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Home My WebLink AboutP-2004-2316.Greg Ireland.06-08-01 Decision Public Service Commission des Nj Grievance Board griefs de la fonction publique Bureau 600 ~ Suite 600 Ontario 180 Dundas Sl. 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-2004-2316 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Greg Ireland Grievor - and - The Crown III RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE Kathleen G O'NeIl Vice-Chair FOR THE GRIEVOR Greg Ireland FOR THE EMPLOYER Sean Kearney Semor Counsel Mimstry of Government ServIces HEARING July 12, 2006 2 DeCISIon ThIS deCISIOn deals wIth the employer's prelImInary ObjectIOns to the gnevance filed by Mr Greg Ireland, whIch claims that the rules relatIng to promotIOnal Increases have been Incorrectly applIed to hIm The employer asks that the matter be dIsmIssed wIthout a heanng on the ments on three separate grounds that the gnevance was untImely that the Board has no JunsdIctIOn to hear the matter as the gnevor was, at the tIme of the gnevance filed on August 3 2004 and ever SInce, a member of the AdmInIstratIve and ProfessIOnal Crown Employees of Ontano (AMAPCEO) rather than a manager WIth a nght to bnng a gnevance to the PublIc ServIce Gnevance Board (PSGB) and that there IS no prima facie case Although the gnevor's claim anses out of a penod when hIS home pOSItIOn was that of an operatIOnal manager It IS common ground that he was not In that pOSItIOn when he gneved. In November 2000 he had been successful In a competItIOn for a pOSItIOn at the Bell Cairn Staff TraInIng and Development Centre and commenced a two-year secondment, actIng In the classIficatIOn APL 17 whIch falls Into the AMAPCEO bargaInIng umt. At that tIme he receIved a 3% promotIOnal Increase In March 2002 for the duratIOn of the OPSEU stnke, he worked as an OperatIOnal Manager at the HamIlton-Wentworth DetentIOn Centre and was ImtIally paid at the top rate for an OM 16 However that was later changed retroactIvely to hIS applIcable APL17 rate On February 4 2003 he was dIrectly aSSIgned to the APL17 pOSItIOn, on a permanent baSIS, and has receIved AMAPCEO Increases sInce, as he had SInce 2001 On March 11 2003 an Order-In-CouncIl authonzed a 5% Increase to the OM 16 classIficatIOn retroactIve to Apnl 1 2002 The gnevor claims the benefit of that Increase, whIch he says, together WIth other Increases to whIch he was entItled, would have taken hIm to the top rate as an APL 17 two 3 years sooner He reached that top rate In November 2005 but belIeves he should have been there In November 2003 He has been advIsed by AMAPCEO that they cannot deal wIth the dIspute, as It arose out of the tIme he was In a managenal job The gnevor IS concerned that despIte hIS extensIve expenence, others promoted later than he was wIll be paid more on theIr first day of work than he would receIve after beIng an APL17 for two and a half years He has 19 years wIth the Mimstry havIng worked at several InstItutIOns, on the floor and as an OperatIOnal Manager At the tIme of the gnevance he was the ProVInCIal CoordInator Use of Force Program, at Bell Cairn. He submItted that he was seekIng to be treated fairly In regards to the applIcatIOn of the rules to hIS pay Increases, In lIght of hIS expenence and dedIcatIOn. * * * The most fundamental of the employer's ObjectIOns relates to the fact that the gnevor was a member of the AMAPCEO bargaInIng umt when he filed the gnevance In argUIng that thIS fact means that the Board has no jUnSdIctIOn, employer counsel submIts that a gnevor has to be a manager at the tIme that they gneve SectIOn 31 of RegulatIOn 977 to The Public Service Act 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 Emvlovees Collective Barszaininsz 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 4 The gnevor does not dIspute the fact that the AMAPCEO bargaInIng umt Into whIch hIS classIficatIOn falls IS a "umt of employees establIshed for collectIve bargaInIng under the Crown Emvloyees Collective Barszaininsz Act, 1993" SInce the gnevor IS a person WIthIn such a bargaInIng umt, by straightforward applIcatIOn of Paragraph 1 of sectIOn 31(1) above the gnevor IS not elIgIble to file a gnevance under the regulatIOn. As a result, he does not have a gnevance whIch can be brought to the PSGB for a heanng under s 36(1) of RegulatIOn 977 AccordIngly the Board IS not In a posItIOn to deal wIth the dIspute and It must be dIsmIssed. Nor IS the Board In a posItIOn to deal wIth the gnevor's concern that such a decIsIOn wIll leave hIm wIth no recourse, as the language of the regulatIOn IS clear that he IS not elIgIble to file a gnevance over whIch It has jUnSdIctIOn. For somewhat sImIlar sItuatIOns, see OPSEU (CartJ+right et al.) and the Ministry of Community Safety and Correctional Services (Abramsky) GSB#2002-1457 et. al a decIsIOn of the Gnevance Settlement Board and Cartwright and Ministry of Community Safety and Correctional Services PSGB # P-2003-1986 (O'NeIl), a decIsIOn of thIS Board, and the cases cIted thereIn. In the result, It IS not necessary to deal wIth the employer's other ObjectIOns, based on tImelIness and the argument that there IS no prima facie case on the basIs that the gnevor IS askIng to be paid Increases based on the terms and condItIOns of employment of a classIficatIOn other than the one he was workIng In at all relevant tImes SImIlarly I am unable to deal wIth the ments of the gnevor's arguments, whIch Included hIS submIsSIOn that the Mimstry's approach showed an absence of good faith In the sense of behavIOur that IS ethIcally correct and In accordance wIth the correct rules of law and a submIsSIOn that he Improperly lost out on the opportumty to decIde whether to return from hIS 5 actIng posItIOn In lIght of the retroactIvely Increased OM16 wage gnd. The gnevor noted that, at the tIme he took the permanent APL 17 posItIOn, a month before the Order-In-CouncIl came down, he dId not know there would be a retroactIve Increase He submItted that he was accordIngly not In a posItIOn to accurately compare the terms and condItIOns of the two jobs before he deCIded to take the AMAPCEO posItIOn on a permanent basIs It IS also appropnate to note that, as requested, after the heanng, employer counsel proVIded the Board wIth a copy of the Order-In-CouncIl to whIch the gnevor referred at the heanng. Counsel also made bnef wntten submISSIOns to the effect that the gnevor would not, on the face of the Order-In-CouncIl and related documents, have been entItled to the relIef he was seekIng, In any event, as the he dId not meet the necessary condItIOns Had the Board deCIded that It had jUnSdIctIOn, the gnevor would have been gIven an opportumty to respond to those submISSIOns However It was not necessary to afford the gnevor that opportumty as the deCISIOn to dIsmISS the gnevance IS not based on the proVISIOns of the Order-In-CouncIl or the submISSIOns made by counsel In hIS covenng letter Rather It IS based on the fact that the Board has found that the gnevor was not elIgIble to file thIS gnevance, and that It IS accordIngly not In a pOSItIOn to entertaIn the matter at all In the result, for the reasons set out above, the gnevance IS dIsmIssed. Dated at Toronto thIS 1 st day of August, 2006