P/0019/90

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

G. DeMers

Grievor

• and -

The Crown in Right of Ontario (Ministry of Consumer & Commercial Relations)

Employer

BEFORE

J. Willes S. Goldberg

Chair Member

FOR THE GRIEVOR

G. DeMers Investigations & Enforcement Branch Ministry of Consumer & Commercial Relations

FOR THE EMPLOYER

C. Riggs Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors

FOR THE THIRD PARTY

C. Wood Manager, Investigations Consumer Services Branch Ministry of Consumer & Commercial Relations

HEARING

February 11, 1991

DECISION

The grievance in this matter arose out of the posting of a notice of competition 203-89 for the vacant position of Manager-Investigation in the Business Practices Division of the Consumer Services Branch in the Ministry of Consumer and Commercial Relations. The classification of the position was General Administration, AM-20. The advertisement for the position bore a posting date of November 27, 1989, and the Competition was closed on December 8, 1989.

The grievor, Gary DeMers, was employed as an Investigator in the Investigation and Enforcement Section of the Consumer Services Branch, and formally applied for the position in accordance with the procedure, and within the specified time-frame set out in the posting for the competition. The grievor was an unsuccessful candidate, and queried why he was not selected for the position. The response did not satisfy him, and without going into the reasons given, the grievor filed a grievance which was received in due course by the Public Service Grievance Board. The grievance reads in part as follows:

“Pursuant to Section 53 of Ontario Regulation 881 pursuant to the Public Service Act I am applying for a hearing of my grievance in respect of the below mentioned situation.

The Grievance is in relation to working conditions related to the handling by the Ministry of Consumer and Commercial Relations of job competition 203-89 for the position of Manager - Investigation.

The remedy I am seeking is

1. to be declared the winner of the competition and receive the position.

or in the alternative

2. for the currently successful candidate to be disqualified from the competition and the 'winner' chosen from those remaining.

or in the alternative

3. for a new competition to be conducted utilizing proper procedures and a properly constructed impartial board.

I have included summary copies of information respecting this grievance.

Should the attached not be sufficient please contact me at 326-8625 or in the alternative at the Ministry of Consumer and Commercial Relations, 2-555 Yonge Street Toronto Ontario, M7A 2H6.”

The employer objected to the jurisdiction of the Public Service Grievance Board to deal with the merits of the grievance, and a hearing was scheduled for February 11, 1991 to hear the matter. At the hearing, the parties agreed that this panel would hear evidence and argument as it pertained to the issue of jurisdiction, and would then issue an interim award addressing the issue.

The principal issue concerns the grievor's right to submit his grievance to the Public Service Grievance Board, and the authority of the Board to deal with the grievance. The grievor is employed in a bargaining unit position, and works under a collective agreement. The collective agreement was negotiated by the grievor's bargaining agent pursuant to the Crown Employees Collective Bargaining Act R.S.O. 1980 ch.108. The position which the grievor applied for under Competition CR 203/89 (Manager-Investigation) was a position outside the bargaining unit, and consequently one to which the Crown Employees Collective Bargaining Act did not apply.

The grievor, in his argument stated that the position applied for by him is a position which falls under the jurisdiction of the Public Service Grievance Board in terms of working conditions and other matters, and the Board should accordingly have jurisdiction to deal with a grievance concerning the competition for such a position. He further submitted that as a Crown employee he met the criteria for bringing a grievance before the Board under the Public Service Act R.S.O.1980 Ch. 418 in that his bargaining unit status was not excluded under s.49(2) of Regulation 881 thereunder, and he was a "person employed in the public service” for more than 6 months, as required by s.49(1). In support of his position concerning his right to grieve to the Public Service Grievance Board he argued that his right to grieve and the jurisdiction of the Board to hear the grievance was confirmed in a number of Board decisions:

Percy and Department of Public Works Grievance 15/60 (Presgrave); Hansen and Department of Public Health 162/63 (Presgrave); Doell and Department of Lands and Forests 498/69 (Presgrave); Latimer and Department of Health 208/64 (Presgrave).

