IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Lafreniere

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

Danielle Lafrieniere

FOR THE EMPLOYER

Omar Shahab Counsel Ministry of Government Services

Conference Call Written Submissions

May 15, 2008. June 27, 2008.

Decision

In the grievance before me, Ms. Danielle Lafrenière states that she did not receive the pay increases she should have in 2004/2005, and that certain entries should be removed from her file in the employer’s computerized systems known as WIN and Corpay because of the settlement reached in an earlier grievance.

This decision deals with the employer’s motion to dismiss the grievance without a hearing on the merits on the basis that the matter is beyond the jurisdiction of this Board, as the grievor is in the AMAPCEO bargaining unit and otherwise foreclosed by the settlement of the previous grievance in 2005.

The Facts

The parties have exchanged statements of facts, which disclose sufficient undisputed facts to dispose of the employer’s motion, which will be related as necessary below.

The grievor, who currently holds the position of Senior Business Analyst in the Ministry of Community Safety and Correctional Services, has been in the bargaining unit represented by AMAPCEO (The Association of Management, Administrative and Professional Crown Employees of Ontario) since June 30, 2005, when the position that she then held was transferred from the managerial ranks to the AMAPCEO bargaining unit. She was not informed of the transfer until July 27, 2005. On June 2, 2005, shortly before the transfer to AMAPCEO, the grievor had entered into confidential Minutes of Settlement concerning a grievance that was before this Board, which included allegations in respect of a performance evaluation and her 2003-04 performance development plan. In the interests of maintaining the confidentiality of those terms as much as possible, I will not set out all of them or the details of the issue surrounding them. Suffice it to say that, after the settlement, certain notations appeared in the grievor’s Corpay file, including the words “per MOS”, which the grievor submits violate the confidentiality clause. “MOS” was understood by the parties as an abbreviation for Minutes of Settlement. The employer’s position was that they were implementing the settlement and recording the necessary personnel information that resulted from it.

The current grievance also complains that Ms. Lafrenière did not receive “the negotiated 2% increase for the period April 1, 2004 to 2005”. According to the employer’s submissions, this increase was pursuant to the AMAPCEO collective agreement which had a term of April 1, 2004 to March 31, 2006. Further, the employer observes that when the grievor’s position was transferred into the AMAPCEO bargaining unit, the classification had the same salary maximum. Under the Pay on Assignment Operating Policy, this was considered a lateral assignment and her salary remained the same.

The grievor included in the facts she wished considered by the Board on this motion a number of facts that the employer did not consider relevant to the motion. Employer counsel also submitted that if the Board determined that these facts should be included, the Ministry should be given additional time to verify the accuracy of the statements made. On a motion for dismissal, the Board assumes the grievor’s factual assertions to be true and provable, although no factual findings are made, so that there is no need for further verification at this stage of the proceedings. These additional factual assertions include that, at the time her position was transferred into AMAPCEO, she had 34 staff reporting to her and that she filed a grievance on July 19, 2005 stating that the position was improperly transferred from MCP to AMAPCEO. The employer denied the grievance stating that the PSGB did not have jurisdiction over the grievance. It should be noted that this grievance is neither the one that was the subject of the settlement, nor the one being dealt with on this motion.

As well, the grievor asserts that in December, 2005, the Grievor’s position title was changed from Manager of Corrections Business Applications to Coordinator of Business Applications, and that on August 28, 2006, the Grievor’s position of Coordinator of Business Applications was declared surplus. Since then, the grievor asserts that a new position of Solutions Portfolio Manager at the ASM01 level has taken over the entire job responsibilities that originally belonged to the Manager of Corrections Business Applications.

The grievor also asserted certain facts and conclusions about the outcome of the settlement dated June 2, 2005, which are not necessary to set out in this decision which is limited to the jurisdictional issue, and would risk further divulging the contents of the Minutes of Settlement, perhaps unnecessarily.

Submissions and conclusions

The Ministry submitted that the discrete issue presently before the Board was whether it has jurisdiction to hear this specific grievance. The employer’s primary position is that the Board is without jurisdiction as the grievor’s current position falls within AMAPCEO, as a result of which the Crown Employees Collective Bargaining Act (CECBA ) is the governing statute. It is clear that employees covered by CECBA do not have the right to file a grievance which would fall within the jurisdiction of the Public Service Grievance Board, both under the regulation in place at the time the grievor filed, and under the current statute. At the time she filed her current grievance on July 31, 2007, Regulation Reg. 977 under The Public Service Act specifically excluded such employees in section 31(1) as follows:

(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.

