HomeMy WebLinkAboutP-1997-0001.VanBiesbrouck.00-06-29 Decision
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PSGB # P/000l/97
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
R Lee Van BIesbrouck
GIievor
- and -
The Crown m Right of Ontano
(Mimstn of EnvIronment & Energy )
Employer
BEFORE Ken Petn'shen Vice ChaIr
FOR THE Lam Robbms
GRIEVOR Labour Consultant
FOR THE Yasmeena Mohamed
EMPLOYER Counsel, Legal SerVIces Branch
Management Board Secretanat
HEARING March 14 2000
2
DECISION
In a gnevance dated January 29 1992, Mr Van BIesbrouck claims that he was
not properly classIfied, By letter dated March 20 1997 he requested that the PublIc
ServIce Gnevance Board ("PSGB") hear hIS gnevance The Employer has taken the
posItIOn that the PSGB does not have jUnSdIctIOn to hear thIS gnevance ThIS matter
came on before me for a determInatIOn of whether the PSGB has jUnSdIctIOn to hear Mr
Van BIesbrouck's gnevance The partIes had argued thIS Issue prevIOusly before another
Vice Chair but for reasons not relevant here, another heanng was reqUIred,
Each party filed a number of exhibIts wIth the Board, The partIes also filed a
statement of agreed facts upon whIch they were prepared to argue the jUnSdIctIOnalIssue
Those agreed facts are as follows
1 Mr Van BIesbrouck has been a cIvIl servant WIth Government
ofOntano SInce January 14 1971
2 He IS a ProfessIOnal EngIneer certIfied wIth the APEO
3 In 1985 he was appoInted as a DIstnct EngIneer In the Mimstry
of EnvIronment In the HamIlton DIstnct Office and was classIfied
as a PEN 16 (now PBE6)
4 In August, 1986 he was transferred to the posItIOn of Area
SupervIsor In the Ottawa Office and was classIfied as PEN 17
(now PBE 7)
5 In January 1989 he applIed for and receIved the posItIOn of
Area SupervIsor SpecIalIst WIth the Abatement Office In the
HaldImand Norfolk Brant DIstnct Office (headquartered In
HamIlton) At thIS pOInt he became classIfied as a PRP 18
whIch at that tIme was at the same rate of pay as the PEN 18
3
claSSIficatIOn,
6 In the fall of 1989 there was a reorgamzatIOn In the RegIOn,
the HaldImand Norfolk Brant Office was elImInated and
amalgamated wIth the HamIlton Office Mr Van BIesbrouck
remaIned as an Area SupervIsor SpecIalIst In the HamIlton
Office wIth the same Job DescnptIOn, His classIficatIOn
remaIned unchanged,
7 In August, 1991 there was an arbItratIOn award for engIneers
and archItects represented by PEGO whIch led to sIgmficant
Increases In theIr salanes,
8 As a PRP 18 there IS no dIspute that Mr Van BIesbrouck dId
not benefit from those Increases, and therefore at that tIme
hIS salary rate fell below that of the PEN 18 classIficatIOn,
The History of the Gnevance
9 On January 29 1992, Mr Van BIesbrouck first gneved hIS
classIficatIOn and requested that hIS classIficatIOn be changed
to PEN 18 (now PBE 8) and that he receIve full retroactIvIty
back to January 1990 (See Attachment 1)
10 On May 13 1992, Mr Hardy Wong responded to the gnevance
and IndIcated that the posItIOn was properly classIfied as PRP
18 (See Attachment 2)
11 On May 28 1992, Mr Van BIesbrouck requested that hIS
gnevance be submItted to the Deputy Mimster for
InVestIgatIOn, (See Attachment 3)
12 On June 11 1992, Mr Hardy Wong responded and IndIcated
that the gnevance should be properly filed wIth Mr John
V ogt, hIS Immediate supervIsor (See Attachment 4 )
13 On June 25 1992, Mr V 081 forwarded the gnevance to the
Deputy Mimster for InVestIgatIOn, (See Attachment 5)
14 On August 17 1992, the Deputy Mimster Mr Richard DIcernI,
responded and demed the gnevance (See Attachment 6)
15 On August 25 1992, Mr Van BIesbrouck forwarded hIS
gnevance to Ms Glenna Carr the Chairperson of the CIvIl
ServIce CommISSIOn In accordance wIth SectIOn 57(3) of
RegulatIOn 881 ofPSA (See Attachment 7)
4
16 On September 15 1992, Mr Van BIesbrouck was advIsed
by the chairperson of the C S C that hIS gnevance had been
transferred to the ClassIficatIOn RatIng CommIttee (See
Attachment 8)
17 On Apnl 27 1993 Mr Van BIesbrouck receIved a notIce of
heanng scheduled for May 3 1993 (See Attachment 9)
18 On Apnl 30 1993 Mr Van BIesbrouck and the Employer
agreed to have the heanng adj ourned and requested In
wntIng that the ClassIficatIOn RatIng CommIttee assIgn a
new heanng date for the gnevance (See Attachment 10)
19 In fact, the ClassIficatIOn RatIng CommIttee dId not assIgn a
new heanng date Mr Van BIesbrouck InqUIred about the
status of hIS gnevance on Apn112, 1995 and receIved no
response (See Attachment 11)
20 On March 20 1997 Mr Van BIesbrouck wrote to the PublIc
