P/0045/93

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

G. Wells/B. Larsen

Grievor

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

D. Leighton N. Agarwal

Panel Chair Panel Member

FOR THE GRIEVOR

G. Wells B. Larsen

FOR THE EMPLOYER

D. Mombourquette Counsel Liquor Control Board of Ontario

HEARING

August 25, 1994 January 24, 1995

The Grievors, Gail Wells and Benita Larsen, were employed in the Information Technology Office of the Liquor Control Board of Ontario (L.C.B.O.) until they both received a notice of termination dated September 2, 1993. On September 22, 1993, the Grievors filed an application for a hearing before the Public Service Grievance Board (the Board) alleging that they had both been wrongfully dismissed. On August 26, 1994, Counsel for the employer raised a preliminary objection that the Board did not have jurisdiction to hear the grievances. Counsel for the employer had put both the Board and the Grievors on notice that this preliminary objection would be made on August 26, 1994. Submissions on the motion to dismiss the grievances for lack of jurisdiction were heard on August 26, 1994 and January 24, 1995.

Counsel for the employer argued that the O.L.R.B. is a Schedule II Crown Agency and that the Grievors were employed pursuant to the Liquor Control Act R.S.O. 1990, c.L.18, and not under the Public Service Act, R.S.O. 1990, c.P.47, which therefore did not apply to the Grievors. Since this Board's jurisdiction flows from the Public Service Act Counsel argued that we had no jurisdiction to hear the grievances. Section 4 of the Liquor Control Act, gives the O.L.R.B. the authority to hire employees;

Section 4(3) The Board may appoint such officers, inspectors and employees and retain such assistance as is considered necessary and may, subject to the approval of the Lieutenant Governor and Council, establish job categories, salary ranges and conditions of employment.

Counsel for the employer further submitted that the Grievors had been crown employees and not public servants and that the provisions of the Public Service Act made it clear that crown employees were not entitled to a grievance in front of the Board. He cited Section 1 of the Public Service Act to us in part:

"civil servant” means a person appointed to the service of the Crown by the Lieutenant Governor in council on the certificate of the Commission or the Commission, and "civil service" has a corresponding meaning;

"Commission" means the Civil Service Commission;

"Crown employee" means a person employed in the service of the Crown or any agency of the Crown, but does not include an employee of Ontario Hydro or the Ontario Northland Transportation Commission;

"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.

Counsel also cited from Regulation 977 passed pursuant to the Public Service Act.

Section 13 Where a Deputy Minister dismisses a public servant from employment for cause, the Deputy Minister shall,

(a) deliver to the public servant a notice of the dismissal setting forth the reasons therefore and advising him or her of his or her right to a hearing by the Public Service Grievance Board; and

(b) send a notice of dismissal to the Commission and Provincial Auditor.

Section 30 "Dismiss" means to dismiss a person from employment for cause under subsection 22(3) of the Act and "dismissal" has a corresponding meaning.

"Grievance" means a complaint made in writing setting forth the reasons for the complaint in respect of dismissal, working conditions, or terms of employment (emphasis added).

Counsel argued that Regulations 977 specifies that it is a "public servant" and not a "crown employee" that is entitled to a grievance before the Board. He also cited Rampersad and the Crown in Right on Ontario (Workers' Compensation Board), October 8, 1993, P/0037/9, decisions of the Board that held that only public servants, employed under the authority of a Deputy Minister may bring a grievance to the Board

The Grievors argued that as employees of the L.C.B.O. they were public servants and, therefore, governed by the Public Service Act. They based their argument on the fact that when they first joined the L.C.B.O. they were both required to take an oath of allegiance pursuant to Section 10(2) of the Public Service Act. They point out that there is no oath required under the Liquor Control Act. They argued further that Ontario Government policies, for example on public service religious holidays were followed by the L.C.B.O. They provided, by way of evidence, a Management Board Secretariat memorandum which was circulated within the L.C.B.O. A policy statement on freedom of information, released by Management Board of Cabinet, was also circulated within the L.C.B.O. The Grievors also argued that L.C.B.O. employees contribute to the Ontario Public Service Pension Plan.

Further, since the L.C.B.O. is under the jurisdiction of the Ministry of Consumer and Commercial Relations (M.C.C.R.) they are public servants and, therefore, under the Public Service Act. The Grievors cited instances of M.C.C.R. regulation. For example, approval from the Ministry was necessary for a 1991/1992 IMAGE Program. The Grievors cite the L.C.B.O. Administration Manual as being amended pursuant to an October 30, 1992 memo from M.C.C.R. to the L.C.B.O. regarding changes to employee expenses, human rights and workplace harassment, petty cash, OHIP, and maternity leave. The L.C.B.O. Administration Manual also provides that management employees with a complaint may ask the M.C.C.R. to appoint a mediator to assist in resolving the complaint. Finally, another provision in the manual, dated March 26, 1987, states that "A management or excluded employee adversely affected by position, reclassification/abolition, is entitled to appointment to the first vacant position ..." The Grievors argue that a similar provision exists in the Public Service Act, Regulation 977, Section 14(2). Other documents submitted to the Board by the Grievor's included proof that the L.C.B.O. had received permission from the Provincial Government to participate in the O.P.S. Factor 80 voluntary retirement program, and a document regarding the placing of a senior program analyst position in O.P.S.E.U.

In response to Counsel for the Employer's argument, the Grievors argued that the Rampersad case did not apply as the Workers' Compensation Board, which was the employer in that case, was a Schedule III employer, and the L.C.B.O. is a Schedule II employer.

Having carefully reviewed the submissions of the parties we conclude that the jurisdiction of the Board, determined by the Public Service Act and Regulation 977 , does not permit us to hear a grievance by crown employees such as the Grievors. Section 37 of Regulation 977 provides that a person may grieve his or her dismissal if he or she falls within Section 36(1) of the Regulation which establishes our jurisdiction. According to Section 36(1) of the Regulation "persons who are employed in the public service under the jurisdiction of a Deputy Minister" may bring a grievance to this Board. It is clear that the Grievors are not employed under the jurisdiction of a Deputy Minister and that, in fact, they were hired under the authority of the Liquor Control Act. The L.C.B.O. does not appoint under the Public Service Act. We agree with the decision and reasons in the Rampersad case.

It is clear from the very able arguments of the Grievors that the L. C. B. O. is highly regulated by the government. However, regulation of this nature does not make the government the employer for the purposes of the Public Service Act. Further, that the employees of the L.C.B.O. at one time were asked to take an oath does not transform them into public servants, entitled to a grievance hearing before this Board.

We do not have jurisdiction to hear the Grievors' request for a hearing and we, therefore, dismiss the grievances, for the reasons noted above.

Dated at Toronto this 30th day of May, 1995.