P/0012/96

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Michael Kilpatrick

Grievor

• and -

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

Employer

BEFORE

John A. Willes, Q.C.

Panel Chair

FOR THE GRIEVOR

Michael Kilpatrick

FOR THE EMPLOYER

D. Brian Loewan, Counsel Legal Services Branch Management Board Secretariat

HEARING

April 24, 1997

Decision

The grievance in this matter arose out of a dispute between the Grievor, Mr. Michael Kilpatrick, an employee of the Ministry of the Attorney General, and the Employer, concerning the Grievor’s position in the Ministry.

On May 16, 1996, the Grievor filed a grievance with the Public Service Grievance Board which sets out the Grievor’s complaint as follows:

Dear Ms. Goodwin:

I wish to file the following grievance with the Board.

My complaints are:

(a) that I have been transferred out of Policy Division, Ministry of the Attorney General without my consent, without reasons given (at the time), and contrary to the terms of the agreement between Doug Ewart, Director of Policy Division, and the Court Reform Steering Committee at the dissolution of the Court Reform Task Force in April 1992.

At that time, representations were made to me by Doug Ewart that I was to be placed (and was placed for three years) in a permanent fully-funded Senior Policy Analyst (AM-20) position within the Policy Division (Tab 8). I was not in a “provisional” assignment as stated in Doug Ewart’s memorandum of February 3, 1995 (Tab 7), nor was it ever stated to me during my three years in the Division that my assignment was provisional, acting or on secondment. On the contrary, I have attached memoranda from Doug Ewart and Craig Perkins (Tab 8b) indicating that the transfer into Policy Division was permanent. As such, the Director can not effect the transfer to an AM-19 position within Finance and Administration Branch.

The transfer lowers my classification from an AM-20 Senior Policy Analyst position to an AM- 19 Program Analyst position effective February 24, 1995.

(b) and any other conditions or terms of employment which have been breached and upon

which I may rely.

I attempted to resolve this issue at an informal level by discussing it with Sandra Wain on three occasions since she first informed me of my transfer to Finance and Administration Branch on January 16, 1995. In addition, I asked Doug Ewart for clarification of my position’s status on January 26, 1995 (resulting in Tab 7 letter), and requested an informal meeting with Doug Ewart on February 2nd via e-mail and again in person on February 7, 1995. Since I did not receive any response from Doug about my inquiries, I started formal grievance procedures within the Ministry. A letter was sent to my immediate supervisor, Sarah Kraicer, on February 17, 1995 requesting a meeting. She relayed my letter to Doug Ewart.

On February 24, 1995, Doug Ewart and Craig Perkins met with me. Doug reiterated his view that I had been placed in the Division for the past three years on a “provisional basis”, and that there were never any representations made to me that my assignment was permanent. There was no substantive discussion about my treatment by Ms. Sandra Wain. I was not satisfied with the Director’s response, nor did I agree to transfer.

On March 3, 1995, I filed a grievance (Tab 5) under s. 45 of Reg 977, PSA, for review by the Deputy Minister’s designee. On April 13, 1995, the Deputy Minister’s designee, Mr. Joe Mideo, convened a meeting with Sandra Wain and myself to review my case. I expressed concern that Ms. Wain’s letter (Tab 9a) was misleading and factually incorrect (libelous), as it stated that management terminated my “acting appointment” with the Policy Development Branch and returned me to my home position in accordance with standard practice .

After discussions with legal counsel and AMAPCEO, I filed a grievance with the Deputy Attorney General, on October 1, 1995 (Tab 3). The Director of Human Resources, Ms. Di Emanuele, and HR staff discussed with me how the grievance would proceed and arranged for a person to investigate the complaint and report to the Deputy Attorney General. I confirmed one of my conversations with Ms. Di Emanuele in writing on October 20, 1995 (Tab 2). After an initial series of telephone conversations with HR staff during October and November, I have heard nothing since then. On February 16, 1996, I sent a letter to the Deputy Attorney General (Tab 1) asking about the status and outcome of their investigation. I have not had a response to my letter. Consequently, I would like to have this dealt with formally through the Public Service Grievance Settlement Board.

Currently, I am on secondment to Management Board Secretariat in an AM-20 position, but at an AM- 19 pay level.

The redress that I seek includes:

(a) reinstatement into a fully-funded, permanent AM-20 position;

(b) complete reimbursement for lost salary incurred as a result of being placed in an AM-19 position;

(c) all correspondence and letters pertaining to the issues raised in this grievance, including the grievance, cleared from my personnel records (branch and corporate);

and

(d) any other redress, monetary or otherwise, that might be necessary to make me whole.

I would appreciate hearing from you in the near future about how to proceed with this grievance.

Sincerely,

“Michael Kilpatrick”

A hearing was held on April 24, 1997, at which time Counsel for the Employer raised a preliminary objection concerning the jurisdiction of the Public Service Grievance Board to hear the grievance. At the hearing the parties also asserted certain facts pertaining to employment of the Grievor, and for the purpose of addressing the jurisdictional issues, this Board accepts the facts as presented to establish a basic background of the work setting which gave rise to the grievance.

According to the facts of the case (which the parties indicated would in some instances be subject to dispute if the case was to proceed on its merits) the Grievor held a position in the Finance Branch of the Ministry as an AM-19, and was seconded to a Court Reform Task Force at the AM-20 level, where he was employed until April of 1992. Thereafter, the Grievor was employed as a Senior Policy Analyst (AM-20) in the Policy Division of the Ministry. The Grievor maintains that this employment as a Senior Policy Analyst was a permanent placement and not provisional, acting, or a secondment, and requests (among other relief) that this Board place him in a fully funded permanent AM-20 position in the Ministry.

