P/0008/88

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Shilman

Grievor

• and -

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

Employer

BEFORE

Gail Brent, Chair Frank Hoddle, Member

FOR THE GRIEVOR

J P. Wearing Counsel Shibley, Righton & McCutcheon Barristers and Solicitors

FOR THE EMPLOYER

D. Costen Counsel Legal Services Branch Ministry of Community & Social Services

HEARING

January 10, 1989 January 17, 1989

Before dealing with the grievance, we should note that counsel for the Ontario Public Service Employees' Union (hereinafter referred to as the Union) attended at the hearings and informed us that, while the status of the Union to appear before this Board and to make representations on matters which could affect the interest of the Union had not been determined, the Union might come forward and ask to have status in the event that remedies were requested which could affect the interest of the Union.

In 1987 the Ministry of Community and Social Services was preparing for the changes which would flow from the proclamation of the Adoption Disclosure Statute Law Amendment Act, 1987, and insofar as it is relevant to this grievance, was creating new positions within the Adoption Disclosure Unit in order to deal with matters relating to adoptee/birth parent reunions. According to the Employer's evidence, the need to have staff in place for the July, 1987 proclamation was felt to be important and urgent, and this need was expressed by everyone from the Minister down. For our purposes we will focus on one position which was created for the new unit: that of Adoption Disclosure Counsellor (Ex. 4). The position description for the job was prepared in early June, 1987, and the position was classified by the Employer as being within the Management Compensation Plan at the AM 18 level; that is to say, it was considered to be a management job outside the bargaining unit. The evidence before us is that the decision to classify as a management job was made because of the confidential nature of the work

On June 19, 1987 the Union filed a grievance [Ex. 6] claiming that the job was improperly classified and should be in the bargaining unit. That grievance was received by the Employer on June 26, 1987. On August 19, 1987 the Union and the Employer met to discuss the grievance, and for the first time the Employer began to suspect that it had made an error in classifying the job. In September, 1987 the Union filed a complaint before the Ontario Public Service Labour Relations Tribunal (hereinafter referred to as the Tribunal) asking for the inclusion of the position in the bargaining unit. On or about November 13, 1987 the Employer agreed with the Union's contention that the job had been improperly classified and improperly excluded from the bargaining unit; however, there remained and still remains an unsettled issue regarding the effective date of that inclusion. The outcome of that dispute could affect the grievor.

The grievor received a letter dated March 21, 1988 (Exs. 8) informing her that effective April 1, 1988 her job would be assigned a bargaining unit classification. She filed a grievance with the Employer before April 1, 1988, and the Employer has stated that it is acknowledging that this Board has jurisdiction because the grievor was a management employee at the time that she grieved.

Ms. Shilman, the grievor, has been employed in the Ontario Public Service since October, 1971. She held a position in the bargaining unit from 1971 to 1972 and has held management positions since then. She is a professional social worker with B. A. and M.S.W. degrees. Her most recent job before this was as Case Management Supervisor at Surrey Place Centre. That job was classified at the PM 16 level.' Surrey Place Centre was being divested, and in April, 1987 she received notice [Ex, 1] which gave her the option of working for the privately run enterprise or exercising her surplus rights. That letter was signed by the Deputy Minister and the portion dealing with her surplus rights is set out below:

...I also wish to assure you that your surplus rights as a civil servant will be protected. To that end, and in accordance with Section 19 of the Regulations under the Public Service Act, I am providing you with six months' notice effective May 1, 1987. Your job security and that of your management colleagues is a matter of primary concern to your Director, Regional Director and also the whole Ministry Management Team. All avenues for suitable alternative employment in the Public Service will be explored and individual discussions will be initiated to assist you in this process. If no suitable job assignment has occurred for you by October 31, 1987, you will be released on that date.

Ms. Shilman decided to stay with the government and to exercise her surplus rights. An employee from the Ministry's Human Resources branch was seconded to Surrey Place to assist employees who were exercising their option to remain with the government. This employee, Ms. Manski, was consulted by Ms. Shilman and was provided with a resume by her. They also discussed Ms. Shilman's interests; during their discussion Ms. Shilman made it clear that she was only interested in management positions. Ms. Manski received notice of all open positions and forwarded those which she thought would interest Ms. Shilman. One of those forwarded was for the Adoption Disclosure Counsellor (Ex. 3).

