PSGB#2016-0184

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Terry J. Kutchaw

Complainant

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Kathleen G. O’Neil

Chair

FOR THE COMPLAINANT

Terry J. Kutchaw

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel

SUBMISSIONS

October 13, 2016

Decision

1This decision deals with the complaint of Terry J. Kutchaw relating to his claim that he is being incorrectly paid 8%, rather than 14% in lieu of benefits. The employer has raised the preliminary objection to the Board’s jurisdiction that Mr. Kutchaw was a fixed term part-time employee at all times material to this complaint, and prevented by regulation from filing a complaint with this Board. In the alternative, the employer argues there is no viable case for the remedy claimed, in that the 14% in lieu of benefits claimed is not a term and condition of employment applicable to part-time fixed term employees.

2The facts necessary to this decision are not in dispute. Mr. Kutchaw worked for the Ministry from 1978 until his retirement on January 31, 2013. Later that year, he was rehired as a fixed term part-time management employee on December 5, 2013. In his complaint, Mr. Kutchaw states that bargaining unit full-time employees receive 14% in lieu of benefits, and claims that he should be receiving the same amount, rather than the 8% he is currently receiving.

3The employer’s motion to dismiss is based on section 5(2) (5) of Regulation 378/07 under the Public Service of Ontario Act (PSOA), which sets out the categories of people who may and may not file a complaint to the PSGB. It reads in relevant part as follows:

Eligibility to File a Complaint

5. (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:

6. He or she was employed for a fixed term for fewer than 14 hours per week, employed for a fixed term for fewer than nine full days in four consecutive weeks or employed for a fixed term on an irregular or on-call basis.

4The employer’s argument is that since Mr. Kutchaw was a fixed term part-time irregularly scheduled management employee at all times following his re-hire in December 2013, he is ineligible to complain to the PSGB. Employer counsel further notes that the PSGB has ruled on this subsection in the recent decision of MacKinnon v. MCSCS, P-2015-2662, dated September 20, 2016, reported at 2016 CanLII 68794 (ON PSGB). In that decision, based on the fact that the complainant was an irregularly scheduled fixed-term employee, the Board found that it did not have jurisdiction to hear the complaint.

5Mr. Kutchaw does not dispute that he was a fixed term part-time employee employed on an irregular or on-call basis, and the documentation filed by the employer supports that fact. Rather, in response to the employer’s motion to dismiss, Mr. Kutchaw asked the Board to allow the complaint to continue, and states that the Board does have jurisdiction to hear his complaint. In support of this submission, he refers to the Board’s decision in Hugh MacDonald et al. v. MCSCS, P-2012-4718, dated November 7, 2014, reported as 2014 CanLII 76836 (ON PSGB), in which the Board entertained arguments in regards to fixed term employees. Further, he notes that in that case, the employer referred the board to a directive regarding fixed term excluded employees, which authorized compensation in lieu of holidays, vacation pay and group insurance of a total of 14% of their wages. As well, Mr. Kutchaw states that it is his belief that based on the Directives referred to in section 32 of PSOA regarding fixed term excluded employees that he is entitled to the compensation he is claiming.

6Having carefully reviewed the parties’ submissions, the Board finds that it does not have jurisdiction to hear Mr. Kutchaw’s complaint. Although he is correct that s. 32 of PSOA authorizes the hiring of fixed term employees, it does not specify their grievance rights, or their specific terms and conditions of employment. As the Board found in the MacKinnon decision, cited above, the regulation is clear that employees who are irregular fixed term employees are not entitled to bring a complaint to this Board. The Board only has the powers granted by the statute, so that it simply does not have the authority to hear the complaint.

7Although the regulation is a bar to the Board’s hearing this complaint, it is appropriate to address Mr. Kutchaw’s other points. He is correct that in the MacDonald decision, cited above, there is a discussion about fixed term employees. However, the complaint itself was not brought by fixed term employees, but by full-time managers seeking the same percentage in lieu of benefits as retired managers who had been rehired. As employer counsel submitted in reply, the reference in paragraph 9 of the MacDonald decision was part of the employer’s defense against the allegations in the complaint in that case that payments in lieu of benefits had not been properly authorized and were therefore illegal. Counsel further observes that the language in paragraph 9 of the MacDonald decision simply sets out the employer's submission that the Compensation Directive authorizes payments in lieu of benefits up to 14%. Further, those payments are only applicable to full-time fixed term management employees and thus, they are not a basis on which the PSGB would have been able to award Mr. Kutchaw 14% in lieu of benefits, even if it had jurisdiction to hear this complaint. As employer counsel notes, the Board did not need to delve into distinguishing between full-time and part-time fixed term managers in the MacDonald decision because that was not part of the issues in dispute in that case.

8For the reasons set out above, the employer’s motion to dismiss this complaint is granted, as the Board does not have jurisdiction to hear it. Further, the complainant did not identify a term or condition of his employment that entitled him to 14% in lieu of benefits as an irregularly scheduled part-time fixed term manager, in any event.