P/0002/94

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

T. McIver

Grievor

• and -

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

Employer

BEFORE

D. Leighton M. Lynk

Panel Chairperson Panel Member

FOR THE GRIEVOR

T. McIver

FOR THE EMPLOYER

S. Shamie Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors

HEARING

August 18, 1995

The Grievor, Teri McIver, was employed in the position of Hearings and Support Services Supervisor with the Liquor License Board of Ontario from June 13, 1988, until she was notified that her employment was being terminated on November 22, 1993. The notice of termination was effective immediately and stated that Ms. McIver’s position, after reorganization, had become redundant. This termination letter also offered Grievor a “termination package’’ which was contingent upon her signing a release form which was included with the letter. As well, the letter advised that the Grievor obtain independent legal advice regarding the package and noted that the offer to her remained open until November 29, 1993. The Grievor did seek legal advice and was unable to come to an agreement as to a termination package.

On April 9, 1994, the Grievor filed an application for a hearing before the Public Service Grievance Board (the Board) alleging that her termination from employment was unjust and unethical. Counsel for the Employer notified the Board and the Grievor that he would make a preliminary objection to the Board that we did not have jurisdiction to hear this grievance on the first day of the hearing, which was scheduled for August 18, 1995.

Counsel for the Employer raised two preliminary objections to jurisdiction on August 18, 1995. Counsel argued that we did not have jurisdiction because the Grievor was hired under the Liquor License Act and, therefore, the Public Service Act, R.S.O. 1990, c.P.47, and Regulation 977 do not apply to the Grievor and we should dismiss the grievance. He argued in the alternative that the Grievor’s application for grievance was not filed within the 21-day requirement and was, therefore, not timely and should be dismissed.

Upon hearing the Employer's submissions, the Grievor asked for an adjournment in order to prepare and make submissions to the Board. It was decided at the hearing that these would be made in writing to the Board and that the Employer would have an opportunity to reply to these submissions in writing. Final submissions were received by the Board in early November, 1995.

The Employer's position on the first motion is summarized in its final submission to the Board. The Employer argued that Ontario Regulation 57/95 provides that the Liquor License Board of Ontario (L.L.B.O.) is a Schedule II employer. This regulation was filed on February 8, 1995, but pursuant to Section 2 is deemed to come into force retroactively on December 18, 1991. Thus, when Ms. Mclver's employment was terminated on November 22, 1993, the L.L.B.O. was a Schedule II employer and, hence, outside the jurisdiction of the Board. Employer's Counsel argued that in the alternative the L.L.B.O. was a Schedule I(a) atypical agency, not a Schedule I agency, and, therefore, still not subject to the Public Service Act and, consequently, outside the jurisdiction 0f the Board.

The Grievor argued that the Board does have jurisdiction to hear the matter since the L.L.B.O. is a Schedule I agency and Schedule I agencies must be appointed under the Public Service Act with all the rights and benefits accorded under that act. The Grievor further argued, quoting from the Liquor License Act, Section 2(10),

The Board may employ such persons as are considered necessary subject to the approval of Lieutenant Governor in council, establish job categories, salary ranges, and conditions of employment.

The Grievor argued that this provision in the Act meant that the L.L.B.O. does not have complete autonomy over the hiring and firing of employees. The L.L.B.O. is designated by Management Board as a Schedule I(a), atypical agency, and is subject to all administrative policies as provided in the Management Board Directives and Guidelines, except as specifically exempted in a document entitled “Memorandum of Understanding Between the Minister of Consumer and Commercial Relations and the Liquor License Board of Ontario” dated January 13, 1989. The Grievor took the position that this close regulation of hiring and firing by Management Board meant that she was, in fact, a public servant and, therefore, entitled to bring a grievance for wrongful termination to the Board.

This Board has dealt with almost the identical issue in the recent case of Wells and Larsen and the Crown in Right of Ontario (Liquor Control Board of Ontario) (P/0045/93). In Wells and Larsen the grievors argued that the Liquor Control Board of Ontario is highly regulated by the Government and, therefore, they were public servants protected under the provisions of the Public Service Act and regulations passed pursuant to the Act. However, this Board held that even close regulation by the Government does not make the Government the employer for the purposes of the Public Service Act