Ms. Shilman said that she was interested in the job because she had already had some experience in the adoption area from her previous employment with the Children's Aid Society and because she believed that the job would enable her to use her management and consultation skills. At that time she was also looking at two other job openings: Supervisor in Vocational and Rehabilitation Program (AM 17) and Policy Analyst (AM 19). On June 15, 1987 she was interviewed for the Adoption Counsellor job, and on June 18, 1987 she was offered the job by telephone and accepted. At that time she stopped looking at other job possibilities.

On July 10, 1987 she was sent the following formal job offer (Ex. 5):

On the basis of your recent interview for the position of Disclosure Counsellor in the Children's Services Branch, I am pleased to assign you to that position in accordance with Section 19(3) Regulation 881 under the Public Service Act.

The position is currently classified at the Social Programs Administration AH-18 level. Under the salary protection provisions of Section 19 (3), Regulation 881 of the Public Service Act you are entitled to any revisions applicable to the salary range of the Nursing PM -16 classification during the present salary cycle.

If you accept this assignment, please sign below and return a copy to Ann Manski, Divestment Co-ordinator, at Surrey Place Centre by July 14, 1987.

This assignment does not preclude you from applying to any advertised competition, for which you feel qualified.

Your starting date has been established as July 20, 1987, and I would ask you to contact Pat O'Brien, at 963-0709 to obtain information concerning the arrangements for your first day of work.

On behalf of the management of Surrey Place Centre, I would like to thank you for your service to date and wish you every success in your new job.

Ms. Shilman signed the letter as directed thereby accepting the assignment.

Ms. Shilman was not told anything about the fact that the Union was contesting the exclusion of the job from the bargaining unit or that there was a chance that the job could be placed in the bargaining unit as a result of this dispute. She commenced her new job in July and was first told of the Union’s claim and the possible reclassification in November, 1987. On December 1, 1987 she wrote a memorandum (Ex. 7) to the Registrar of Adoption Information requesting information about the Union grievance, about the negotiations being conducted with the Union concerning the grievance, about who was protecting her rights, and about whether her rights were being protected at all. She also informed the Employer that she might have to seek her own counsel to protect her interests in this matter and requested a copy of the grievance.

Ms. Shilman received no written reply to her memorandum. She did not a receive a copy of the Union grievance because the Employer took the position that she was not a part of it and could not get a copy. Her request to have an input into the negotiations was rejected. She received no other information from the Employer until March 2, 1988 when she was told that the position would be reclassified and placed in the bargaining unit. On March 21,1988 she received the following letter (Ex. 8) from Ms. O'Brien, the Assistant Registrar Adoption Information:

As a result of a Tribunal complaint submitted by OPSEU, the position of Adoption Disclosure Counsellor has been included in the bargaining unit effective November 13, 1987. Accordingly, the classification has also changed.

Effective April 1, 1988 you will be assigned to the classification of Executive Officer 2, bargaining unit which carries a current salary range of $706.70 to $851.39 per week ($36,875 to $44,424 per annum). As this position level has a lower salary maximum than your current protected rate, you will be red-circled at your present salary of $47,581 per annum until such time as the salary maximum for the Executive Officer 2 level exceeds your protected rate whereupon your salary will be administered in the range for this position level.

You are now covered by the Collective Agreement with respect to Working Conditions and Employee Benefits and represented by the Ontario Public Service Employee's Union. Your local steward is Helen MacNeil, Accounts Branch 5th Floor, Hepburn Block.

Specific changes resulting from this action include:

1. Union dues deduction: This deduction will be 1.125% of your salary to a maximum of $19.00 to be deducted from your bi-weekly pay,

2. Benefit Coverage: Your current benefits will remain in effect however, your insurance carrier changes from Great West Life to the Confederation Life Insurance Company. Would you please complete the attached form so that this change can be implemented.

3. Management Compensation Option: This option is not available for positions classified in the bargaining unit. M.C.O. credits earned from January 1, 1988 to March 31,1988 will be paid out to you.