The Employer's challenge to the jurisdiction of the Board to hear the grievance was made on the basis that an employee who meets the definition of an ‘employee’ under the Crown Employees Collective Bargaining Act falls under that Act, and any grievance concerning such an employee's working conditions is a matter outside the jurisdiction of the Public Service Grievance Board. He further submitted that the jurisdiction over employees which the Public Service Grievance Board once exercised in the 1960’s changed with the passing of the Crown Employees Collective Bargaining Act in 1972, and the Grievance Settlement Board now has jurisdiction with respect to grievances of bargaining unit employees falling under the Crown Employees Collective Bargaining Act. In support of his position, counsel noted that The Public Service Grievance Board in recent years had taken the view that it lacked jurisdiction to deal with grievances of bargaining unit employees: Lansey and Ministry of Correctional Services 920/83 (Little); Frawley and the Crown (Ministry of Community and Social Services) P/0015/88(Brent).

This Board has carefully reviewed the arguments of the parties on the issue of jurisdiction of the Public Service Grievance Board to deal with the grievance before us. While the Board clearly had jurisdiction prior to the passage of the Crown Employees Collective Bargaining Act to deal with grievances lodged by employees who held positions that now fall within the bargaining unit, after 1972 and the advent of collective bargaining under that legislation, jurisdiction became divided. The Grievance Settlement Board assumed jurisdiction over disputes arising out of collective agreements, and the grievances of bargaining unit employees related thereto. The Public Service Grievance Board continued to deal with the grievances of non-bargaining unit employees except for those employees excluded under the legislation and regulations.

In both the Lansey case and the Frawley case cited by counsel for the Employer, the Board addressed the question of the jurisdiction of the Board to hear grievances by bargaining unit employees concerning non-bargaining unit job competitions. In the Lansey case the Board dismissed the grievance of a bargaining unit employee who had applied for a position outside the bargaining unit with the following words:

“In summary, we must conclude that the grievor, being a member of the bargaining unit, can only challenge a decision of management in filling a vacancy or a newly created position if it has failed to observe the provisions of Article 4 and he has been adversely affected. In such a case his only remedy is to grieve, and if necessary, to have his grievance arbitrated by the Grievance Settlement Board. The only persons who can grieve, and if necessary have a grievance arbitrated by this Board, are non-bargaining unit employees who claim a violation of the Public Service Act and/or Regulation 881. Finally, there is no provision either in The Crown Employees Collective Bargaining Act or the collective agreement executed there under or in the Public Service Act or Regulation 881 whereby a member of the bargaining unit seeking to fill a vacancy outside the bargaining unit, and who has not been selected, to grieve and have the issue arbitrated by this Board.

For all the above reasons, we find we have no jurisdiction"

Similarly, in the Frawley case, the Board was faced with a grievance from a bargaining unit employee who grieved that he should be permanently appointed to the non-bargaining unit position to which he had been temporarily assigned. In that case, the Board was again faced with the issue of jurisdiction. The Board considered the various arguments concerning its jurisdiction to hear the grievance and concluded as follows:

“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(1) 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.”

In both of the above cases, the issue before the Board concerned a bargaining unit employee who sought to bring a grievance before the Public Service Grievance Board which applied to a non-bargaining unit position. In both of these cases, the Board found that it did not have jurisdiction to deal with the grievance. In the case before us, the grievor is a bargaining unit employee who was employed at all material times under a collective agreement, and an employee subject to the Crown Employees Collective Bargaining Act. Given the evidence and argument before us, we can see no compelling reason why we should not adopt the reasoning of the Board in the Lansey or Frawley case in our dealing with the issue. This Board would accordingly conclude that the words “persons employed in the public service” in s.49(1) of Regulation 881 under the Public Service Act should be interpreted to exclude persons who fall within the definition of “employee” under the Crown Emp1oyee Collective Bargaining Act competitions in so far as s. 49 (1) would apply to grievances concerning working conditions and terms of employment.

This Board therefore finds that it does not have jurisdiction to hear the grievance placed before it, and the grievance is dismissed.

DATED AT KINGSTON THIS 9^TH DAY OF SEPTEMBER, 1991.