Public Service Grievance Board

• Author: Timothy Hadwen/David Strang
• Pages: 766-813

766

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Public Service Grievance Board

A. PURPOSE AND FUNCTION

The Public Service Grievance Board (PSGB) allows non-union public

servants in ministries and commission public bodies to require specif‌ic

performance of their employment terms. This ensures the rule of law

within the lower and middle management ranks of the Ontario Public

Service. The terms of employment in the public service are established

by the elected executive either by negotiating collective agreements cov-

ering unionized public servants or by directives and policies covering

non-unionized employees. As a practical matter, the elected executive

cannot directly supervise the administration of the terms it has estab-

lished. Several mechanisms are in place to ensure the terms established

by the government are properly implemented. The ability of unions to

grieve alleged failures under their collective agreements and the ability

of non-union employees to similarly complain to the PSGB continued

by the Public Service of Ontario Act, 2006 (PSOA)1 are important

vehicles for ensuring the elected executive’s decisions and agreements

are properly implemented.

The PSGB was originally created in 1960 when the increase in the

size of government following the Second World War and the increase in

the number and complexity of issues facing the elected executive made

the traditional supervision of the public service by ministers impossible.

At the time the public service was not unionized but the Civil Service

1 SO 2006, c 35, Sch A [PSOA]. For a broader discussion of this point see Chapter 2.

Public Service Grievance Board | 767

Association of Ontario that would become the Ontario Public Service

Employees Union was beginning to assert itself as bargaining agent for

public servants.2 When formal collective bargaining was legislated in

the 1970s and the Grievance Settlement Board (GSB) was created, the

PSGB continued as the dispute settlement vehicle for public servants

excluded from collective bargaining.

Employment relationships, including those of public servants, are

essentially contractual, though the terms of public servants’ contracts

include statutory components and are determined within a statutory

context. The business of the Ontario government depends on a vast

array of contractual relationships of which employment contracts are

a modest part. The courts are the usual place to go to enforce contracts,

but courts do not specif‌ically enforce employment contracts.3 Typically

courts only become involved in enforcement of employment contracts

when the employment is terminated and only damages are in issue. The

PSGB is designed to be the vehicle to provide management and excluded

employees with the assurance that their employment contracts will be

honoured and remedies provided for failures to do so.

The public service does, as a matter of course, comply with legis-

lation, the directions of the elected executive, and its contractual

commitments, but an eective legal system requires some meaningful

avenue of appeal for those who feel they have been treated improperly

or unfairly. The elected executive and the public should be able to look

to a process that examines, exposes, and corrects def‌iciencies in com-

pliance with the terms of employment in the public service.

The public service depends upon the long-term commitment of its

front-line and middle management. Correctional ocers, inspectors,

and other sta need the support of experienced front-line managers

when they are confronted with dicult potentially dangerous situa-

tions. Not providing front-line managers with some of the same job

security and right to enforce their employment terms as they had as a

union member does not encourage people to seek advancement. The

institutional knowledge and expertise of the public service resides to a

large degree with middle management. The loyalty of those employees

to public service is critical to the eectiveness of the public service.

2 See Chapter 7 for the history of OPSEU.

3 Atomic Energy of Canada Ltd v Sheikholeslami, [1998] 3 FC 349 at para 11;

Dunsmuir v New Brunswick, 2008 SCC 9 at para108. See also Chapter 13.

768 | ONTARIO PUBLIC SERVICE EMPLOYMENT AND LABOUR LAW

Ensuring that these managers are treated fairly and are conf‌ident they

will be treated fairly is essential to the purposes of the PSOA.

The PSGB has three broad functions: contractual dispute resolution,

regulation of delegated managerial authority, and protection against

reprisal for acting in compliance with the political activity and disclo-

sure of wrongdoing parts of the PSOA.

When a matter reaches the PSGB for determination on the merits,

the PSGB provides mediation and adjudication in a manner and at

a standard consistent with the GSB, labour boards, and arbitrators.

Indeed, the PSGB draws its members from the same pool of arbitrators

and labour and employment law practitioners. Unfortunately, the PSGB

is not currently permitted to properly f‌ill its role under the PSOA. As

will be discussed below, the lack of a grievance process and short rigid

time limits mean preliminary motions foreclosing adjudication on the

merits are far too numerous. The jurisdiction limiting nature of the

time limits on complaints regarding terms of employment and discipline

circumscribes the PSGB’s ability to provide eective dispute resolution

and review of disciplinary decisions.

The PSGB is intended to redress the imbalance in power between

non-union employees and the employer,4 but it is not a forum for

reviewing the government’s employment policies. Its function is to pro-

vide rulings on personal grievances about the application of the govern-

ment’s policies, not to make policy decisions in the abstract.5

B. JURISDICTION

As a statutory tribunal the PSGB’s jurisdiction is limited to matters over

which it is given authority by legislation.6 Regulation 378/07 gives it

authority over complaints regarding dismissal, discipline, and terms

and conditions of employment made by employees appointed by the

Public Service Commission (PSC) under Part III of the PSOA (employ-

ees in ministries, excluding the minister’s oce, and commission public

bodies) that are not members of a collective bargaining unit.7 The PSGB

4 Morrisonv Ontario (Human Rights Commission), 1997 CanLII 10282 (ON

PSGB) [Morrison].

5 Brown and Ministry of Correctional Services, PSGB#P/0898/80, 25 April 1980 at 15.

6 Kutchaw v Ontario, 2017 CanLII 16731 (ON PSGB) at para 6.

7 O Reg 378/07, s 5(1) subject to exceptions in s 5(2) and, concerning a complaint

about working conditions or terms of employment, the exceptions in s 7(2) dis-

cussed below.