P/0051/93

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

A. McConnell

Grievor

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

D. Leighton

Panel Chairperson

FOR THE GRIEVOR

F. Angeletti/J. Levesque Counsel Harrison, Elwood Barristers and Solicitors

FOR THE EMPLOYER

S. Patterson Counsel Legal Services Branch Management Board Secretariat

HEARING

May 30, 1995

INTRODUCTION

The Grievor, Mr. A. McConnell, has brought a grievance to the Public Service Grievance Board (the Board) alleging that his employer, the Ministry of Transportation (the Employer) has breached certain working conditions and terms of employment contrary to the Public Service Act, R.S.O. 1990, C. P-47 (the Act) during the calendar year of 1990. The Employer has made a preliminary motion to dismiss the grievance on the grounds that the Board has no jurisdiction to hear Mr. McConnell’s grievance. Counsel for the Employer argued that when Mr. McConnell filed this grievance before this Board he was classified in the Senior Management Group which, under the regulations pursuant to the Act, and thus is not entitled to bring working condition grievances before this Board. Counsel for the employer argued further that since this group is explicitly excluded from our jurisdiction we must dismiss the grievance.

For the purposes of this motion, the parties agreed to a statement of facts in a document entitled “Cronology of Events.” The facts, as summarized from that document, are as follows.

The Grievor was employed as a professional engineer by the Employer and during the period of 1990 he was classified as a PEN 21. Engineers are specifically excluded from the application of the Crown Employees Collective Bargaining Act (CECBA) because of their professional status rather than their managerial responsibilities. Since engineers were excluded from the CECBA, it was the Employer who established the salary. In August, 1988, management board of cabinet approved collective bargaining for professional groups within the government. APEGO, the Association of Professional Engineers of the Government of Ontario, was formed in early 1989. The Union represents approximately 700 professionals, most of whom are engineers. Over the next 18 months negotiations between APEGO and the Government continued, but were not resolved until an interest arbitration was decided. Salary negotiations between the parties continued until January 1991 and when an impasse was reached, an arbitrator was appointed "under the terms of the framework agreement to determine all issues in dispute by the issuance of a binding award." Mr. Dissanayake's award was released on August 26,1991. His award resulted in substantial increases to the professional engineers within APEGO.

The award also included PEN 21s and 22s provisionally because their status within the bargaining unit was yet to be negotiated. The award provided provisionally that PEN 21s in 1990 received a 28% increase in salary: PEN 22s were to receive a 21.6% increase in salary.

The Memorandum of Understanding, signed by the parties on October 5, 1990, recorded the understanding of the parties that if PEN 21s and 22s were added to the bargaining unit any salary increase would be retroactive to January 1, 1990. This was also confirmed in a letter by Mr. Kim Devooght, Director, Human Resources, on November 7, 1990 (Tab 1 of Exhibit 1). Before the interest arbitration was released in August, 1991, the Government decided to put all individuals classified as PEN 21s and 22s within a newly created senior management group. The enabling regulation for this re-classification was filed in April, 1991, and was effective retroactively to January 1, 1991. Employees affected were not informed of the reclassification until May and June, 1991. Mr. McConnell was advised, by letter dated May 31, 1991, that he was classified as an SMG 2. At the same time, the Public Service Act regulations were amended to exclude senior management group from bringing working conditions and terms of employment grievances to the Board.

Thus it was not until after the Grievor had been promoted to the senior management group that the Dissanayake award was released and he realized that he should be entitled to the provisional increase as indicated in the award. In a letter to Mr. Richard Puccini, dated September 25, 1991, the Grievor requested a review of his 1990 and 1991 salary given the arbitrator’s award. In a letter dated October 8, 1991, Mr. Puccini responded to the Grievor stating ”Our Ministry has formally informed the Human Resources Secretariat of the situation you have raised and that our response is forthcoming.” On October 24, 1991, APEGO was informed that the Government had applied for a judicial review of the Dissanayake award. In March, 1992, Mr. Devooght advised the Grievor that no action could be taken on his request until the results of the judicial review were known.

Throughout the spring and summer of 1992, the Grievor attempted, through correspondence, to get the employer to address his grievance. Finally, on October 28, 1992, the Grievor sent a letter to Mr. Puccini stating that he wished:

... to formally register a complaint with respect to the terms of my employment and working conditions as it relates to my salary for 1990 and 1991. Alternatively, by this letter I wish the complaint that I had filed on September 25, 1991, with you to be proceeded with and formally dealt with under the provisions of the Public Service Act as a grievance.

Mr. Puccini responded in a letter dated October 28, 1992, that it was his intention to provide the Grievor with a formal response as required under the Public Service Act within the time limit specified. Then, on October 29, 1992, the Grievor informed Mr. McConnell he was accepting early retirement package effective December 31, 1992.

Because the judicial review of the Dissanayake award was still outstanding, Mr. Puccini responded to the Grievor’s formal grievance that he had no other option but to deny it. Because the judicial review was still pending, the parties agreed to hold Mr. McConnell's grievance in abeyance and in a letter dated December 14, 1992, Mr. Posen confirmed that "holding his grievance in abeyance until the final resolution of the judicial review of the APEGO arbitration award will in no way adversely impact upon his grievance from a timeliness point of view." Subsequently, Deputy Minister Posen wrote to the Grievor and stated

This matter, indeed, is both difficult and complex and I do appreciate your concern and patience and the patience that you and many of your colleagues have exhibited while we seek a fair resolution for all.

