P/0001/97

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

R. Lee Van Biesbrouck

Grievor

• and -

The Crown in Right of Ontario (Ministry of Environment and Energy)

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE GRIEVOR

Larry Robbins Labour Consultant

FOR THE EMPLOYER

Yasmeena Mohamed Counsel, Legal Services Branch Management Board Secretariat

HEARING

March 14, 2000

Decision

In a grievance dated January 29, 1992, Mr. Van Biesbrouck claims that he was not properly classified. By letter dated March 20, 1997, he requested that the Public Service Grievance Board (“PSGB”) hear his grievance. The Employer has taken the position that the PSGB does not have jurisdiction to hear this grievance. This matter came on before me for a determination of whether the PSGB has jurisdiction to hear Mr. Van Biesbrouck’s grievance. The parties had argued this issue previously before another Vice Chair, but for reasons not relevant here, another hearing was required.

Each party filed a number of exhibits with the Board. The parties also filed a statement of agreed facts upon which they were prepared to argue the jurisdictional issue. Those agreed facts are as follows:

1. Mr. Van Biesbrouck has been a civil servant with Government of Ontario since January 14, 1971.

2. He is a Professional Engineer certified with the APEO.

3. In 1985, he was appointed as a District Engineer in the Ministry of Environment in the Hamilton District Office and was classified as a PEN 16 (now PBE6).

4. In August, 1986, he was transferred to the position of Area Supervisor in the Ottawa Office and was classified as PEN 17 (now PBE 7).

5. In January, 1989, he applied for and received the position of Area Supervisor Specialist with the Abatement Office in the Haldimand Norfolk Brant District Office (headquartered in Hamilton). At this point he became classified as a PRP 18, which at that time was at the same rate of pay as the PEN 18 classification.

6. In the fall of 1989, there was a reorganization in the Region, the Haldimand Norfolk Brant Office was eliminated and amalgamated with the Hamilton Office. Mr. Van Biesbrouck remained as an Area Supervisor Specialist in the Hamilton Office with the same Job Description. His classification remained unchanged.

7. In August, 1991, there was an arbitration award for engineers and architects represented by PEGO which led to significant increases in their salaries.

8. As a PRP 18, there is no dispute that Mr. Van Biesbrouck did not benefit from those increases, and therefore at that time his salary rate fell below that of the PEN 18 classification.

The History of the Grievance

9. On January 29, 1992, Mr. Van Biesbrouck first grieved his classification and requested that his classification be changed to PEN 18 (now PBE 8) and that he receive full retroactivity back to January, 1990. (See Attachment 1)

10. On May 13, 1992, Mr. Hardy Wong responded to the grievance and indicated that the position was properly classified as PRP

11. (See Attachment 2)

12. On May 28, 1992, Mr. Van Biesbrouck requested that his grievance be submitted to the Deputy Minister for investigation. (See Attachment 3)

13. On June 11, 1992, Mr. Hardy Wong responded and indicated that the grievance should be properly filed with Mr. John Vogt, his immediate supervisor. (See Attachment 4.)

14. On June 25, 1992, Mr. Vogt forwarded the grievance to the Deputy Minister for investigation. (See Attachment 5)

15. On August 17, 1992, the Deputy Minister, Mr. Richard Dicerni, responded and denied the grievance. (See Attachment 6)

16. On August 25, 1992, Mr. Van Biesbrouck forwarded his grievance to Ms. Glenna Carr, the Chairperson of the Civil Service Commission in accordance with Section 57(3) of Regulation 881 of PSA. (See Attachment 7)

17. On September 15, 1992, Mr. Van Biesbrouck was advised by the chairperson of the C.S.C. that his grievance had been transferred to the Classification Rating Committee. (See Attachment 8)

18. On April 27, 1993, Mr. Van Biesbrouck received a notice of hearing scheduled for May 3, 1993. (See Attachment 9)

19. On April 30, 1993, Mr. Van Biesbrouck and the Employer agreed to have the hearing adjourned and requested in writing that the Classification Rating Committee assign a new hearing date for the grievance. (See Attachment 10)

20. In fact, the Classification Rating Committee did not assign a new hearing date. Mr. Van Biesbrouck inquired about the status of his grievance on April 12, 1995 and received no response. (See Attachment 11)

21. On March 20, 1997 Mr. Van Biesbrouck wrote to the Public Service Grievance Board and requested that his grievance be heard by that body as the Classification Rating Committee had been abolished. (See Attachment 12) The PSGB then set a hearing for June 27, 1997.