In the meantime, on March 15, 1988 Ms. Shilman had filed her grievance (Ex. 9) with the employer. That grievance is set out below:

By this letter I wish to formally file a grievance pursuant to the regulations under the Public Service Act of Ontario.

This grievance seeks redress for unilateral alteration of my terms of employment and displacement of the surplus rights guaranteed with the divestment of Surrey Place Centre by the Government of Ontario, September 30, 1987.

I commenced employment as Adoption Disclosure Counsellor on July 20, 1987. My understanding at that time was that my position in the management module and the benefits attached thereto would not be altered in any way.

On March 2, 1988 you advised me officially that my position would be reclassified and as a result would be part of the bargaining unit represented by the Ontario Public Service Employees Union. The result of this reclassification is that I lose all benefits enjoyed by persons in the management module and my salary remains red circled for an additional period of time as the rates within the existing collective agreement reach my level.

As a result, I have acted to my detriment in accepting the position of Adoption Disclosure Counsellor, and would not have done so had been advised the position would be placed in the bargaining unit.

I would appreciate your reviewing this matter.

The grievance was denied, and Ms. Shilman was told that the position was properly in the bargaining unit and she should seek representation from the Union. Ms. Shilman testified that she filed the grievance because she considered that her surplus rights which guaranteed her an opportunity to get another management job were being interfered with in that she was assigned the job after the Union had grieved its exclusion from the bargaining unit; because the reclassification of the job to a bargaining unit classification with a lower salary further prolonged the period during which her salary would-be red circled and adversely affected her pension contributions; because she lost five days of Management Compensation Option; because she lost the opportunity to apply for lateral transfer to other management positions or to any positions requiring applicants from a management position; because she lost the opportunity for secondments at the management level which provide opportunities for good career moves and for experience in other areas; because she lost her opportunity to take courses which are limited to management participants; and because, professionally speaking, it does not "sit well" to have been in management for so long and then to have been placed in the bargaining unit. In relation to the latter point, she said that even though the move was not a reflection of her work it still felt like that and she considers that it has hurt her career by limiting her opportunity to move on professionally because it is damaging to show a move from management to line staff.

The evidence before us also indicated that there is a difference between the way bargaining unit and non-bargaining unit employees are treated in respect to their surplus rights. In particular, we were told that when a bargaining unit person is in a position which has been declared surplus and when that person is deemed to be qualified for another job, the bargaining unit employee must accept that other job. If a management employee is in a position which has been declared surplus and has been offered another job as a result of an interview, then that employee can refuse the offer. The Board was also informed that pension contributions are based on a percentage of salary and employees who earn greater salaries will naturally be able to make greater contributions which are matched by the Employer.

Argument

On behalf of the grievor it was argued that the Employer has admitted that it made a mistake in classifying the position as being in the Management Compensation Plan and that this mistake has had a detrimental impact on the grievor. It was said that Ms. Shilman, having had a sixteen year career in management positions and having been given the choice of going with a new agency or staying with the government chose the latter. It was pointed out that in the Employer's letter of April 27, 1987 (Ex. 1) the following promise was made to her:

...your surplus rights as a civil servant will be protected. To that end, and in accordance with Section 19 of the Regulations under the Public Service Act, I am providing you with six months' notice effective May I, 1987. Your job security and that of your management colleagues is a matter of primary concern to your Director, Regional Director and also the whole Ministry Management Team. All avenues for suitable alternative employment in the Public Service will be explored and individual discussions will be initiated to assist you in this process.

Counsel argued that this was a message to a management employee that it was the intention of everyone to protect her in her job security and the maintenance of a management-position. It was also pointed out that everything which occurred after that was consistent with this stated goal and that Ms. Shilman only considered jobs which were classified as management jobs.

Counsel pointed out to the Board that Ms. Shilman chose not to pursue other job opportunities once she was advised that she was being offered this job. He also indicated that she commenced the job on July 20, 1987 and continued to work without having been informed of any classification dispute or problem until sometime in November, despite the facts that there had been a grievance filed before the job was offered to her and by mid-August the Employer was doubting the correctness of its classification decision.