To similar effect are ss. 4 and 5 of Regulation 378/07 under the Public Service of Ontario Act, 2006, S.O. 2006, c. 35, which came into effect August 20, 2007, after this grievance was filed:

(1) Subject to subsection (2), a public servant who is aggrieved about a working condition or about a term of his or her employment may file a complaint about the working condition or the term of employment with the Public Service Grievance Board,

(a) if the public servant is eligible under sections 5 and 7 to file such a complaint;

ELIGIBILITY TO FILE A COMPLAINT

Eligibility generally

(1) Subject to subsections (2) and (3), a public servant or other person is eligible to file a complaint if he or she was appointed by the Public Service Commission under subsection 32 (1) or (2) of the Act to employment by the Crown. O. Reg. 378/07, s. 5 (1).

(2) If any of the following circumstances existed at the material time, a public servant or other person is not eligible to file a complaint:

He or she was a member of a bargaining unit represented by a bargaining agent under the Crown Employees Collective Bargaining Act, 1993 or under the Ontario Provincial Police Collective Bargaining Act, 2006. …

Employer counsel refers to a decision of this Board on a similar motion, Ireland and Ministry of Community Safety and Correctional Services PSGB # P-2004-2316 (O’Neil), the most relevant portion of which reads as follows:

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.

Counsel for the Ministry argues that the finding in the above case is equally applicable to the facts of Ms. Lafrenière’s grievance, and is thus determinative of the issue of the capacity of the grievor to bring the current grievance, as it clearly finds that an AMAPCEO employee does not have the ability to bring a grievance before the PSGB. Further, he submitted that although frustration with a lack of recourse is understandable, it cannot create jurisdiction where the law is very clear that there is none.

The second basis for the employer’s motion is that the matter is foreclosed by the Minutes of Settlement dated June 2, 2005. It is the employer’s position that the salary consequences complained of by the grievor in the AMAPCEO position were a direct result of its implementation of the terms of the settlement. Counsel argues that the settlement cannot be vitiated by lack of information that came to the grievor later, such as the fact that her position would be transferred to AMAPCEO. Counsel submits that even if it is a case where she might not have entered into the settlement if she had known the transfer was coming up, that does not mean the settlement is not binding.

In this regard counsel refers to an earlier decision of this Board Younger and Ministry of Community Safety and Correctional Services PSGB # P-2006-2458 (O’Neil), dated July 18, 2007. In that case, when the grievor entered into a settlement, he had not foreseen the possibility of a subsequent negative performance evaluation, which lead to no additional compensation for performance in his final year of employment. As a result, his pension, vacation and termination pay were less than he had anticipated when he entered into the settlement. The parties had not discussed pay for performance during the negotiation of the Minutes of Settlement, and the grievor felt badly dealt with because the employer remained silent about such a significant issue and then behaved very differently than in any of his previous years of service. The Board found that the matter was nonetheless foreclosed by the previous settlement which contained a comprehensive release clause.

To similar effect, counsel refers to the following decisions of the PSGB: Gottwald and Ministry of the Attorney General PSGB # P-0127/96 (Leighton), dated March 19, 1998,

Lundie and Lavoie and Ministry of the of the Solicitor General and Correctional Services PSGB # P/0090/98, P/0010/99 (Leighton), dated May 16, 2000 as well as arbitrations under other statutes: Canada Post and CUPW (Winlaw) [1993] 36 LAC (4th 216 (Joliffe), Ottawa Hospital and OPSEU (Chidambaram) 2002 CanLII 79020 (ON LA), [2002] 105 LAC (4th) 134 (Kaplan). It is the employer’s position that, short of duress or other factors going to capacity, parties should be held to settlements.

As for the portion of the current grievance in which the grievor asks for comments to be removed from the employers’ computerized systems, counsel submits that the WIN (Workforce Information Network) database is a tool used by Human Resources to track pay history, and entries into that system should not be considered a breach of the settlement.

