P/0053/95

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

I. Nathaniel

Grievor

• and -

The Crown in Right of Ontario (Ministry of the Attorney General)

Employer

BEFORE

D. Leighton

Panel Chairperson

FOR THE GRIEVOR

I. Nathaniel

FOR THE EMPLOYER

L. Marvy Counsel Legal Services Branch Management Board Secretariat

HEARING

March 1, 1996

Indi Nathaniel filed a grievance with the Public Service Grievance Board (the Board) alleging that her employment, when she was seconded to a management position, was wrongly terminated. At the outset of the hearing, Counsel for the Employer made a preliminary motion requesting that the Board dismiss this grievance for lack of jurisdiction because Ms. Nathaniel was, at all material times, a member of the Ontario Public Service Employees Union (OPSEU) and, therefore, has no grievance rights before the Board. Ms. Nathaniel opposed this motion on the grounds that OPSEU had told her the union had no jurisdiction to assist her.

The parties submitted an agreed statement of facts. Ms. Nathaniel began employment with the Ministry of the Attorney General in a bargaining unit position in March 1994. In the spring of 1995, Ms. Nathaniel won a competition for a secondment position at the Social Programs Administration at the AM-17 level. Employees at the AM-17 level are represented by the Association of Management, Administrative and Professional Crown Employees of Ontario (AMAPCEO).

Ms. Nathaniel began her employment in the secondment on May 10, 1995. She had entered into a secondment agreement with the Ministry of the Attorney General dated on May 5, 1995 which provided, amongst other things, that “this secondment agreement may be terminated by either the secondee or the Capacity Assessment Office at any time upon 30 days written notice.” Subject to early termination, the secondment agreement was to be effective for a period of 10 months up to and including March 31, 1996.

Ms. Nathaniel was notified on June 28, 1995 that her secondment employment would be terminated effective July 28, 1995 pursuant to the provision for early termination in the secondment agreement.

Ms. Nathaniel was surprised and shocked that her secondment was terminated and when she inquired into the reasons for why the termination occurred was further distressed by being told that her performance did not meet expected standards. She took various steps to seek a review of the decision, including contacting OPSEU and AMAPCEO seeking representation for a formal grievance. OPSEU told her and confirmed by letter that it was their opinion that since she had been seconded to a management position the matter was not within their jurisdiction and they could not assist her (see Appendix I). AMAPCEO also informed her that since she was not part of their union, they could not assist her. Ms. Nathaniel persisted in attempting to further her complaint. She succeeded in setting up a meeting with the Director of the Capacity

Assessment Office, the Executive Assistant for the Assistant Deputy Attorney General, and the Director of Human Resources to pursue a grievance. On December 6, 1995 she filed a grievance with the Board.

The Employer’s Counsel argued that Ms. Nathaniel is a member of OPSEU. She did not lose her membership in the union when she was seconded to the management position. Article 6 of OPSEU’s collective agreement provides at 6.5:

Where an employee is temporarily assigned to perform the duties and responsibilities of a position not covered by this Collective Agreement, he shall

retain his rights and obligations under the Collective Agreement.

Thus, Ms. Nathaniel would have all the rights and protections granted her under the collective agreement including the right to grieve to the Grievance Settlement Board which is the board that hears grievances of bargaining unit employees of OPSEU. The Crown Employees Collective Bargaining Act provides as follows:

Every collective agreement relating to Crown employees shall be deemed to provide for the final and binding settlement by arbitration by the Grievance Settlement Board ...

Counsel argued further that case law supports this interpretation. In Union Grievance (G.S.B. 1588/84) (Delisle), the Board interpreted Article 6.5 of the collective agreement to mean that a bargaining unit employee seconded to a management position retained the right to grieve to the Grievance Settlement Board even though the person was in a management position at the time of the grievance. Counsel also submitted that before going on to address a more narrow jurisdictional point in Frawley (G.S.B. 175/88) (McCoamus), the Board stated

Nonetheless, we note that we find unattractive the suggestion that an employee

who accepts a temporary assignment to a managerial position on an acting basis

loses all of the protections afforded to the employees by Section 18 of CECBA.

Certainly, such a conclusion would render temporary assignments to managerial

positions a very mixed blessing for employees. ... From a functional point of view, it makes sense that the employee should be able to continue to turn to the union for advice and support with respect to difficulties that arise with respect to matters of discipline, for example, during such assignments.

Therefore, Counsel argued that the bargaining unit employee retains her rights under the Collective Agreement to grieve and her grievance must go to the Grievance Settlement Board.

Decision

After careful consideration of the submissions of the parties, I have decided that the Employer’s argument is correct, The Public Service Grievance Board has jurisdiction to hear management employee grievances as provided for in the Public Service Act and Regulation 977. The Board has no jurisdiction to hear complaint of a bargaining unit member even though an employee is seconded to a management position. This view is supported by Section 29(3) of the Act which provides:

Any provision in a collective agreement that is in conflict with the provision of a

regulation as it affects the employees of a bargaining unit covered by the collective agreement prevails over the provision of the regulation.

Thus, Article 6.5 of the collective agreement prevails over any of the provisions for grievances in the regulation.

Ms. Nathaniel, who is a bargaining unit employee of OPSEU, retained her rights under the collective agreement even though she was in a management position. Thus, this Board has no jurisdiction to hear any grievance relating to her tenure in that management position. The grievance is, therefore, dismissed.

Dated at Toronto this 17th day of April 1996.