P/0018/99

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Todd Smith

Grievor

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services)

Employer

BEFORE

John A. Willes

Vice-Chair

FOR THE GRIEVOR

Todd Smith

FOR THE EMPLOYER

Laura Williams Staff Relations Officer Ministry of the Solicitor General and Correctional Services

HEARING

October 19, 1999.

Decision

The grievance in this matter arose out of a dispute between the Employer and the Grievor, Todd Smith, an Operational Manager at the Maplehurst Detention Centre, concerning the Grievor’s continuous service date.

According to the submissions of the parties, the Grievor was a member of the bargaining unit prior to 1990, and at the time that the Grievor left the bargaining unit for a management position, his continuous service date was calculated to be September 12, 1983 under the collective agreement then in force. There is no dispute between the parties as to the accuracy of the date that was calculated at that time.

Prior to 1998, as a result of a number of Grievance Settlement Board decisions and settlements made between the Employer and the Union representing the bargaining unit, new collective agreement language was agreed upon by the parties and a new approach was taken as to how an employee’s length of service should be calculated. The Grievor is of the opinion that this new approach to the calculation of length of service (now contained in s.18 of the collective agreement) should be used to establish his date of service with the Employer, and requests the Public Service Grievance Board to direct the Employer to recalculate his date of continuous service using the new approach.

Counsel for the Employer submits that this Board has no jurisdiction to apply the provisions of a collective agreement to a manager whose working conditions are governed by the Public Service Act, R.S.O. 1990, as amended, and the Regulations under the Act. Counsel stated that the Grievor’s date of continuous service is determined under s.56(1) of Regulation 977, which provides as follows:

56(1) In this Part,

“continuous service” means the period of unbroken service during which a person is an employee and during which the employee,

(a) receives his or her regular salary,

(b) is absent on leave without pay for a period that does not exceed thirty days, or

(c) is absent on pregnancy leave or parental leave under subsection 65(2) or (7),

and where the employee is a civil servant, “continuous service” includes any period of unbroken service in the public service immediately before the employee’s last appointment as a civil servant, but “continuous service” shall not include, or be deemed to be interrupted by, a leave of absence or break in service referred to in section 12 of the Act;

Counsel also stated that the Public Service Grievance Board has jurisdiction to deal with working conditions grievances that may arise under Part II and Part VI of Regulation 977, but has no authority to enforce rights under bargaining unit collective agreements.

In support of her position, Counsel for the Employer cited: Laird et al and The Crown In Right Of Ontario (Ministry of the Solicitor General and Correctional Services) P.S.G.B. P/0050/95 (Springate), and Blakney et al. and The Crown In Right Of Ontario (Ministry of the Solicitor General and Correctional Services) P.S.G.B. P/0014/96 (Leighton).

The Grievor stated that he believes that the Public Service Act should be interpreted in such a way that all managers are treated fairly and equitably, and since officers hired after the change in the collective agreement had their continuous service dates calculated under the new approach, all officers who moved to management in the past should have their continuous service dates adjusted in the same manner as well. The Grievor submitted that the Public Service Grievance Board should have jurisdiction to direct such a change on the basis of equity and fairness.

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This Board has carefully reviewed the evidence and submissions of the parties with respect to the preliminary objection to this Board’s jurisdiction to adjust the Grievor’s continuous service date in accordance with the provisions of a collective agreement negotiated between O.P.S.E.U. and the Employer.

The Grievor is not a member of the bargaining unit at the present time, and he is not subject to its terms and conditions of employment. When he moved from the bargaining unit in 1990 to join the ranks of management, his continuous service date was calculated in accordance with the provisions of the collective agreement in force at the time, and both parties agree that it was correctly calculated.

Once the Grievor joined the ranks of management, his working conditions and his rights vis-à-vis the Employer shifted to the Public Service Act and the Regulations thereto. He effectively lost all employment rights he might have had under the collective agreement, and acquired new employment rights under a statute.

I can find nothing in the Public Service Act or Regulation 977 that would suggest that this Board has the authority to look to the collective agreement to determine a management employee’s rights on a working conditions issue. Indeed, Regulation 977 provides for a ‘continuous service’ calculation that would apply to management personnel, and would be applicable to the Grievor. According to Counsel for the Employer, a calculation under this provision of Regulation 977 would correctly reflect the Grievor’s current continuous service date.

With respect to the Grievor’s argument that this Board should change his continuous service date on the basis of equity and fairness, the authority of this Board to make such a change has been addressed in other cases. In the Laird case (supra) the Public Service Grievance Board was urged to adopt a compensation policy decision made for the bargaining unit on the basis that management employees should be entitled to benefits at least equal to those granted to the bargaining unit. The Board in that case rejected the argument and noted that:

“There may be practical reasons why an employer may want to ensure that managerial staff receive benefits that are at least equal to those enjoyed by bargaining unit employees. These include issues relating to staff morale and not wanting to

discourage bargaining unit employees from accepting promotions into management. These types of considerations, however, do not create an entitlement on the part of management staff.”

The Board adopted this reasoning in the Blakney et al. case (supra), and I can see no compelling reason why this Panel should not do the same, particularly since the matter of a manager’s continuous service date is specifically addressed in the provisions of Regulation 977 that would apply to the Grievor.

The grievance is therefore dismissed.

Dated at Toronto this 9th day of November, 1999.