Asserting that the Board remained seized only with respect to implementation, counsel submits that the grievor’s request goes beyond the terms of the settlement, and that the Board has no right to read in new terms or interpret the settlement in a manner inconsistent with the clear terms of the document. Counsel submits that the grievor’s complaint goes well beyond any issue of implementation.

Counsel for the employer invites a finding that the facts set out by the grievor do not show that confidentiality has been breached and therefore there is no jurisdiction. Counsel argues that this is similar to the finding of the Grievance Settlement Board in OPSEU and the Ministry of the Attorney General (Rittwage) GSB# 2003-3443 (Leighton) dated January 31, 2005, where it was not considered third party disclosure where someone saw the settlement cheque during the financial processing required by normal administrative procedures. Counsel argues that the wording “per MOS” does not disclose any information about the terms of the settlement, beyond what was relevant to explain the grievor’s pay record as recorded in the computerized tracking system, which should be considered part of the implementation of the settlement, in the employer’s view. Counsel further observes that only someone with authorization can access the database, and that this should not be considered to amount to a third party disclosure.

It is the employer’s position that if the grievor was concerned that such information not be in the usual computerized systems, it would have been incumbent on her to negotiate a term dealing with that. The employer requests that it be found not to have breached the settlement, or to have made any prohibited disclosure.

Further, counsel argues that since there has been no breach of the confidentiality provisions the Board has completed its adjudication and is now functus officio similar to the decision in Kinark Child and Family Services (Penk grievance) [2007] 90 CLAS 163 (Howe).

Employer counsel also indicated that if it were decided that the Board has jurisdiction over the question of whether the settlement was breached, he would want a further opportunity to address the issue of whether the disputed entries into the computerized systems were part of the standard implementation practice.

In her submissions, the grievor emphasized that when she negotiated the settlement, all documentation was to be removed from her file, and this issue about the comments in the WIN system only came up a year later. She notes that the WIN database is accessible to managers, so that a hiring manager for a promotion could access it, with potentially negative implications. In the grievor’s view, the whole point of the settlement was to move forward, and not colour her record, which is defeated by the employer’s entries into the WIN database.

In her written statement of facts the grievor also referred to the “Pay on Assignment Operating Policy”, which states that its purpose, amongst other things, is to ensure that employees are paid equitably and to ensure that discretionary pay decisions are defensible. It is the Grievor’s” contention that the Ministry has not acted fairly in this matter, that its discretionary pay decisions are not defensible, and as a result, the matters in dispute in this grievance are in fact within the purview of the Board.

Since the terms and conditions of the settlement were to remain confidential, the grievor queried why a copy of the settlement had been attached to the Ministry’s written statement of facts. The Ministry responded saying that the settlement was not confidential for the purposes of implementation or interpretation and that the Grievor herself had placed the settlement before the Board in claiming that the Ministry had failed to implement it.

The Board afforded the grievor time to respond to case law which she had not had an opportunity to read prior to the hearing. In her written submissions, the grievor argued that none of the legal precedents argued by the employer apply to her specific situation.

Further, the grievor asserts that the timing of her transfer to AMAPCEO and the way it was done resulted in a complete denial of her rights as an employee of the government and a citizen of Canada. She stated that the government knowingly and intentionally affected a transfer from Management to AMAPCEO, without notification to her, within a time frame whereby she could not have grieved while a member of Management, as she was transferred to AMAPCEO as of June 30, 2005 but was not notified until July 27, 2005. The grievor finds this to be a flagrant misuse of power and the rules and regulations that purport to represent fair and equitable treatment within the Ontario Public Service. Moreover, she expressed frustration at the situation where, in her view, there appears to be no body within the Government that will assume responsibility for dealing with such conduct within its ranks.

The Employer takes the position that the Grievor's post-hearing submissions should not be considered by the Board in deciding the issue of whether it has jurisdiction to hear this grievance on three grounds:

Firstly, the Board afforded the Grievor the right to make limited submissions in response to the case law presented by the Employer at the May 15 teleconference. The employer submits that the Grievor's submissions do not address the case law but rather constitute a clear attempt to introduce additional facts, which does not conform to the directions of the Board.

Secondly, the employer asserts that to allow the grievor to revisit the statement of facts worked out with the parties would be extremely prejudicial to the Employer and would unnecessarily further prolong the preliminary process.

