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HomeMy WebLinkAboutP-2003-1986.Cartwright.05-03-18 Decision Public Service Commission des ~~ Grievance Board griefs de la fonction publique Bureau 600 ~-,... Suite 600 Ontario 180 Dundas SI. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 P-2003-1986 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Robert Joseph Cartwnght Grievor - and - The Crown In RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE Kathleen G O'NeIl Vice-Chair FOR THE GRIEVOR Robert Joseph Cartwnght and Richard Camman FOR THE EMPLOYER Sunee1 Bahal Counsel Management Board Secretanat HEARING December 9 2004 WRITTEN January 17 2005 SUBMISSIONS 2 DeCISIon ThIS deCISIOn deals wIth the prelImInary obJectIOn of the employer to the effect that the gnevance before me IS not arbItrable, as the gnevor IS a member of the OPSEU bargaInIng umt, and thus InelIgIble to gneve the demal of a managenal postIng before the PublIc ServIce Gnevance Board (PSGB) The gnevor asserts that the PSGB should take JunsdIctIOn, otherwIse, there would be a wrong wIthout a remedy The gnevor was an actIng OperatIOnal Manager when he applIed for a number of postIngs In February 2002 He was told that he was not elIgIble because he was not In a Job-threatened posItIOn. Later the vacanCIes were reposted, WIth the same competItIOn number but a wIder search area. As he dId not re-submIt hIS applIcatIOn, It was not consIdered, leadIng hIm to gneve It IS not dIsputed that he remaIned a member of the OPSEU bargaInIng umt at the tIme Counsel for the employer argues that the PSGB has no JunsdIctIOn as the gnevor falls Into one of the categones set out In SectIOn 31 of RegulatIOn 977 to The Public Service Act, whIch reads as follows 31 (1) The folloWIng persons are not elIgIble to file a gnevance under thIS Part 1 A person wIthIn a umt of employees establIshed for collectIve bargaInIng under the Crown Emplovees Collective Bargaining Act, 1993 2 A member of the Ontano ProvIncIal PolIce who IS a cadet, probatIOnary constable, constable, corporal, sergeant, staff sergeant, detectIve-sergeant or traffic sergeant. 3 A term classIfied employee Counsel notes that the gnevor's nghts are set out In the collectIve agreement between OPSEU and the Crown In effect at the tIme, specIfically ArtIcle 8 5.2, whIch reads as follows 3 Where an employee IS temporanly assIgned to a non-bargaInIng umt posItIOn, he or she shall contInue to pay dues to OPSEU and contInue to be covered by the CollectIve Agreement for the entIre term of the temporary assIgnment. Further counsel submIts that the remedy requested IS dIrect assIgnment to the posItIOn, whIch IS WIthIn the exclusIve purvIew of the CIvIl ServIce CommISSIOn. Counsel referred to three earlIer PSGB decIsIOns The first of these was R. Ihasz and the Ministrv of Finance P/0004/0 1 where the Board found that It had no JunsdIctIOn over the gnevance of a bargaInIng umt member who had applIed for a management posItIOn. Secondly there was R. Dileo and the Metropolitan Toronto Convention Centre P/000l/91 where the Board found It dId not have JunsdIctIOn over an employee under the Metropolitan Toronto Convention Centre Act, as he was not appoInted under the Public Service Act. The fact that the gnevor dId not have another forum for hIS complaInt dId not lead the PSGB to assert JunsdIctIOn In that case Finally In Rampersad and the Workers Compensation Board, the Board declIned to hear the dIscharge gnevance of a managenal employee of the Workers' CompensatIOn Board, because he was not appoInted under The Public Service Act On behalf of the gnevor Mr Camman stressed that a venue was needed to hear thIS complaInt. He noted that Mr Cartwnght was not In a temporary or traInIng assIgnment, but an actIng assIgnment, for close to three years, whIch In hIS VIew makes hIm a member of management. Nonetheless, they do agree he was a member of the bargaInIng umt. Facts whIch were noted In support of a findIng that there should be access to the management gnevance procedure Included that hIS pay schedule vacatIOn and overtIme were based on protocols and provIsIOns for managenal employees Further It was submItted that the gnevor should have access to the PSGB because there IS nothIng In the collectIve agreement about management posItIOns In Mr Cartwnght's wntten submIssIOn regardIng the scope of s 31 (1) he submItted that The Crown Emplovees Collective Barszaininsz Act does not apply as It relates to a collectIve agreement, whIch does not apply as he IS lookIng for a management posItIOn. He submItted that If the employer InVItes umon members to advance Into management, as It does, It ImplIes that It does so under the Public Service Act, whIch governs those persons To find otherwIse IS to suggest that a wrong cannot be remedIed. In thIS case there has been a wrong and there must be a remedy Further he wrote that the fact that the competItIOns are run In accordance wIth any 4 rules proves the employer recogmzes that they are bound by the The Public Service Act to conduct a fair scheme He argues that the Intent of the legIslature In creatIng two Acts to cover umon and non-umon