Subsequent Changes in Mr. Van Biesbrouck’s Classification

21. In May, 1993, Mr. Van Biesbrouck became an Acting District Manager with a classification of PRP 20.

22. In January, 1994, he was returned to his position of Area Supervisor Specialist classified at PRP 18.

23. In May, 1994 he became an Acting Chief of Approvals and Planning classified as a PBE 8.

24. In May, 1995 he applied for and was the successful applicant for a position of Environmental Approvals Engineer still working out of the Hamilton Office, and classified as a PBE 7. The start date of this position was May 29, 1995.

The Issue

25. It is Mr. Van Biesbrouck’s position that during the period when he was classified as a PRP 18, he was clearly performing engineering duties for the Ministry at the level of PEN 18 (now PBE 8).

26. In addition, several other Area Supervisor Specialists in the Ministry were performing similar work and classified as PEN 18’s. This included the Ottawa Office where Mr. Van Biesbrouck had worked from 1986 until 1989.

27. A copy of Mr. Van Biesbrouck’s Position Specification is enclosed as Attachment 13. This document accurately reflected the duties he performed. It also required certification as a Professional Engineer as part of the qualification criteria for the position.

28. While the Ministry indicated that it had rewritten the job specification, no such updated description was ever officially implemented to his knowledge, and Attachment 13 is the only official Position Specification in existence.

29. Mr. Van Biesbrouck was one of the main advisors at the Hagersville tire fire, and provided expert engineering testimony on behalf of the Government. Other examples of the engineering work which he performed during the relevant period included the Decommissioning at International Minerals Corp. near Dunnville, and his role as Project Manager at a number of contaminated sites.

30. Mr. Van Biesbrouck is seeking by way of remedy that his classification be adjusted to that of PEN 18 retroactive to January 1, 1990 for the entire period that he was incorrectly classified as a PRP 18, and that he be compensated for all lost salary and benefits including interest.

31. While there is no dispute over Mr. Van Biesbrouck’s subsequent classifications, there will be salary adjustments which would flow through to him as a result of the adjustment of his salary From 1990 to 1993 and such adjustments are part of the Compensation to which he is entitled.

The facts which are of relevance to the jurisdictional issue can be summarized as follows. On August 25, 1992, Mr. Van Biesbrouck forwarded his classification grievance to the Chair of the Civil Service Commission and on September 15, 1992, he was advised that his grievance had been referred to the Classification Rating Committee (“CRC”). The grievance was scheduled to be heard on May 3, 1993, but the parties agreed to adjourn that hearing date and no new date was scheduled. Mr. Van Biesbrouck requested that the PSGB hear his grievance because the CRC had been abolished.

Regulation 977 under the Public Service Act (“ the Regulation”) provides the right to grieve to certain persons in the public service. Part 5 of the Regulation prescribes the subject matter of a grievance and sets out a procedure for processing grievances. When Mr. Van Biesbrouck filed his grievance, the Regulation created a distinction between classification and other types of grievances. Section 44 of the Regulation provided that persons may file a grievance in respect of “working conditions or terms of employment”. If the grievance was not a classification grievance, a procedure was set out which ultimately led to a hearing before and a determination by the PSGB. A classification grievance was governed by section 51 of the Regulation and it provided that classification grievances would ultimately be resolved by the CRC.

