P-2002-0003
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Ron Chyczij
Grievor
- and -
The Crown in Right of Ontario (Ministry of Labour)
Employer
BEFORE
Kathleen G. O’Neil
Vice-Chair
FOR THE GRIEVOR
Ron Chyczij Alexandra Chyczij (on April 7)
FOR THE EMPLOYER
Andrew Baker Counsel Ministry of Government Services
HEARING
April 6 and 7, 2006.
Interim Decision
This decision deals with the employer’s preliminary objection to the effect that the Board has no jurisdiction to hear the grievance filed by Ron Chyczij, a Review Officer with the Pay Equity Commission, which claims he was improperly denied tuition assistance. The employer asserts that the grievance does not allege the violation of a right, commitment or promise to pay which forms part of the grievor’s terms and conditions of employment and thus is beyond the jurisdiction of the Board. Employer counsel advised the Board that the employer was not proceeding with a previously announced motion to the effect that the grievor had not made out a prima facie case.
Is the grievance within the jurisdiction of the Board?
The starting point for the Board’s jurisdiction is s. 34(1) and (4) of Regulation 977 under The Public Service Act as follows:
- (1) A person described in subsection (2) who is aggrieved about a working condition or term of his or her employment may file a grievance with his or her deputy within 14 days after becoming aware of the working condition or term of employment giving rise to the grievance. O. Reg. 168/96, s. 6 (1).
(4) The grievance must set out the reasons for the person’s complaint about the working condition or term of employment. O. Reg. 168/96, s. 6 (1).
This section sets the general contour of a grievance: it must be about “a working condition or term of his employment”. Section 36(1) of the same regulation provides that a grievor who is not satisfied with the decision of the deputy minister may apply to the Public Service Grievance Board for a hearing about his or her grievance.
In terms of jurisdiction, in the sense of whether the Board has the mandate or authority to embark on a hearing into a grievance, the threshold question is whether the grievor is aggrieved about a “working condition or term of his employment”. For the grievor’s part, the answer is clearly, “yes”. He states that he is aggrieved because he is employed under a working condition regarding tuition assistance, the benefit of which has been denied to him for improper reasons. Although the particulars filed by the grievor are rather wide-ranging, the underpinnings of the grievance, as gleaned from the documents filed and the arguments made by the grievor, can be fairly briefly stated. Pursuant to section 24 of Regulation 977 under The Public Service Act, the employer has a discretion to authorize tuition assistance, as follows:
- Where a deputy minister is of the opinion that participation in a staff development program that is not conducted by a ministry or by the Commission and does not require absence from employment will provide a civil servant with skills or knowledge of value to the public service, the deputy minister may authorize payment by the ministry of an amount equal to all or part of the tuition fees and all or part of the expenses specified by the deputy minister in connection with the participation of the civil servant in the program. R.R.O. 1990, Reg. 977, s. 24.
The grievor alleges that by practice and policy, that discretion has been delegated to local management. Further, he alleges that in practice, the discretion has been exercised to provide tuition assistance and other related expenses to other members of the management team for courses similar to the one for which he requested assistance, but not to him, on an arbitrary basis. He also alleges that there are a number of mandatory personnel directives and policies as to fostering learning and staff development which have not been complied with in this respect. He specifically alleges that he was denied the tuition assistance he requested for reasons related in part to his participation in grievance and other proceedings involving the employer, as well as other factors, such as personal dislike, which he considers arbitrary, discriminatory or in bad faith. The grievor refers to various cases in the Board’s jurisprudence for the proposition that the Board has jurisdiction where the issue relates to allegations of treatment that was arbitrary, discriminatory or in bad faith. These include Kanga and Ministry of Health, P0003/85 (Simmons) and Bertholo and Tighe and the Crown in Right of Ontraio (Ministsry of the Solicitor General & Correctional Services), P/0008/95 and P/0009/95 (Leighton). As well, he refers to the text Ontario Public Service Employment and Labour Law, by Hadwen, et. al. (Irwin Law, 2005) at pg. 675 which reads as follows:
The PSGB will review allegations of treatment that is:
i) contrary to the right or entitlements established expressly by an Act, Regulation, Directive, Order in Council or agreement;
ii) contrary to a policy that was “intended as an employment commitment and is generally applied as such” and has thus acquired legal force as part of the employment relationship; or
iii) discriminatory, in bad faith, unfair, inequitable, or unreasonable.
The grievor maintains that his grievance falls within at least the second and third category, but also the first, because of the combination of s. 24 of Regulation 277 and the Human Resources and other directives published by the employer.
Further, he argues that the employer is required to manage its discretionary programs in an equitable manner, such as the absenteeism program considered by the Grievance Settlement Board in OPSEU and The Crown in Right of Ontario (Ministry of Correctional Services) GSB 372/84 (Gorsky).
By contrast, the employer’s position is that the Board is deprived of jurisdiction to hear this grievance because the grievor cannot point to a discrete provision that obligates the employer to pay tuition assistance, at all, or in the grievor’s specific circumstances. Basically, the employer does not agree that the combination of circumstances, law and policy outlined by the grievor is sufficient to amount to a working condition or term of employment that has been breached. Counsel argues that the grievor is asking the Board to conduct a general review of discretionary management decision-making that is not attached to a contractual right of the grievor’s. Counsel referred to a variety of case law in support, including Garratt et al. Crown in Right of Ontario (Ministry of Health and Long-Term Care) PSGB#P/2003/1670 (O’Neil), OPSEU (Belanger et al.) and The Crown in Right of Ontario (Ministry of Correctional Services) GSB #1999-1782 et. al (Harris), OPSEU (Lesieur et al.) and The Crown in Right of Ontario (Ministry of Correctional Services) GSB #2002-1756 et. al. (Briggs)
I have carefully considered all the submissions and documentation before me, and have concluded that the matter should proceed to a hearing on the merits. The fact situation described by the grievor does not raise a bar to the Board’s jurisdiction. Rather, it raises a number of issues about the nature of the employer’s commitments in the area of staff development, and whether, in the denial of tuition assistance to the grievor, they were applied to the grievor in a way that constitutes a breach of a term or condition of employment for which the Board ought to order a remedy. The Board has the jurisdiction to determine, among other questions, whether as a matter of fact it was a term or condition of the grievor’s employment that he should have had his application for tuition assistance granted or considered without regard to consideration of his participation in litigation or other factors not pertinent to whether the proposed course would provide the grievor with skills or knowledge of value to the public service, as set out in s.24 of Regulation 977, and if so, whether that term or condition of employment was breached. The difference between the parties’ positions on this motion boils down to a difference of opinion as to whether the grievor will be able to succeed in establishing as a fact, that the regulation set out above, together with the interlocking directives, policies and practices flowing from it, amounts to a working condition or term of his employment and whether in the actual circumstances the employer breached any such entitlement. That question falls within the Board’s jurisdiction, but will require further evidence and submissions to be properly answered.
In sum, the issues argued by counsel for the employer on this motion are entirely relevant to whether the grievance has merit, but they do not persuade me that the Board lacks jurisdiction to determine what merit, if any, the grievance has. Jurisdiction over a grievance includes jurisdiction to determine any issues of fact arising out of the grievance, including the content of any alleged terms or conditions of employment, the breach of which might give rise to a remedy.
In the result, it is the Board’s finding that the dispute between the parties falls within the Board’s jurisdiction so that Mr. Chyczij’s grievance may proceed to a hearing on the merits.
Dated at Toronto this 4th day of July, 2006