Lastly, the grievor’s submissions were made after the deadline set by the Board with no explanation for the delay. The fact that the grievor did not make any attempt to provide notice that she would need an extension is an additional reason not to consider her most recent submissions, in the employer’s view.

Counsel submitted that, in the alternative, if the Board does decide to accept the grievor’s submissions, they should be given little if any weight since they are simply unsubstantiated assertions, as well as irrelevant to the question of whether this Board has jurisdiction to hear the substantive arguments of the Grievor's case.

The employer observes that the Grievor's allegations made in her submissions will only become relevant at a hearing on the merits of the grievance after the appropriate forum is determined.

Despite the short delay in the grievor’s response, the Board has taken all the submissions into account in dealing with the motion, as there did not appear to be any prejudice to the employer in doing so.

Having considered all of the above, the Board has determined that it has no jurisdiction to hear the aspects of the grievance dated July 31, 2007 which deal with the grievor’s pay. These are matters which were grieved subsequent to her transfer into the AMAPCEO bargaining unit. The grievor has not disputed that while in the AMAPCEO bargaining unit she is in a bargaining unit covered by CECBA. It is very clear in the statutes set out above that this Board has no jurisdiction over grievances filed by a person within such a bargaining unit. The Board is created by statute, and only has the powers and jurisdiction given to it by statute. Further, the fact that there are provisions in the Pay on Assignment policy which the grievor feels were not adhered to cannot give the Board Jurisdiction not granted by the statute.

This finding also applies to the assertions made in the post-hearing submissions of the grievor to the effect that the timing of the notification of the transfer to AMAPCEO was deliberately done in order to deprive her of her grievance rights as a member of management. The Board is not in a position to comment on whether the grievor has any other recourse for that allegation, but it is clear that, while she is a member of the AMAPCEO bargaining unit, she does not have recourse by way of grievance to this Board. Given these findings, it is not necessary or appropriate to deal with the employer’s comments regarding the impact of the July 2, 2005 settlement of the grievor’s pay while in the AMAPCEO bargaining unit.

However, the allegations concerning the July 2, 2005 settlement have a different status. Although they appear as part of the new grievance filed at a time when the grievor’s position was within the AMAPCEO bargaining unit, they relate to the settlement of a grievance over which this Board clearly had jurisdiction, and are easily severable from the new pay allegations. As well, one of the terms of the settlement was that this Board was “seized with respect to the terms and conditions of the settlement.” There was no suggestion in the employer’s submissions that this retention of jurisdiction did not survive the grievor’s transfer into the AMAPCEO bargaining unit. Rather, it was the employer’s position that the Board’s lack of jurisdiction stemmed from the fact that there had been no breach of the confidentiality provisions. However, it is the Board’s view that the question of whether there has been a breach of those provisions is part of the merits of the allegation, rather than a jurisdictional issue. To the extent that the employer’s position was in essence a suggestion that there was no prima facie case for a breach of the settlement, the Board is of the view that there is an arguable case for a breach of the terms of the settlement, which include the confidentiality clause. Whether or not those allegations will be successful cannot be determined on this preliminary motion.

During the teleconference in which this motion was heard, the grievor made suggestions as to revisions of the disputed electronic notations which would be acceptable to her. In an effort to assist the parties in avoiding further proceedings on this aspect of the matter, if possible, the employer is directed to reconsider those suggestions in light of the Board’s finding of jurisdiction, and to communicate with the grievor by September 5, 2008 as to whether it has a proposal to make in regard to these suggestions or otherwise to settle the remaining issue.

If the employer does make such a proposal, the grievor is to respond to the employer by September 12, 2008. If the employer decides not to make a proposal, counsel is to inform the Board of this by September 5, at which point the Board will give further directions as to the resolution of the outstanding issue related to the 2005 settlement. If proposals are exchanged, but resolution is not reached in a reasonable time, either party may contact the Board for directions or hearing dates.

Dated at Toronto, this 27th day of August 2008.

Kathleen G. O’Neil

Vice-Chair

Lafreniere v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2008 CanLII 70542

Case Summary

IN THE MATTER OF AN ARBITRATION

BETWEEN

Grievor

Lafreniere v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2008 CanLII 70542

Case Summary

IN THE MATTER OF AN ARBITRATION

BETWEEN

Grievor