P-2003-1986
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Robert Joseph Cartwright
Grievor
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Kathleen G. O’Neil
Vice-Chair
FOR THE GRIEVOR
Robert Joseph Cartwright and Richard Camman
FOR THE EMPLOYER
Suneel Bahal Counsel Management Board Secretariat
HEARING
December 9, 2004
WRITTEN SUBMISSIONS
January 17, 2005.
Decision
This decision deals with the preliminary objection of the employer to the effect that the grievance before me is not arbitrable, as the grievor is a member of the OPSEU bargaining unit, and thus ineligible to grieve the denial of a managerial posting before the Public Service Grievance Board (PSGB). The grievor asserts that the PSGB should take jurisdiction; otherwise, there would be a wrong without a remedy.
The grievor was an acting Operational Manager when he applied for a number of postings in February 2002. He was told that he was not eligible because he was not in a job-threatened position. Later, the vacancies were reposted, with the same competition number, but a wider search area. As he did not re-submit his application, it was not considered, leading him to grieve. It is not disputed that he remained a member of the OPSEU bargaining unit at the time.
Counsel for the employer argues that the PSGB has no jurisdiction as the grievor falls into one of the categories set out in Section 31 of Regulation 977 to The Public Service Act, which reads as follows:
31.(1) The following persons are not eligible to file a grievance under this Part:
A person within a unit of employees established for collective bargaining under the Crown Employees Collective Bargaining Act, 1993.
A member of the Ontario Provincial Police who is a cadet, probationary constable, constable, corporal, sergeant, staff sergeant, detective-sergeant or traffic sergeant.
A term classified employee.
Counsel notes that the grievor’s rights are set out in the collective agreement between OPSEU and the Crown in effect at the time, specifically Article 8.5.2, which reads as follows:
Where an employee is temporarily assigned to a non-bargaining unit position, he or she shall continue to pay dues to OPSEU and continue to be covered by the Collective Agreement for the entire term of the temporary assignment.
Further, counsel submits that the remedy requested is direct assignment to the position, which is within the exclusive purview of the Civil Service Commission. Counsel referred to three earlier PSGB decisions. The first of these was R. Ihasz and the Ministry of Finance P/0004/01, where the Board found that it had no jurisdiction over the grievance of a bargaining unit member who had applied for a management position. Secondly, there was R. Dileo and the Metropolitan Toronto Convention Centre P/0001/91, where the Board found it did not have jurisdiction over an employee under the Metropolitan Toronto Convention Centre Act, as he was not appointed under the Public Service Act. The fact that the grievor did not have another forum for his complaint did not lead the PSGB to assert jurisdiction in that case. Finally, in Rampersad and the Workers Compensation Board, the Board declined to hear the discharge grievance of a managerial employee of the Workers’ Compensation Board, because he was not appointed under The Public Service Act.
On behalf of the grievor, Mr. Camman stressed that a venue was needed to hear this complaint. He noted that Mr. Cartwright was not in a temporary, or training assignment, but an acting assignment, for close to three years, which in his view, makes him a member of management. Nonetheless, they do agree he was a member of the bargaining unit. Facts which were noted in support of a finding that there should be access to the management grievance procedure included that his pay, schedule, vacation and overtime were based on protocols and provisions for managerial employees. Further, it was submitted that the grievor should have access to the PSGB because there is nothing in the collective agreement about management positions.
In Mr. Cartwright’s written submission regarding the scope of s. 31(1), he submitted that The Crown Employees Collective Bargaining Act does not apply as it relates to a collective agreement, which does not apply as he is looking for a management position. He submitted that if the employer invites union members to advance into management, as it does, it implies that it does so under the Public Service Act, which governs those persons. To find otherwise is to suggest that a wrong cannot be remedied. In this case there has been a wrong and there must be a remedy. Further, he wrote that the fact that the competitions are run in accordance with any rules proves the employer recognizes that they are bound by the The Public Service Act to conduct a fair scheme. He argues that the intent of the legislature in creating two Acts to cover union and non-union employees was to take positions out of the common law system. The grievor is of the view that it would be illogical to have promotions into management fall through the cracks, and states that the enactment of two Acts is demonstrative of the fact that the legislature intended a person such as the grievor to be included under The Public Service Act. He submits that to find otherwise is to find a legislative intent to create an illogical scheme, which cannot be. Further he indicated that OPSEU has advised him that it cannot proceed on a grievance because it is a management position. Thus the proper avenue of complaint should be the PSGB.