Counsel pointed out that the version of the facts related by the grievor was never challenged, and that the Employer did not challenge Ms. Shilman's impression of the impact which the events would have on her career.

Counsel argued that the case is an instance of demotion without just cause, and that the actions of the Employer and the results of the reclassification of the position amounts to constructive dismissal. It was said that the grievor has had to pay Union dues and is out of pocket that money, that she has lost MCO credits, and that her career has been sent into reverse. It was also submitted that she has acted to her detriment by taking the job which was held out to her as management, and that there has been an impact other future income and pension contributions. Counsel submitted that by way of remedy the Board should order that the grievor be re-assigned on a priority basis to a job for which she is qualified and in which she has an interest, that interest should be ordered on the compensation she has lost, and that she should be awarded costs. On this latter point it was said that costs are appropriate here because of the unique nature of the case in that the Employer has admitted that it made a mistake which put the grievor to the expense of retaining counsel.

Counsel for the grievor referred us to the following cases: Hill v. Peter Gorman Ltd. (1957) 1957 CanLII 393 (ON CA), 9 D.L.R. (2d) 124 (0.C.A.); Malone v. The Queen in Right of Ontario (1983), 45. O. R. (2d) 206 (H.C.); Taylor v. Canadian Broadcasting Corp. (1984), 31 A.C.W.S. (2d) 352 (O.H.C.); and Dibkin v. Canada Trust 1988 CanLII 9524 (NS SC), 18 C.C.E.L. 113 (N.S.S.C.).

The Employer argued that the letter sent to Ms, Shilman on April 27, 1987 (Ex.1) does not guarantee her protection in the management module. Its primary arguments were that the Board has no authority to deal with constructive dismissal given sections 4 (a) and 4 (d) of the Public Service Act together with the Employer's obligations under the Crown Employees Collective Bargaining Act and the collective agreement to ensure that the positions described in the bargaining unit are covered by the collective agreement, and that no real loss has been suffered by inclusion into the bargaining unit.

Counsel for the Employer stated that the grievor views the change in her working conditions which flowed from the reclassification of her position as forming the basis of the complaint. He argued that there is no remedy for constructive dismissal or no violation of working conditions which could lead to a remedy. He also submitted that neither the courts, the Grievance Settlement Board, nor this Board has ever recognized that there can be constructive dismissal in the civil service. Counsel said that the Employer here simply exercised its exclusive rights under sections 4(a) and 4 (d) of the Public Service Act to assign and to exclude positions from or include them into the bargaining unit. He also said that the more tangible losses can be linked to the reclassification rather than to inclusion into the bargaining unit.

Counsel submitted that there will always be situations where management holds out something to be the case and then things will change so that what was held out to be the case turns out not to be so. He said that terms of employment may change in order to comply with legislation, and that this is an implicit term of any contract of employment. He argued that there was no jurisprudence to the effect that inclusion in the bargaining unit gives an employee a right to a remedy in a working conditions grievance and referred us to s. 30 (3) of the regulations to the Public Service Act. He said to the extent that the regulations to the Public Service Act may give redress to someone who is placed in the bargaining unit there would be a conflict between that and the collective agreement which should be resolved in favour of the wording of the collective agreement.

Counsel submitted that all that happened here was that the Employer made a mistake which it corrected in order to live up to its obligations under the law and the collective agreement. He said that all that has been lost are certain benefits linked to the reclassification. He also submitted that even though certain tangible benefits may have been lost certain intangible benefits may also have been gained through membership in the bargaining unit. Counsel also argued that there has been no evidence presented to show that bargaining unit membership inhibits an employee's ability to move ahead.

Counsel also argued that costs should not be awarded. He further argued that if the mistake which the Employer made was in not informing the grievor that there was a dispute concerning the classifications of the job for which she was applying, then the only choice is to return the grievor to the situation she was in at the time.