Nevertheless, I can assure you that any salary adjustments brought about by the retroactive application of the Government's directive regarding salary compression, will be applied to you. If the application of the directive would have resulted in a higher salary being paid to you as a PEN 21 in 1990, and an SMG 2 during 1991 and 1992, you will receive the benefit of the higher salary, even though you may have retired by the time the decision is made on these matters.

(Tab 20 Exhibit 1)

In June, 1993, Mr. Vervoort advised the Counsel for the Grievor that he had requested to conduct an investigation into the grievance. Through the summer several letters were sent by the Grievor's Counsel asking for the results of the investigation. On September 17,1993, counsel asked Mr. Vervoort to refer the matter to the Board. At the hearing into this matter, Counsel for the Employer confirmed that the judicial review application had been abandoned.

EMPLOYER’S POSITION

The Employer has asked this Board to dismiss this grievance on the grounds that Grievor has no right to a hearing before the Board. He argues that since the Grievor was in the senior management group when he initiated his grievance we have no jurisdiction to hear the grievance. He argued further that until the Dissanayake award was issued there was no inequity or basis for a grievance. He argued that any right to an increase in salary for the period of 1990 “crystallized” after the Grievor was in the SMG class and, therefore, he was entitled to bring a grievance to this Board.

Counsel for the Employer relied on Shapero and the Crown in Right of Ontario (Ministry of Education), which clearly establishes that the Board has no jurisdiction to hear a working conditions grievance if the grievor is grieving a condition of work while he or she was in a senior management position.

Counsel cited other cases which stand for the proposition that if the grievor cannot bring himself or herself within the provisions of the Public Service Act, then the Board has no jurisdiction to hear the matter. See Rampersad and the Crown in Right of Ontario (Workers’ Compensation Board) (P/0037/92) and Dileo and the Crown in Right of Ontario (Metropolitan Toronto Convention Centre) (P/0001/91). These cases are not helpful given the special facts of the case before me.

Grievor’s POSITION

The Grievor’s Counsel argued in response that this Board should not dismiss the grievance for lack of jurisdiction. Counsel argued that the facts in this case are unusual because of the timing. He argued that the Grievor's rights as a PEN 21 to all increase in salary were not realized, or “crystallized" until August 1991, after the Grievor had been promoted to the SMG classification. He pointed out that had the award, which gave the increase in salary retroactively, been made in December 1990 there would he no question about the Grievor's right to a hearing before this Board. Counsel argued that the Grievor was bringing a grievance to this Board for a period of time when he was a PEN 21 and was in no way attempting to grieve working conditions or terms of employment while he was a SMG. Counsel distinguished the Shapero and the Crown in Right of Ontario (Ministry of Education) case from the facts of this Board stating that Mr. Shapero was complaining about working conditions and terms of employment while he was an SMG.

DECISION

Having reviewed the documentation submitted by agreement by the parties, the argument and cases submitted by counsel, I have decided to deny the Employer's motion to dismiss the grievance for lack of jurisdiction.

The issue is whether or not a senior management group employee loses his or her right to grieve a breach of a working condition or term of employment which arose before the promotion. Stated another way, the question is "Does an employee within the senior management group lose a right to grieve an incident which may have occurred before the person was promoted to the SMG group?" Section 43(2) of Regulation 977, passed pursuant to the Public Service Act, provides that “Section 44-51 do not apply to persons in the positions or classifications set out or described in Schedule 1.” Sections 44-51 pertain to the procedure of bringing a working conditions or terms of employment grievance to the Board. Schedule 1, Part 1, of Regulation 977 lists senior management group as part of this excluded class.

A review of the provisions from Section 44 to Section 51 indicates a process where a person with a complaint may present it to his or her supervisor within 14 days of becoming aware of the complaint, A further review indicates that there are fairly strict time lines in regard to dealing with a grievance once it has been filed or brought to the attention of the supervisor. If the person complaining is not satisfied with the resolution as proposed by the supervisor the complaint moves on to a review by the Deputy Minister who must conduct an investigation into the grievance within 14 days of the date of the presentation of the grievance and make a decision within seven days of the completion of the investigation.

Without going into further detail, it is clear that the grievance must be dealt with in a speedy fashion and if it is not dealt with to the satisfaction of the Grievor then the Grievor may then pursue a hearing before a Board. A literal reading of Section 43(2) indicates that these provisions do not apply to persons in the positions or classifications set out in Schedule I or, in this case, the SMG class.

Clearly the regulations contemplated a speedy process occurring at the time that the incident which led to the grievance occurred. Because of rather special and unusual facts, this is not what occurred in the case before me. But it is clear that the Grievor is complaining about something which occurred, even if it only was realized after he was promoted, when he was in a classification, PEN 21 – in which he was entitled to bring a working conditions grievance to this Board. Counsel for the grievor made it clear that he was not grieving salary for the 1991 period, as originally stated by the Grievor to his supervisor because by 1991 he was in the SMG class.

The grievor does not lose his right to grieve in this case because he was promoted.

For the reasons noted above, I hereby deny the Employer’s motion to dismiss.

Dated at Toronto, this 1st day of February, 1996.