours with the Ministry.

Yours sincerely,

Anne Morga

Human Resources Officer"

On February 24, 1989, the grievor was given a letter of termination dated February 23, 1989, which reads in part:

“Ms. D. Downey,

79 Abba Street ,

Chelmsford, Ontario,

POM 1L0

Dear Ms. Downey:

Pursuant t o Section 22 (5) of the Public Service Act , you are hereby released from employment with this Ministry for failure to meet the requirements of your position.

The effective date of release is February 24, 1989.

Yours truly,

Jim Keenan

Deputy Minister.”

Section 22 of the Public Service Act referred to in the letter dated February 24, 1989 provides:

"s.22 (1) - A deputy minister may, pending an investigation, suspend from employment any public servant in his ministry for such period as the regulations prescribe, and during any such period of suspension may withhold the salary of the public servant,

s.22 (2) - A deputy minister may for cause remove from employment without salary any public servant in his ministry for a period not exceeding one month or such lesser period as the regulations prescribe.

s.22 (3) - A deputy minister may for cause dismiss from employment in accordance with the regulations any public servant in his ministry.

s.22 (4) - A deputy minister may release from employment in accordance with the regulations any public servant where he considers it necessary by reason of shortage of work or funds or the abolition of a position or other material change in organization.

s.22 (5) - A deputy minister may release from employment any public servant during the first year of his employment for failure to meet the requirements of his position, R.S.O. 1980, c.418, s.22.

Counsel for the employer submitted that the documentary evidence clearly shows that the grievor was hired as a probationary employee, and released from her employment as a result of her failure to meet the requirements of her position. Her release was pursuant to Section 22(5) of the Public Service Act. Counsel for the employer further submitted that the right to grieve a termination of employment has its foundation in the Act, but must be in accordance with the regulations applicable to the Act. Counsel argued that the right to grieve applies to s.22 (1), (2), (3), (4), but does not apply to s.22(5), as s.22(5) makes no mention of the regulations.

Counsel submitted that Regulation 881 Part V of the Revised Regulations of Ontario 1980, as amended, provides the grievance procedure and the jurisdiction of this Board to hear grievance matters. He stated that the relevant provisions of the regulation are s.36 (b) and s.42.

s. 36 (b) defines “dismiss” as follows:

"dismiss" means to dismiss a person from employment for cause under subsection 22 (3) of the Act, and "dismissal" has a corresponding meaning;

s.42 (1) sets out the eligibility of a grievor to bring a dismissal grievance before the Board as follows:

"s.42 (1) Section 43 to 48 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 twelve months.

Counsel for the employer argued that the right to grieve a dismissal before this Board arises only where the grievor has been dismissed under s.22(3) of the Act, and the jurisdiction of the Board to entertain an alleged dismissal grievance is subject to s.42(1) of the regulations which excludes persons employed for less than a twelve month period.

Counsel for the grievor conceded that the grievor had been employed for less than twelve months, and that her termination was made pursuant to s.22(5) of the Act. However, he argued that from the point of view of fairness the grievor should be entitled to a hearing. Counsel noted that as a management employee the grievor was not entitled to the grievance rights of regular non-management employees, nor was she entitled to the right to grieve available to an employee dismissed under s.22(3) of the Act. Consequently, the grievor had no place to bring her grievance. Given the circumstances, counsel for the grievor argued that the Board could assume jurisdiction based upon Re Brown and Waterloo Regional Board of Commissioners of Police et al. (1988) 1981 CanLII 1680 (ON CA), 33 O.R. (2d) 593, (1980) 1980 CanLII 1578 (ON CA), 31 O.R. (2d) 417; Nicholson v. Haldimand - Norfolk Regional Board of Commissioners of Police. 1978 CanLII 24 (SCC), [1979] 1 S.C.R. 311; and Homex Realty & Development Co. Ltd. v. Village of Wyoming. (1980) 1981 CanLII 2638 (NL CA), 118 D.L.R. (3d) 1.