Counsel for the Employer referred us to the following: Re Cominco Ltd. and United Steelworkers, Local 651 (1987), 1987 CanLII 8846 (BC LA), 30 L.A.C. (3d) 386 (Chertkow, B.C.); Malone v. The Queen in right of Ontario (1983), 1983 CanLII 1939 (ON HCJ), 45 O. R. (2d) 206 (H.C.); Johnson v. Board of School Trustees of School District No. 1 (Fernie) (1984), 1984 CanLII 495 (BC SC), 6 C.C.E.L. 94 (B.C.S.C.): Kanga and the Ministry of Health (1986), Board File P/0003/85 (P.S.G.B.); Crown Employees Collective Bargaining Act, R.S.0, 1980, Chap. 108 as amended; Ross (1978). Board File 82/77 (G.S.B.): Re Ontario Public Service Employees Union and Ontario Public Service Staff Union (1984), 1984 CanLII 5127 (ON LA), 16 L.A.C. (3d) 278 (Swan); and Public Service Act, R.S.O. 1980, Chap 418 as amended and the regulations under that Act.

In reply counsel for the grievor argued that s. 4 of the Public Service Act is directory and there is no privative clause. He said that the ability of employees to challenge classifications suggests the opposite to that which was suggested by counsel for the Employer regarding the sanctity of the s. 4 powers. He submitted that this is clearly a case of working conditions and terms of employment as contemplated by s. 36(d) of the regulation, and that just because one cannot get damages from the Crown regarding constructive dismissal does not mean that one cannot allege constructive dismissal and that is consistent with the cases cited.

Decision

Before dealing with either the specific situations or the authorities which have been placed before us, there are some general statements which we would like to make. In very broad terms we can say that under the Crown Employees Collective Bargaining Act the Employer cannot include in a bargaining unit any person who is "employed in a managerial or confidential capacity" (s.1 (1) (f) (iii)). Given the statutory framework of the Public Service Act and the Crown Employees Collective Bargaining Act the Employer has the obligation of classifying positions in the Public Service. If the position is not properly classified the incumbent can complain and have that complaint adjudicated by an independent tribunal. The management employee has recourse to the Classification Rating Committee and the bargaining unit employee to the Grievance Settlement Board. The Employer also has the initial responsibility for determining whether or not a particular position is one which is in or out of the bargaining unit, that is, status. The Employer's judgement of the relevant factors that determine status can be challenged before the Tribunal. Obviously, questions of status and classification are, while not identical, related to the extent that the classification system and classification decision will reflect the status as bargaining unit or non-bargaining unit.

Neither the Public Service Act nor the Crown Employees Collective Bargaining Act assumes that the Employer is infallible or that its decisions about status or classification are immune from corrective action. Through a combination of actions before the various bodies mentioned above, Employer decisions can be reviewed in order to ensure that both status and classification decisions are correct. In other words, it can be said that while the Employer may be fallible the decisions regarding status and classification, when all is said and done and all procedures completed, must be correct. Because the Employer is fallible, situations may arise when its decision regarding the status of a particular position is wrong and must be corrected. This case is but one example of the Employer having made a mistake in determining that a job met the criteria for exclusion from the bargaining unit and then having made its classification decision on the basis of that mistake. The question before us, put in its simplest terms, is whether, given the circumstances, the Employer is under any obligation to take any action concerning the grievor who was directly affected by its action.

Let us deal first with the constructive dismissal issue. We have been asked to conclude that the grievor was constructively dismissed when her position was reclassified following the Employer’s acknowledgement that it had been in error regarding status.

There is no doubt that whatever happened to the grievor in this case was totally unrelated to her performance or to the Employer's perception of her performance. It is neither asserted nor is there any reason to conclude that the Employer had any cause for dissatisfaction with the way in which therefore was performing her job. Therefore, if we conclude that there was a constructive dismissal or disciplinary action of any sort, then it would follow that such was without cause.

Hill v. Peter Gorman Ltd. (supra) was cited to us as support for the proposition that a person could refuse an employer's unilateral attempt to vary the contract of employment and continue to work under the original terms of the contract of employment. With respect, we do not consider that the case can be read as a clear statement to that effect by the Ontario Court of Appeal. Three judges heard the case and only one of them, Mackay J. A., articulated that principle. Laidlaw J. A. in dismissing the appeal dealt only with the question of whether the trial judge's finding of fact should be reversed and Gibson J.A. dissented, specifically disagreeing with Mr. Justice MacKay’s view of the ability of the employee to reject the variation and continue working under the terms of the original contract. There is no disagreement that a unilateral variation of the contract of employment can be constructive dismissal. Although no other cases on this point were cited to us, there are cases in which the Ontario courts have taken issue with Mr. Justice Mackay's view of the employee's ability to reject the variation and continue employment under the original contract of employment. There is no doubt, however, that an employee can reject the unilateral variation, leave his employment, and consider himself to have been constructively dismissed.

