P-2004-2316
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Greg Ireland
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
Greg Ireland
FOR THE EMPLOYER
Sean Kearney Senior Counsel Ministry of Government Services
HEARING
July 12, 2006.
Decision
This decision deals with the employer’s preliminary objections to the grievance filed by Mr. Greg Ireland, which claims that the rules relating to promotional increases have been incorrectly applied to him. The employer asks that the matter be dismissed without a hearing on the merits on three separate grounds: that the grievance was untimely, that the Board has no jurisdiction to hear the matter as the grievor was, at the time of the grievance filed on August 3, 2004, and ever since, a member of the Administrative and Professional Crown Employees of Ontario (AMAPCEO), rather than a manager with a right to bring a grievance to the Public Service Grievance Board (PSGB), and that there is no prima facie case.
Although the grievor’s claim arises out of a period when his home position was that of an operational manager, it is common ground that he was not in that position when he grieved. In November 2000, he had been successful in a competition for a position at the Bell Cairn Staff Training and Development Centre, and commenced a two-year secondment, acting in the classification APL 17, which falls into the AMAPCEO bargaining unit. At that time he received a 3% promotional increase. In March 2002, for the duration of the OPSEU strike, he worked as an Operational Manager at the Hamilton-Wentworth Detention Centre, and was initially paid at the top rate for an OM 16. However, that was later changed retroactively to his applicable APL17 rate. On February 4, 2003, he was directly assigned to the APL17 position, on a permanent basis, and has received AMAPCEO increases since, as he had since 2001. On March 11, 2003, an Order-in-Council authorized a 5% increase to the OM 16 classification retroactive to April 1, 2002. The grievor claims the benefit of that increase, which he says, together with other increases to which he was entitled, would have taken him to the top rate as an APL 17 two years sooner. He reached that top rate in November 2005, but believes he should have been there in November 2003. He has been advised by AMAPCEO that they cannot deal with the dispute, as it arose out of the time he was in a managerial job.
The grievor is concerned that despite his extensive experience, others promoted later than he was will be paid more on their first day of work than he would receive after being an APL17 for two and a half years. He has 19 years with the Ministry, having worked at several institutions, on the floor and as an Operational Manager. At the time of the grievance he was the Provincial Coordinator, Use of Force Program, at Bell Cairn. He submitted that he was seeking to be treated fairly in regards to the application of the rules to his pay increases, in light of his experience and dedication.
The most fundamental of the employer’s objections relates to the fact that the grievor was a member of the AMAPCEO bargaining unit when he filed the grievance. In arguing that this fact means that the Board has no jurisdiction, employer counsel submits that a grievor has to be a manager at the time that they grieve. Section 31 of Regulation 977 to The Public Service Act 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.
The grievor does not dispute the fact that the AMAPCEO bargaining unit into which his classification falls is a “unit of employees established for collective bargaining under the Crown Employees Collective Bargaining Act, 1993.”. Since the grievor is a person within such a bargaining unit, by straightforward application of Paragraph 1. of section 31(1), above, the grievor is not eligible to file a grievance under the regulation. As a result, he does not have a grievance which can be brought to the PSGB for a hearing under s. 36(1) of Regulation 977. Accordingly, the Board is not in a position to deal with the dispute and it must be dismissed.
Nor is the Board in a position to deal with the grievor’s concern that such a decision will leave him with no recourse, as the language of the regulation is clear that he is not eligible to file a grievance over which it has jurisdiction. For somewhat similar situations, see OPSEU (Cartwright et al.) and the Ministry of Community Safety and Correctional Services (Abramsky) GSB#2002-1457 et. al., a decision of the Grievance Settlement Board and Cartwright and Ministry of Community Safety and Correctional Services PSGB # P-2003-1986 (O’Neil), a decision of this Board, and the cases cited therein.
In the result, it is not necessary to deal with the employer’s other objections, based on timeliness and the argument that there is no prima facie case, on the basis that the grievor is asking to be paid increases based on the terms and conditions of employment of a classification other than the one he was working in at all relevant times.
Similarly, I am unable to deal with the merits of the grievor’s arguments, which included his submission that the Ministry’s approach showed an absence of good faith in the sense of behaviour that is ethically correct and in accordance with the correct rules of law, and a submission that he improperly lost out on the opportunity to decide whether to return from his acting position in light of the retroactively increased OM16 wage grid. The grievor noted that, at the time he took the permanent APL 17 position, a month before the Order-In-Council came down, he did not know there would be a retroactive increase. He submitted that he was accordingly not in a position to accurately compare the terms and conditions of the two jobs before he decided to take the AMAPCEO position on a permanent basis.
It is also appropriate to note that, as requested, after the hearing, employer counsel provided the Board with a copy of the Order-in-Council to which the grievor referred at the hearing. Counsel also made brief written submissions to the effect that the grievor would not, on the face of the Order-in-Council and related documents, have been entitled to the relief he was seeking, in any event, as the he did not meet the necessary conditions. Had the Board decided that it had jurisdiction, the grievor would have been given an opportunity to respond to those submissions. However, it was not necessary to afford the grievor that opportunity, as the decision to dismiss the grievance is not based on the provisions of the Order-in-Council or the submissions made by counsel in his covering letter. Rather, it is based on the fact that the Board has found that the grievor was not eligible to file this grievance, and that it is accordingly not in a position to entertain the matter at all.
In the result, for the reasons set out above, the grievance is dismissed.
Dated at Toronto this 1st day of August, 2006