Counsel for the Employer stated that the Grievor was never placed in an AM-20 position on a permanent basis, but continued to work in an acting capacity after the position was established. Counsel argued that at no time did the Civil Service Commission assign the Grievor to the AM-20 position in question, but rather, the Grievor was designated to perform the duties of the position in an acting capacity by the Deputy Minister under S. 4(2) of Regulation 977.

The Grievor denied that his appointment to the AM-20 position was in an acting capacity, and while he does not seek to be returned to the particular position, he does seek to be appointed to another AM-20 position by way of his grievance.

Counsel for the Employer’s objection is related to this request of the Grievor, and he submits that the Public Service Grievance Board does not have the jurisdiction to award the relief sought by the Grievor. His position is that the Public Service Act, R.S.O. 1990 c.P-47 s.4(d) gives the Civil Service Commission the exclusive authority to assign persons to positions. Counsel also stated that for new appointments, Regulation 977 under the Public Service Act provides in s.4( 1) that the Commission may assign a civil servant from one position to another position in a Ministry.

Counsel for the Employer submitted that the Grievor’s appointment was a s.4(2) appointment under Regulation 977, where a Deputy Minister may appoint a civil servant to a position in an acting capacity. In support of his arguments, Counsel cited: P.S. G.B. P/0015/88 T. D. Frawley and The Crown In Right Of Ontario (Ministry of Community and Social Services; and P.S.G.B. P/0016/90 T. Almeida and The Crown in Right Of Ontario (Ministry of Municipal Affairs).

The Grievor submitted that he was not employed in an acting capacity in the position, as both he and the funding were transferred to the position, and that a competition for the position was waived. The Grievor also stated that he did not seek to be placed in a position in the Policy Division but wished to remain as an AM-20. He argued that this relief fell within the jurisdiction of the Public Service Grievance Board.

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This Board has carefully reviewed the submissions and arguments of the parties, as well as the relevant provisions of the Public Act and Regulation 977. In their submissions, the parties referred to the following provisions of the Act:

4. The Commission shall,

(d) assign persons to positions in the classified service and specify the salaries

payable.

6 (1) When a vacancy exists in the classified service, the deputy minister of the ministry in which the vacancy exists shall nominate in writing from the lists of eligibles of the Commission a person to fill the vacancy.

(2) The Commission shall appoint the person nominated under subsection (1) to a position on the probationary staff of the classified service for not more than one year at a time.

Reference was also made to the following sections of Regulation 977:

4(1) Subject to subsection (2) the Commission may upon the recommendation of the deputy minister, assign a civil servant from one position in his or her ministry to another position in his or her ministry.

(2) Where the incumbent of a position is unable to act or where the position becomes vacant, the deputy minister may designate a civil servant in the ministry to perform the duties of the position in an acting capacity.

The issue concerning the jurisdiction of this Board is essentially whether this Board has the authority under the Public Service Act and the Regulations thereto to place the Grievor in a permanent AM-20 position. The Grievor apparently worked for a lengthy period of time in such a position. In this regard the case before this Board has much in common with the Frawley case, although in the case before this Board, the Grievor alleges that he was placed in the position on a permanent basis. However, no documentary evidence was placed before this Board to indicate that the Grievor was placed in the AM-20 position by the Civil Service Commission, and the question before this Board is whether this Board may direct the Commission to do so.

In the Frawley case, the Board examined the powers of the Civil Service Commission, and the right of the Public Service Grievance Board to issue a directive to the Commission concerning the appointment of employees. At P. 8 of the Frawley case, the Board noted that the exclusive authority of the Civil Service Commission could not be challenged by grievance, and that the Civil Service Commission had the sole right under the Public Service Act to appoint and assign persons to positions.

The Board then went on to say:

“Section 6(2) of the Act provides that the Commission appoints someone to a probationary appointment in the case of a permanent position. Section 4(1) of the Regulation also provides that permanent assignments of civil servants within a ministry are to be made by the Commission. According to s.4(2) of the Regulation, where an acting appointment is made the Deputy Minister designates the civil servant who will take over in an acting basis. In this case it is not alleged that the Commission made a probationary appointment or a permanent appointment in the first instance. There is no provision in the Act or the Regulation by which the exclusive authority of the Commission to make permanent appointments or permanent assignments is circumscribed by the passage of time in an acting appointment, or even by the improper use of an acting appointment.”

The Board then went on to conclude that it lacked the jurisdiction to issue any declaration concerning the appointment of the Grievor.

In the Almeida case the Grievor requested a directive from the Public Service Grievance Board that he be permanently placed in a position, a request for relief not unlike that requested in the Frawley case. The Board in that case adopted the reasoning of the Frawley case and concluded that it lacked the jurisdiction to place the Grievor in a position on a permanent basis.

This Board has carefully reviewed both the Frawley and Almeida decisions, and can find no reason to differ from their conclusion that the Civil Service Commission has the exclusive jurisdiction to appoint persons to positions. On this basis then, the Public Service Grievance Board would not have the right to issue a directive to the Civil Service Commission to appoint the Grievor to an AM-20 position. This Board accordingly finds that it does not have the jurisdiction to award the particular relief sought by the Grievor.

DATED AT TORONTO THIS 28TH DAY OF JUNE, 1999.