A second line of argument raised by counsel for the grievor was essentially one of estoppel. Counsel argued that the issue of a Notice of Hearing to the grievor precluded the Board from denying the grievor a hearing of her grievance. He submitted that the issue of the Notice of Hearing led the grievor to believe that her grievance was one which the Board was prepared to hear, and on the strength of this representation had engaged counsel to act on her behalf. He suggested that compensation should be awarded to cover the expenses which the grievor had made in good faith believing that she would be afforded a hearing of her grievance.

This Board has carefully considered the submissions and arguments concerning the preliminary objection of counsel for the employer as to this Board’s jurisdiction. The grievor, according to the evidence, (as her counsel conceded) was employed as a probationary employee for a period of less than 12 months, and was released from her employment pursuant to s.22(5) of the Public Service Act.

The jurisdiction of this Board to deal with grievances from persons 'relieved' from their employment is for the most part limited to those who are in a position to bring themselves within s.22(3) and the definition section 36(b) of Regulation 881 as amended. These are‘ dismissal for cause' terminations rather than releases during the probationary period, and there is no suggestion that the grievor can bring herself within s.22(3) for jurisdiction purposes. The issue before us then is whether this Board has jurisdiction to hear a grievance concerning a release under s.22(5) of the Act.

The jurisdiction of the Board to deal with a termination of employment under s.22(5) has been considered in a number of cases which were brought before this Board in the past: King and Hansard Reporting Service (Office of the legislative Assembly) 901/80; Lakner and Ministry of Health 874/76; Taylor and Ministry of Attorney General 919/83; Jackson and Ministry of Health 923/84. In each of these cases the Board concluded that it lacked jurisdiction to deal with the grievance of a probationary employee released under s.22(5) of the Act. Of particular note, the Supreme Court of Ontario (Divisional Court) in an application for an Order setting aside the decision of the Public Service Grievance Board in the Jackson case, supra, dismissed the application, on the basis that the grievor was terminated before her probationary period expired, and "hence she was not entitled to proceed with a grievance before the Board." A subsequent Motion by the grievor for Leave to Appeal to the Court of Appeal (Morden, Robins, Tarnopolsky J. J. A.) was also dismissed.

Given the evidence, we can find nothing in the case before us to distinguish the grievor's position from that of the grievors who were also terminated under s.22(5) in the above-noted cases. No do we have any difficulty in reaching the conclusion that an employee released under s.22(5) would be caught by s.42(1) of Regulation 881 in the sense that such a person would not be entitled to have a grievance heard by the Board on its merits.

Counsel for the grievor submitted in his argument that the issue of a Notice of Hearing by the Board would act as an estoppel to prevent the Board from denying that it had jurisdiction to hear the grievance. This Board, however, has no evidence before it upon which to make any kind of assessment as to the nature of a grievance or the Board's jurisdiction to hear the matter until the parties come before it and present their argument.

The question of whether a grievance should be filed or presented to this Board is initially a matter for the grievor to decide. Whether the grievance is one over which the Board has jurisdiction is something which can only be determined after the grievance has been filed with the Board. Neither the Act, nor the Regulations make any provision for the 'vetting' of grievances to determine if they are matters to be properly brought before this Board for determination, nor could the Board properly do so without having evidence and counsel before it to settle the issue of jurisdiction. Consequently, in our view, the issue of a Notice of Hearing does not indicate or provide any assurance to the parties that the Board has assumed jurisdiction. The Board cannot assume jurisdiction until it is satisfied that the grievance is one which falls within its jurisdiction and that can only be determined after hearing counsel on the matter at the outset of the hearing.

Counsel for the grievor has submitted that the issue of a Notice of Hearing caused the grievor to incur legal expenses for which some compensation should be considered. This Board, however, has no control over the decisions of grievors to engage counsel, nor is this Board in a position to consider compensation where it has no jurisdiction to hear the grievance in question.

In conclusion then, for the reasons given, this Board finds that it does not have jurisdiction to hear the grievance, and the grievance is accordingly dismissed.

DATED AT TORONTO THIS 7th DAY OF JULY 1989.