The Malone case (supra) is in many respects similar to the situation before us. Mr. Malone, a member of the Ontario Public Service, accepted a transfer to what he believed to be and what was held out to be a management position comparable to his previous job. It was a newly created unclassified job, and it turned out that the job, when properly classified, was classified as a bargaining unit position. The court had no difficulty in concluding that had Mr. Malone been employed by a private employer he could have considered himself to have been constructively dismissed. The court went on to make the following statements at pages 210 and 211 of the decision:

Clarke v. A.G. Ont, supra, holds that the power of the Crown to discharge at pleasure remains... I am unable to find that Clarke v. A.G. Ont. has been overruled...

I accept, therefore, that the Government of Ontario has power to discharge at pleasure. Since it has power to discharge at pleasure, I am unable to understand how it could in law be liable for damages for constructive dismissal.

There is a statutory requirement imposed by the Public Service Act, that each position in the service be classified. I do not intend to review the statutory provisions, but it is clear that the person who made the classification in this case, had that duty and responsibility lawfully delegated to her. The position held by Mr. Malone when he took it, was a new one and it had not yet been classified at that time. Apparently it takes some time before classification of positions is done in the service. When the classification was made it had the effect of affecting Mr. Malone detrimentally.... In light of the Crown's right to dismiss a pleasure, I cannot see that the legitimate performance by an authorized public servant of a statutory duty, can render the Crown liable to damages for constructive dismissal.

If the government could dismiss at pleasure, I do not find that the bona fide exercise of a statutory power by a person required by the statute to exercise that duty, can constitute constructive dismissal. Regrettable as the consequences of the classification were for Mr. Malone, I am unable to find any cause of action against the Crown.

The decision states that no action before the court can lie for constructive dismissal because of the Crown's power to dismiss at pleasure. The legitimate exercise of its statutory powers of classification is held not to constitute constructive dismissal at law in view of the Crown's right to dismiss at pleasure. The Johnson case (supra) found that where a person employed subject to the School Act of British Columbia was transferred according to the powers given to school boards under that Act to a lower position with the school board no case for wrongful dismissal could be brought. Although we do not have the terms of the School Act before us, the case can be taken as reinforcing the ideas expressed in Malone and taking them beyond the context of a situation where an employer has the power to dismiss at pleasure.

Regardless of the state of the law regarding the Crown's right to dismiss at pleasure, Regulation 881 of the Public Service Act does give certain persons employed in the public service the right to grieve to this Board that they have bean unjustly dismissed (see ss. 36 (b), 42, 43 and 44). A finding in favour of such a grievor could result in his/her reinstatement. Also, the same regulation provides an avenue for having complaints about "working conditions or terms of employment" adjudicated by this Board (see ss. 36 (b), 49, 50, 51, 52, 53) and this Board has the power to make a binding determination in the dispute. The provisions of the regulation provide a grievance and arbitration procedure for public servants which is analogous to that found in collective agreements. The Cominco case (supra) considered the applicability of the concept of constructive dismissal to collective agreement situations in the following manner at pages 406 and 407 of the decision:

I digress at this point to consider the doctrine of ''constructive dismissal" in the context of arbitration disputes under collective agreements. In a paper delivered by Professor Innis Christie to a symposium held by the Industrial Relations Centre, Queen's University, October 3 and 4, 1981, on the subject of “Termination of Employment”, the proceedings of which were published in 1983 by that institution, he noted at p. 6:

I am not aware of a doctrine of constructive dismissal as such in the arbitration-collective agreement jurisprudence. I suppose an employee under a collective agreement could always grieve about the kind of thing that an employee at common law could not sue for because of the unavailability of specific performance of the contract of employment.