As noted earlier, Mr. Van Biesbrouck’s grievance had been referred to the CRC in September 1992. Subsequent to the filing of the grievance, the Regulation has been amended twice. In late 1994, the Regulation was amended to reflect the provisions of the Social Contract Act. The focus of the amendments was on section 51, the section which dealt with classification grievances. The effect of the amendments was to prevent the CRC from hearing and deciding classification grievances. Subsection 5.1 provided that the CRC could not hear a grievance that was referred to it before April 1, 1996. Subsection 8 provided that the CRC could not decide a grievance with respect to all or any part of the social contract period. Subsection 9 provided that the CRC was precluded from deciding a classification grievance referred to it after March 31, 1993 and before April 1, 1996, if it had not rendered a decision on the grievance before December 16, 1994. One can readily see from these provisions why Mr. Van Biesbrouck’s grievance did not receive any attention during the social contract period.

The Regulation was again amended in 1996. As a result of the 1996 amendments Section 31(4) provides that “no grievance shall include the complaint that a position should be classified or is in the wrong classification”. With the elimination of classification grievances, there is no reference in the Regulation to the CRC. The 1996 amendments provide that Part 5, as it reads before the amendments became effective, continues to apply to a grievance referred to the CRC before April 1, 1993. When Mr. Van Biesbrouck requested that the PSGB hear his grievance, the right to grieve classification grievances had been eliminated and the CRC no longer existed.

Counsel for the Employer referred me to a number of decisions of the PSGB which determined that the PSGB did not have jurisdiction to hear and decide classification grievances, and that the appropriate forum for such grievances was the CRC. These cases arose at a time when the CRC was still in existence.

In the course of their submissions, counsel reviewed in detail the Regulation as it was framed when Mr. Van Biesbrouck filed his grievance and the changes to the Regulation resulting from the two amendments. Their submissions, which were concise and thoughtful, can be summarized as follows. Mr. Robbins maintained that the amendments to the Regulation did not have the effect of extinguishing Mr. Van Biesbrouck’s grievance. Given the fact that Mr. Van Biesbrouck continues to have a valid grievance, Mr. Robbins argued that it should be heard and that the only forum available to hear the grievance is the PSGB. Mr. Robbins distinguished those cases which found that the PSGB did not have jurisdiction to entertain classification grievances on the basis that they were decided when the CRC existed, which is no longer the case. Mr. Robbins referred to the liberal and broad interpretation the PSGB has given to the words “working conditions or terms of employment” and argued that the PSGB has the jurisdiction to decide Mr. Van Biesbrouck’s grievance. Counsel for the Employer submitted that the PSGB has never had the jurisdiction to entertain classification grievances and that it has not been given the jurisdiction to decide such grievances subsequent to the dismantling of the CRC.

After considering the submissions of counsel, it is my conclusion that the Employer’s position is correct in law. From the time in 1992 when Mr. Van Biesbrouck filed his grievance until the effective date of the current Regulation, the PSGB did not have jurisdiction to hear and decide classification grievances. That jurisdiction resided with the CRC. However liberally the PSGB interpreted the words “working conditions or terms of employment”, classification grievances were not within its jurisdiction. Under the current Regulation, a classification grievance cannot be filed. The words “a working condition or term of his or her employment” cannot encompass a complaint about classification. Even though the CRC no longer exists, the PSGB cannot decide a classification grievance because classification grievances are not permitted. From the time Mr. Van Biesbrouck filed his classification grievance to the present, the PSGB has not been provided with the authority to hear and decide classification grievances.

Tribunals such as the PSGB are creatures of statute or regulation and their jurisdiction is set out in the statute or the regulation. Until the current Regulation, the jurisdiction to decide classification grievances resided in the CRC. With the abolition of the CRC, the jurisdiction to decide classification grievances was not given to the PSSB. As noted above, the right to grieve classification issues no longer exists. The fact that the PSGB is the only tribunal under the Regulation does not in itself lead to the conclusion that it has jurisdiction to entertain Mr. Van Biesbrouck’s grievance.

For the foregoing reasons, it is my conclusion that the PSGB does not have the jurisdiction to hear and decide Mr. Van Biesbrouck’s grievance.

Dated at Toronto, this 29th day of June, 2000.