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HomeMy WebLinkAboutP-2002-0003.Chyczij.06-07-04 Decision Public Service Commission des Grievance Board griefs de la fonction publique Bureau 600 Suite 600 180, rue Dundas Ouest 180 Dundas St. West Toronto (Ontario) M5G 1Z8 Toronto, Ontario M5G 1Z8 Tél. : (416) 326-1388 Tel. (416) 326-1388 Téléc. : (416) 326-1396 Fax (416) 326-1396 P-2002-0003 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Grievor Ron Chyczij - and - The Crown in Right of Ontario (Ministry of Labour) Employer BEFORE Vice-Chair Kathleen G. O’Neil 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. 2 Interim Decision This decision deals with the employer’s prelimin ary objection to the effect that the Board has no jurisdiction to hear the grievan ce filed by Ron Chyczij, a Review Officer with the Pay Equity Commission, which claims he was improperly denied tuition assist ance. The employer asserts that the grievance does not allege the violation of a right, commi tment or promise to pay which forms part of the grievor’s terms and condi tions 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 grie vor 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: 34. (1) A person described in subsec tion (2) who is aggrieved about a working condition or term of his or her em ployment may file a grievance with his or her deputy within 14 da ys 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 ou t 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 co ntour of a grievance: it must be about “a working condition or term of his employment”. Section 36(1) of the sa me regulation provides that a grievor who is not satisfied with the decision of the deputy minist er 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 quest ion 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 be nefit of which has been denied to him for improper reasons. 3 Although the particulars filed by the grievor are rather wide-r anging, 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 author ize tuition assistance, as follows: 24. Where a deputy minister is of the opi nion that participation in a staff development program that is not conduc ted by a ministry or by the Commission and does not require absence from employm ent will provide a civil servant with skills or knowledge of value to the p ublic service, the deputy minister may authorize payment by the ministry of an am ount equal to all or part of the tuition fees and all or part of the expenses sp ecified 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 pract ice and policy, that discretion has been delegated to local management. Further, he alleges that in practi ce, 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 a ssistance, but not to him, on an arbitrary basis. He also alleges that there are a number of manda tory personnel directives and policies as to fostering learning and sta ff development which have not been complied with in this respect. He specifically alleges that he was denied the tuitio n assistance he requested for reasons related in part to his participation in grievance and othe r proceedings involving the employer, as well as other factors, such as personal dislike, which he considers arbitrary, disc riminatory or in bad faith. The grievor refers to vari ous cases in the Board’s jurispr udence 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 “inte nded 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, unfai r, inequitable, or unreasonable. 4 The grievor maintains that his gr ievance 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 require d to manage its discretionary programs in an equitable manner, such as the absenteeism pr ogram considered by the Grievance Settlement Board in OPSEU and The Crown in Right of Ontari o (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 canno t point to a discrete provision that obligates the employer to pay tuition assistance, at all, or in the grievor’s specific circum stances. Basically, the employer does not agree that the combination of circumst ances, law and policy outl ined by the grievor is sufficient to amount to a working condition or te rm of employment that has been breached. Counsel argues that the grievor is asking the Board to conduct a ge neral review of discretionary management decision-making that is not attached to a contractual right of the grievor’s. Counsel referred to a variety of cas e 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 Ontari o (Ministry of Corr ectional Services) GSB #1999-1782 et. al (Harris), OPSEU (Lesieur et al.) and The Crown in Ri ght of Ontario (Minis try of Correctional Services) GSB #2002-1756 et. al. (Briggs) I have carefully considered all the submi ssions and documentation before me, and have concluded that the matter should proceed to a h earing 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 th e employer’s commitments in the area of staff development, and whether, in the denial of tuition assistance to th e grievor, they were applied to the grievor in a way that constitutes a breach of a term or cond ition 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 c onsidered 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 5 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 interl ocking directives, policies and pr actices flowing from it, amounts to a working condition or term of his employme nt and whether in the actual circumstances the employer breached any such entitlement. That qu estion 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 pe rsuade 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 aris ing out of the grievance, including the content of any alleged terms or conditions of employment, the breach of which might gi ve rise to a remedy. In the result, it is the Board’s finding that the di spute between the parties falls within the Board’s jurisdiction so that Mr. Chy czij’s grievance may proceed to a hearing on the merits. th Dated at Toronto this 4 day of July, 2006 Kathleen G. O’Neil, Vice-Chair