I have canvassed the leading authorities on collective agreement arbitration in Canada and the reported cases and I too can find no decisions where the doctrine of constructive dismissal is recognized in arbitral jurisprudence involving collective agreements between a union and an employer…

We consider that the reason constructive dismissal is a foreign concept in collective agreement situations is that the grievance and arbitration procedures render the concept unnecessary. At common law when employees have been treated in a manner so inconsistent with their contracts of employment as to constitute constructive dismissal their only real choice may be between accepting the variation while continuing to work under the modified contract of employment and bringing an action for damages for constructive dismissal after leaving. If the latter path is chosen, the only remedy which the court can grant is damages. Where there is a grievance and arbitration procedure in a collective agreement the aggrieved employee can enforce the collective agreement. That is, if the employer tries to unilaterally vary the contract of employment the employee does not have to choose between accepting the variation or quitting and suing for damages; the employee can grieve and force the employer to comply with the terms of employment contained in the collective agreement. There is no need to quit. If an employee quits, the usual question which arises is whether the act was voluntary and if it was not the employee is entitled to be reinstated because s/he has been dismissed without just cause. Therefore, in the collective agreement situation the question is not whether there has been constructive dismissal but whether the employer has violated the collective agreement, and if it has the terms of the collective agreement can be enforced.

Regulation 881 to the Public Service Act also sets out a grievance and arbitration procedure. There is no collective agreement setting out the terms and conditions of employment because the employees to whom the procedure applies are employees who are excluded from the bargaining unit by reason of the positions which they hold. There are, however, provisions in the regulation which do set out some terms of employment, and this Board has always interpreted the phrase "working conditions or terms of employment" broadly (see for example Kanga (supra)). As a consequence, the situation under the regulation may properly be considered to be analogous to a collective agreement regime in the sense that the employee has the ability to force the Employer to abide by terms of employment and to rectify working conditions. As a consequence, the question for this Board to consider is not whether there has been constructive dismissal, but rather whether there is a valid grievance regarding "working conditions or terms of employment”. Similarly, if an employee leaves the employ of the government in circumstances where it is alleged that he was forced to do so, the question which is likely to be put before this Board is whether in fact there was a voluntary resignation or a dismissal without cause. In other words, the concept of constructive dismissal may be just as foreign in the grievance and hearing procedure established by Regulation 881 as it is in the collective agreement grievance and arbitration procedure for the very reasons which render the concept unnecessary there.

We therefore conclude that the concept of constructive dismissal is one which is not applicable to proceedings before this board because of the existence of the grievance and hearing procedures which enable employees to deal with grievances concerning "working conditions or terms of employment” and "dismissal". We consider that the appropriate question in each case is whether there has been either a change in "working conditions or terms of employment" or a "dismissal" such as to justify our granting a remedy.

As we have already noted, in the MaIone case (supra) the court considered a situation where the employee had accepted a transfer to a job which everyone considered to be a management job. The job had not yet been classified, and when it was it was determined to be a bargaining unit position. For the purpose of this case, we do not take issue with the general proposition put to us, and supported by that case, that no actionable wrong has been committed when all that has happened is that the Employer has carried out its statutory and collective agreement obligations. Where this case differs from the Malone situation is that the job here was classified at the time that the grievor applied for it and the Employer knew that the Union was grieving its exclusion from the bargaining unit at the time that the grievor was formally offered the job. Moreover, the Employer was aware that Ms. Shilman was a surplus employee only interested in management positions and that the positions which were being placed before her for consideration were only management positions. Knowing this the Employer did not inform the grievor of the existence of the grievance when it offered her the job or about a month later when it concluded that the Union's position had merit. As a consequence Ms. Shilman accepted the job offered to her and stopped considering the other jobs which she might have exercised her surplus rights to obtain. Had something been done to inform the grievor of the situation either in July before she accepted the job or in August once the Employer had re-assessed its position then the grievor could have accepted the risks involved or decided to resume her search. By doing nothing for so long the Employer simply allowed the situation to get worse and made it impossible for the grievor to return to her previous situation with all of the prospects for other jobs which were available to her before she accepted the offer for this job.