ServIce Gnevance Board and requested that hIS gnevance be
heard by that body as the ClassIficatIOn RatIng CommIttee
had been abolIshed, (See Attachment 12) The PSGB then
set a heanng for June 27 1997
Subsequent Changes In Mr, Van BIesbrouck's ClassIficatIOn
21 In May 1993 Mr Van BIesbrouck became an ActIng
DIstnct Manager wIth a classIficatIOn of PRP 20
22 In January 1994 he was returned to hIS posItIOn of Area
SupervIsor SpecIalIst classIfied at PRP 18
23 In May 1994 he became an ActIng ChIef of Approvals and
Planmng classIfied as a PBE 8
24 In May 1995 he applIed for and was the successful applIcant
for a posItIOn of EnvIronmental Approvals EngIneer stIll
workIng out of the HamIlton Office, and classIfied as a PBE 7
The start date of thIS posItIOn was May 29 1995
The Issue
25 It IS Mr Van BIesbrouck's posItIOn that dunng the penod when
he was classIfied as a PRP 18 he was clearly performIng
engIneenng dutIes for the Mimstry at the level of PEN 18
5
(now PBE 8)
26 In addItIOn, several other Area SupervIsor SpecIalIsts In the
Mimstry were performIng sImIlar work and classIfied as PEN
18's ThIS Included the Ottawa Office where Mr Van
BIesbrouck had worked from 1986 untIl 1989
27 A copy of Mr Van BIesbrouck's PosItIOn SpecIficatIOn IS
enclosed as Attachment 13 ThIS document accurately
reflected the dutIes he performed, It also reqUIred
certIficatIOn as a ProfessIOnal EngIneer as part of the
qualIficatIOn cntena for the posItIOn,
28 WhIle the Mimstry IndIcated that It had rewntten the job
specIficatIOn, no such updated descnptIOn was ever
officIally Implemented to hIS knowledge, and Attachment 13
IS the only officIal PosItIOn SpecIficatIOn In eXIstence
29 Mr Van BIesbrouck was one of the maIn advIsors at the
HagersvIlle tIre fire, and provIded expert engIneenng
testImony on behalf of the Government. Other examples
of the engIneenng work whIch he performed dunng the
relevant penod Included the DecommIssIOmng at
InternatIOnal Minerals Corp near DunnvIlle, and hIS role
as Project Manager at a number of contamInated sItes
30 Mr Van BIesbrouck IS seekIng by way of remedy that hIS
classIficatIOn be adjusted to that of PEN 18 retroactIve
to January 1 1990 for the entIre penod that he was
Incorrectly classIfied as a PRP 18 and that he be compensated
for all lost salary and benefits IncludIng Interest.
31 WhIle there IS no dIspute over Mr Van BIesbrouck's subsequent
classIficatIOns, there wIll be salary adjustments whIch would
flow through to hIm as a result of the adjustment of hIS salary
From 1990 to 1993 and such adjustments are part of the
CompensatIOn to whIch he IS entItled,
The facts whIch are of relevance to the jUnSdIctIOnalIssue can be summanzed as
follows On August 25 1992, Mr Van BIesbrouck forwarded hIS classIficatIOn gnevance
to the Chair of the CIvIl ServIce CommISSIOn and on September 15 1992, he was advIsed
that hIS gnevance had been referred to the ClassIficatIOn RatIng CommIttee ("CRC")
6
The gnevance was scheduled to be heard on May 3 1993 but the partIes agreed to
adjourn that heanng date and no new date was scheduled, Mr Van BIesbrouck requested
that the PSGB hear hIS gnevance because the CRC had been abolIshed,
RegulatIOn 977 under the PublIc ServIce Act (" the RegulatIOn") provIdes the
nght to gneve to certaIn persons In the publIc servIce Part 5 of the RegulatIOn prescnbes
the subject matter of a gnevance and sets out a procedure for proceSSIng gnevances
When Mr Van BIesbrouck filed hIS gnevance, the RegulatIOn created a dIstInctIOn
between classIficatIOn and other types of gnevances SectIOn 44 of the RegulatIOn
provIded that persons may file a gnevance In respect of "workIng condItIOns or terms of
employment" If the gnevance was not a classIficatIOn gnevance, a procedure was set
out whIch ultImately led to a heanng before and a determInatIOn by the PSGB A
classIficatIOn gnevance was governed by sectIOn 51 of the RegulatIOn and It provIded
that classIficatIOn gnevances would ultImately be resolved by the CRC
As noted earlIer Mr Van BIesbrouck's gnevance had been referred to the CRC In
September 1992 Subsequent to the filIng of the gnevance, the RegulatIOn has been
amended tWIce In late 1994 the RegulatIOn was amended to reflect the provIsIOns of the
Social Contract Act. The focus of the amendments was on sectIOn 51 the sectIOn whIch
dealt wIth classIficatIOn gnevances The effect of the amendments was to prevent the
CRC from heanng and decIdIng classIficatIOn gnevances SubsectIOn 5 1 provIded that
the CRC could not hear a gnevance that was referred to It before Apnl 1 1996
