P-2010-1738

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Ron Chyczij

Complainant

• and -

The Crown in Right of Ontario (Ministry of Labour)

Employer

BEFORE

Don Carter

Chair

FOR THE COMPLAINANT

Ron Chyczij

FOR THE EMPLOYER

Jennifer Richards Ministry of Government Services Labour Practice Group Counsel

HEARING

February 8, 2011.

Decision

1This complaint raises the issue of whether the employer is obligated to pay those employees who attend at a hearing of the Public Service Grievance Board on behalf of a complainant - either as a representative, advisor, or witness not under subpoena. It was not disputed that those employees who are absent from work by reason of a summons to attend a hearing as a witness were entitled to one of the options expressly provide by section 44 of the Management Board of Cabinet Compensation Directive last revised on February 18, 2010.

Section 44 provides:

“Where an employee is absent by reason of a summons to serve as juror or to attend as a witness, the employee may at his or her option,

(a) treat the absence as a leave without pay and retain any fee he or she receives as a juror or as a witness;

(b) deduct the period of absence from his or her vacation credits or overtime credits or both and retain any fee he or she receives as a juror or as a witness; or

(c) treat the absence as a leave with pay and pay to the Minister of Finance any fee he or she has received as a juror or as a witness.”

2In this case, the complainant was able to establish that he had received a summons from another complainant, Fred Berenbaum, to attend a hearing scheduled on September 23, 2010.

In light of these facts, it was agreed that the complainant was entitled to choose one of the options expressly provided by section 44 of the Management Board of Cabinet Compensation Directive last revised on February 18, 2010. It was also agreed that the Public Service Grievance Board would retain jurisdiction to deal with any difficulties that might arise from the complainant’s exercise of this agreed upon entitlement.

3The complainant, however, argued for a much more expanded entitlement than that provided by section 44. He argued that the employer should treat all employees of the Ontario Public Service in the same manner as to their attendance at hearings before the Public Service Grievance Board regardless of whether they attend on behalf of the employer or on behalf of the complainant. According to the complainant, since the representatives and advisors acting for the employer were being paid when they attended the proceedings of the Public Service Grievance Board, it was only fair that the representatives and advisors of a complainant and any witnesses not under subpoena also be paid in order to ensure a fair process.

4Given the fact that the complainant is entitled to choose one of the options provided by section 44 and will have suffered no loss as the result of his attendance at the September 23 hearing, this larger issue is technically moot. However, to provide guidance to the parties in the future, the Board will deal the complainant’s arguments.

5The principle that the parties are primarily responsible for their own costs is a fundamental component of the processes of the Public Service Grievance Board. This principle is not generally regarded as being inconsistent with due process. In essence the complainant in this case is arguing that the employer should underwrite some of a complainant’s costs by providing the same financial treatment to employees acting as representatives, advisors, or witnesses not under subpoena as provided to those employees assisting the employer at the Board. This argument is not consistent with the principle that the parties to the Board’s proceedings are primarily responsible for their own costs. Moreover, it ignores the reality that those employees acting for the employer are doing so as part of their job while those acting for a complainant are not doing so as part of their job. In no way can it be said that this latter group is being penalized, as the complainant argued, since when they are assisting a complainant before the Board they are not working for the employer and should have no expectation of payment just as they should have no expectation of payment when performing any other activity that falls outside the scope of their employment.

6Furthermore, the complainant’s evidence fell short of proving any express policy or consistent practice that would establish that the sort of payment he argued for constituted a term or condition of employment. Accordingly, the Board holds that there is no obligation on the employer to remunerate employees who participate in the Board processes on behalf of a complainant other than what is expressly provided for by section 44 of the Compensation Directive.