In determining whether this gives the grievor cause to complain concerning her "working conditions or terms of employment" we are aware of the jurisprudence of this Board, as exemplified in the Kanga case (supra) which has interpreted that phrase broadly. We intend to continue to so interpret the phrase. In the Kanga case (supra) at pages 13 and 14 the Board said:

In viewing the term "working conditions or terms of employment” liberally, we are of the opinion that we possess the requisite jurisdiction to enquire into a complaint that the employer has failed to perform its stated obligations set out in the Ontario Manual of Administration. We note that the Manual contains a number of statements which reveal the intentions of the employer when applying the Manual. Examples of such statements are as follows:

These policies and procedures will guide managers at all levels in the Ontario Public Service in the fair and equitable treatment of their personnel (Exhibit 8, page 4-2-1) (our underlining)

The purpose of the personnel function is to make as strong a contribution as possible towards ensuring equality in the treatment of people across the Ontario Government Service. (Ibid. p. 4-5-1) (our underlining)

These guidelines are provided to assist managers to administer in an equitable manner. (Ibid. p. 9A-4-1) (our underlining)

The purpose in setting forth the foregoing quotes is to demonstrate that the employer has embarked upon a program which directs its managers to conduct its employer/employee relations in a fair and equitable manner. This interpretation has also been adopted by the Divisional Court in Re The Queen in right of Ontario and Ontario Public Service Employees' Union et al (1984), 1984 CanLII 2148 (ON HCJ), 45 O.R. (2d) 361. It appears to members of this Board that a complaint by an employee that s/he has not been treated fairly and equitably in his/her relations with the employer ought to be able to bring such a complaint to the Board for a determination as to whether such a complaint is justified.

We adopt this reasoning. By so directing its managers the Employer has established a working condition whereby all employees have the right to expect that their relations with the Employer will be conducted in a "fair and equitable manner". In the case of the grievor, the facts of which we have set out fully above, we cannot conclude that she has been treated fairly and equitably. We draw this conclusion on the basis of the facts which we have set out in making the comparisons between this case and the Malone situation above. The Employer made a decision to withhold information from the grievor about the status of the job which it was offering to her, thereby causing her to act to her detriment in accepting it. The Employer further aggravated the situation by withholding information from the grievor for months after it had determined that the Union's position had merit.

The detriment suffered by the grievor is obvious. We do not consider that inclusion in the bargaining unit is either a benefit or a detriment; it is a neutral factor. Ms. Shilman lost opportunities to exercise her surplus rights to go into a job at the level which she wanted. Her career has taken a downward shift, and even though the Employer's mistake should not reflect negatively on her career, we accept her evidence that her credentials will be under a cloud of suspicion following the reclassification of the job. She has had the effects of red circling prolonged, and the future effect on her pension is real.

Unlike the Ross case (supra) to which we were referred, there was detrimental reliance on the part of the grievor in accepting the Employer’s offer for a job at the AM-18 level which was made at a time when the Employer knew that the Union had filed a grievance alleging that the job was a bargaining unit job. She also relied to her detriment on the Employer's silence about the dispute concerning her job which continued for months after the August meeting where the Employer began to have real concerns that the Union was right. The grievor should have her situation remedied.

In considering what remedies to order we have looked at the question of costs. We agree with the reasoning in Ontario Public Service Employees Union case (supra) and no costs will be ordered.

Had the Employer acted reasonably and informed the grievor about the situation even as late as August, then it might have been possible to return her to the situation she was in before she accepted the position. By failing to inform her and by letting several months pass before taking any action to let her know what was happening the Employer has made it impossible to return the grievor to her original position. For example, Ms. Shilman's surplus rights have expired. Moreover, if the Union is successful in its dispute with the Employer concerning the effective date of the reclassification and inclusion of the job in the bargaining unit, then the Employer will be forced to do something to protect the interests of the grievor. We therefore consider that the appropriate remedy in these cases is to order that the Employer place the grievor in a job at the AM-18 level to which she is suited and in which she is interested. We also order the Employer to reimburse the grievor for any amounts which she may have lost as a result of the Employer’s action, including the amounts which she had to pay by way of Union dues. We will remain seized of the matter for the purpose of dealing with any problems which may arise concerning the implementation of the award.

Dated at London, Ontario this 28th Day of April 1989.