employees was to take posItIOns out of the common law system The gnevor IS of the VIew that It would be IllogIcal to have promotIOns Into management fall through the cracks, and states that the enactment of two Acts IS demonstratIve of the fact that the legIslature Intended a person such as the gnevor to be Included under The Public Service Act He submIts that to find otherwIse IS to find a legIslatIve Intent to create an IllogIcal scheme, whIch cannot be Further he IndIcated that OPSEU has advIsed hIm that It cannot proceed on a gnevance because It IS a management posItIOn. Thus the proper avenue of complaInt should be the PSGB In support of the gnevor's argument, reference was made to the Staffing Operating Policy of Management Board Secretanat. ThIS IS a document whIch, by ItS own terms, applIes to umomzed employees when a collectIve agreement IS sIlent, as well as to all employees of the Ontano PublIc ServIce except where noted. GIven the VIew I take of s 31 (1) (1) above It IS not techmcally necessary to comment on the polIcy However In VIew of the arguments made It IS appropnate to note that there are portIOns of the polIcy whIch provIde a basIs for the gnevor's observatIOn that competItIOns for managenal competItIOns are subJect to certaIn rules Nonetheless, and more germane to the Issue now before me, there are other portIOns whIch tend to support management's VIew of the Issue before me For Instance, SectIOn 25 and the defimtIOn of a Temporary AssIgnment (pp 10 and 24 of the June 1 2000 verSIOn before me) are worded so that the term temporary assIgnments Includes actIng assIgnments When read together wIth the collectIve agreement provIsIOns, thIS tends to counter the gnevor's posItIOn that, gIven the length of tIme he was actIng, he should be consIdered outsIde of the provIsIOns of the collectIve agreement related to temporary assIgnments Further the polIcy provIdes that the terms and condItIOns concernIng temporary assIgnments should Include confirmatIOn that the employee's nghts and entItlements flow from the last permanent, classIfied posItIOn the employee held before the temporary assIgnment. That would support the employer's posItIOn that the collectIve agreement contInues to apply despIte the gnevor's lengthy penod as an actIng manager In any event, my task IS the narrow one of determInIng whether the PSGB has the authonty to hear thIS matter In my VIew the key element for that determInatIOn IS the partIes' mutual 5 acceptance of the fact that the gnevor was a member of the bargaInIng umt at the tIme he gneved. In thIS regard the statutory exclusIOn set out In s 31(1) (1) above IS clear The gnevor holds the VIew that he ought not to be covered by The CroYf,n Emplovees Collective Barszaininsz Act, 1993 (CECBA) In hIS purSUIt of a managenal Job However thIS does not change the fact that the OPSEU bargaInIng umt of whIch he IS a part was establIshed for collectIve bargaInIng under the terms of CECBA. AccordIngly he IS not elIgIble to gneve under the above-noted sectIOn of the Public Service Act Without a valId gnevance under that part, the PSGB has no JunsdIctIOn to adJudIcate I have carefully consIdered all the submIssIOns put forward, but they do not change thIngs so that that the statutory exclusIOn somehow does not apply to the gnevor The gnevor feels that It would be IllogIcal to have a scheme where members of the bargaInIng umt In actIng posItIOns are not allowed to gneve when dIssatIsfied wIth the managenal selectIOn process, and that It cannot have been Intended that such a gnevance fall through the cracks Although an adJudIcator should always attempt to Interpret statutes, polIcIes and contractual provIsIOns so as to aVOId absurd results, It IS not my VIew that It IS eVIdent that the legIslature's chOIce IS In that category SImIlarly It IS not ObVIOUS that the eXIstence of two statutes should authonze the PSGB to read In an IntentIOn that actIng managers should have access to the managenal gnevance process Rather the statute has drawn a clear lIne whIch prevents the PSGB from heanng gnevances from employees fallIng wIthIn a bargaInIng umt. The gnevor's nght to dIsagree wIth where that lIne has been drawn does not gIve me JunsdIctIOn to hear hIS gnevance, even If there IS no other clear avenue of recourse Further there IS no sufficIent basIs for me to find that there IS some ImplIed applIcatIOn of The Public Service Act when management awards an actIng assIgnment In the management ranks to a bargaInIng umt employee Even explIcIt agreements can be declared vOId If they conflIct WIth a statutory provIsIOn, It IS even more dIfficult to enVISIOn an ImplIcatIOn whIch could dIslodge the applIcatIOn of the statutory exclusIOn here Although the gnevor's desIre for a venue to air hIS dIssatIsfactIOn wIth the selectIOn process for the management posItIOns In questIOn IS understandable, It cannot create JunsdIctIOn where there IS none The PSGB IS a creature of statute, and has no power to adJudIcate a gnevance from a category of person excluded by that statute 6 For the above-noted reasons, the gnevance IS dIsmIssed. Dated at Toronto thIS 18th day of March, 2005