SubsectIOn 8 provIded that the CRC could not decIde a gnevance wIth respect to all or
any part of the socIal contract penod, SubsectIOn 9 provIded that the CRC was precluded
7
from decIdIng a claSSIficatIOn gnevance referred to It after March 31 1993 and before
Apnl 1 1996 If It had not rendered a decIsIOn on the gnevance before December 16
1994 One can readIly see from these provIsIOns why Mr Van BIesbrouck's gnevance
dId not receIve any attentIOn dunng the socIal contract penod,
The RegulatIOn was agaIn amended In 1996 As a result of the 1996 amendments
SectIOn 31(4) provIdes that "no gnevance shall Include the complaInt that a posItIOn
should be classIfied or IS In the wrong classIficatIOn" With the elImInatIOn of
classIficatIOn gnevances, there IS no reference In the RegulatIOn to the CRC The 1996
amendments provIde that Part 5 as It reads before the amendments became effectIve,
contInues to apply to a gnevance referred to the CRC before Apnll 1993 When Mr
Van BIesbrouck requested that the PSGB hear hIS gnevance, the nght to gneve
classIficatIOn gnevances had been elImInated and the CRC no longer eXIsted,
Counsel for the Employer referred me to a number of decIsIOns of the PSGB
whIch determIned that the PSGB dId not have jUnSdIctIOn to hear and decIde
classIficatIOn gnevances, and that the appropnate forum for such gnevances was the
CRC These cases arose at a tIme when the CRC was stIll In eXIstence
In the course of theIr submISSIOns, counsel revIewed In detaIl the RegulatIOn as It
was framed when Mr Van BIesbrouck filed hIS gnevance and the changes to the
RegulatIOn resultIng from the two amendments TheIr submIssIOns, whIch were conCIse
and thoughtful, can be summanzed as follows Mr RobbIns maIntaIned that the
8
amendments to the RegulatIOn dId not have the effect of extInguIshIng Mr Van
BIesbrouck's gnevance GIven the fact that Mr Van BIesbrouck contInues to have a
valId gnevance, Mr RobbIns argued that It should be heard and that the only forum
avaIlable to hear the gnevance IS the PSGB Mr RobbIns dIstInguIshed those cases
whIch found that the PSGB dId not have jUnSdIctIOn to entertaIn classIficatIOn gnevances
on the basIs that they were decIded when the CRC eXIsted, whIch IS no longer the case
Mr RobbIns referred to the liberal and broad InterpretatIOn the PSGB has gIven to the
words "workIng condItIOns or terms of employment" and argued that the PSGB has the
jUnSdIctIOn to decIde Mr Van BIesbrouck's gnevance Counsel for the Employer
submItted that the PSGB has never had the jUnSdIctIOn to entertaIn classIficatIOn
gnevances and that It has not been gIven the jUnSdIctIOn to decIde such gnevances
subsequent to the dIsmantlIng of the CRC
After consIdenng the submIssIOns of counsel, It IS my conclusIOn that the
Employer's posItIOn IS correct In law From the tIme In 1992 when Mr Van BIesbrouck
filed hIS gnevance untIl the effectIve date of the current RegulatIOn, the PSGB dId not
have jUnSdIctIOn to hear and decIde classIficatIOn gnevances That jUnSdIctIOn resIded
wIth the CRC However lIberally the PSGB Interpreted the words "workmg condItIOns or
terms of employment" classIficatIOn gnevances were not WIthIn ItS jUnSdIctIOn, Under
the current RegulatIOn, a classIficatIOn gnevance cannot be filed, The words "a workIng
condItIOn or term of hIS or her employment" cannot encompass a complaInt about
classIficatIOn, Even though the CRC no longer eXIsts, the PSGB cannot decIde a
classIficatIOn gnevance because classIficatIOn gnevances are not permItted, From the
9
tIme Mr Van BIesbrouck filed hIS claSSIficatIOn gnevance to the present, the PSGB has
not been provIded wIth the authonty to hear and decIde classIficatIOn gnevances
Tribunals such as the PSGB are creatures of statute or regulatIOn and theIr
jUnSdIctIOn IS set out In the statute or the regulatIOn, UntIl the current RegulatIOn, the
jUnSdIctIOn to decIde classIficatIOn gnevances resIded In the CRC With the abolItIOn of
the CRC the jUnSdIctIOn to decIde classIficatIOn gnevances was not gIven to the PSSB
As noted above, the nght to gneve classIficatIOn Issues no longer eXIsts The fact that the
PSGB IS the only tnbunal under the RegulatIOn does not In Itself lead to the conclusIOn
that It has jUnSdIctIOn to entertaIn Mr Van BIesbrouck's gnevance
For the foregoIng reasons, It IS my conclusIOn that the PSGB does not have the
jUnSdIctIOn to hear and decIde Mr Van BIesbrouck's gnevance
Dated at Toronto thIS 29th day of June, 2000
"
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Ken Petryshen - Vice-Chair