In support of the grievor’s argument, reference was made to the Staffing Operating Policy of Management Board Secretariat. This is a document which, by its own terms, applies to unionized employees when a collective agreement is silent, as well as to all employees of the Ontario Public Service except where noted. Given the view I take of s. 31 (1) (1) above, it is not technically necessary to comment on the policy. However, in view of the arguments made, it is appropriate to note that there are portions of the policy which provide a basis for the grievor’s observation that competitions for managerial competitions are subject to certain rules. Nonetheless, and more germane to the issue now before me, there are other portions which tend to support management’s view of the issue before me. For instance, Section 2.5 and the definition of a Temporary Assignment (pp. 10 and 24 of the June 1, 2000 version before me) are worded so that the term temporary assignments includes acting assignments. When read together with the collective agreement provisions, this tends to counter the grievor’s position that, given the length of time he was acting, he should be considered outside of the provisions of the collective agreement related to temporary assignments. Further, the policy provides that the terms and conditions concerning temporary assignments should include confirmation that the employee’s rights and entitlements flow from the last permanent, classified position the employee held before the temporary assignment. That would support the employer’s position that the collective agreement continues to apply, despite the grievor’s lengthy period as an acting manager.
In any event, my task is the narrow one of determining whether the PSGB has the authority to hear this matter. In my view, the key element for that determination is the parties’ mutual acceptance of the fact that the grievor was a member of the bargaining unit at the time he grieved. In this regard the statutory exclusion set out in s. 31(1) (1) above is clear. The grievor holds the view that he ought not to be covered by The Crown Employees Collective Bargaining Act, 1993 (CECBA) in his pursuit of a managerial job. However, this does not change the fact that the OPSEU bargaining unit of which he is a part was established for collective bargaining under the terms of CECBA. Accordingly he is not eligible to grieve under the above-noted section of the Public Service Act. Without a valid grievance under that part, the PSGB has no jurisdiction to adjudicate.
I have carefully considered all the submissions put forward, but they do not change things so that that the statutory exclusion somehow does not apply to the grievor. The grievor feels that it would be illogical to have a scheme where members of the bargaining unit in acting positions are not allowed to grieve when dissatisfied with the managerial selection process, and that it cannot have been intended that such a grievance fall through the cracks. Although an adjudicator should always attempt to interpret statutes, policies and contractual provisions so as to avoid absurd results, it is not my view that it is evident that the legislature’s choice is in that category. Similarly, it is not obvious that the existence of two statutes should authorize the PSGB to read in an intention that acting managers should have access to the managerial grievance process. Rather, the statute has drawn a clear line which prevents the PSGB from hearing grievances from employees falling within a bargaining unit. The grievor’s right to disagree with where that line has been drawn does not give me jurisdiction to hear his grievance, even if there is no other clear avenue of recourse. Further, there is no sufficient basis for me to find that there is some implied application of The Public Service Act when management awards an acting assignment in the management ranks to a bargaining unit employee. Even explicit agreements can be declared void if they conflict with a statutory provision; it is even more difficult to envision an implication which could dislodge the application of the statutory exclusion here. Although the grievor’s desire for a venue to air his dissatisfaction with the selection process for the management positions in question is understandable, it cannot create jurisdiction where there is none. The PSGB is a creature of statute, and has no power to adjudicate a grievance from a category of person excluded by that statute.
For the above-noted reasons, the grievance is dismissed.
Dated at Toronto this 18th day of March, 2005