Public Service Grievance Board

• Author: Timothy Hadwen - David Strang - Leonard Marvy - Don Eady
• Profession: Director, Legal Services Branch, Ontario Ministry of Labour - Associate Director, Management Board Secretariat - Solicitor, Ontario Labour Relations Board - Partner, Paliare Roland Rosenberg Rothstein LLP
• Pages: 653-706

 

Public Service Grievance Board

A.PURPOSE AND FUNCTION

e Public Service Act (PSA) provides authority for the Civil Service Commis-

sion (CSC), subject to the approval of Cabinet, to make regulations providing

for a grievance process and prescribing the jurisdiction, powers and duties of a

grievance boa rd, including giving t he board the powers of a commissioner under

Part II of thePublic Inquiries Act (PIA). Regulations are in place establishing

a grievance procedure for most members of the Ontario Public Service (OPS)

who are not represented by Ontario Public Service Employees Union (OPSEU),

Association of Management a nd Administ rative Professional Crown Employees

of Ontario (AMAPCEO), Professional Engineers of the Government of Ontario

(PEGO) or the Ontario Provincial Police Association (OPPA). In the event that

a resolution of a grievance cannot be reached, the grievor may refer the matter

to the Public Ser vice Grievance Sett lement Board (PSGB), also established by the

regulation. e regulations creating the PSGB apply only to public servants so,

with the exception of employees of the Provincial Auditor and the Chief Elec-

tions Ocer who are expressly permitted by the legislation governing those of-

ces to take certain grievances to the PSGB, the PSGB has no jurisdiction to

hear grieva nces of persons who are not public servants , even if they are employed

as Crown employees by agencies designated under the PSA.

e PSGB is part of the administrative apparatus of government. It allows

individual public servants to seek enforcement of their terms and conditions of

R.S.O , c. P. .

PSA, s. ()(r); R.S.O. , c. P..

R.R.O. , O. Reg. , Part V, s. –.

Auditor General Act, R .S.O. , c. A., s. ; Election Act, R .S.O. , c. E., s. .

See section F(), below at .



       

employment and decisions to terminate or suspend their employment for cause.

In protecting individual employees, the PSGB provides an important control

over the actions of deputy mini sters and their delegates and ensures general c om-

pliance with the terms and conditions of employment approved by the elected

government. While the PSGB is intended to red ress the imbalance in power be-

tween non-union employees and the employer, it is not a forum for reviewing

the government’s employment policies. Its function is to prov ide rulings in per-

sonal grievance s, not to make policy decisions in the abstract .

e PSGB has three broad func tions: contractual dispute resolution; regu la-

tion of delegated managerial authority; and protection of the political-activity

rights provided in the PSA. e PSGB ensures that employees are treated in ac-

cordance with the PSA. e PSGB also enforces rights and benets provided i n

Orders-in-Council, Management Board of Cabinet (MBC) directives, employer

policies and underta kings. e MBC Human Resources Management Directive

includes, among the va lues and principles that a re to be reected in the govern-

ment’s human resource practices, t he value of fairness and the pri nciple that each

public serva nt has the right to equa l treatment. e PSGB holds management to

these values and principles, and to a common law standard of administrative

fairness, when dea ling with individua l employees.

When it was created in , the PSGB was the only avenue public ser vants

had to enforce their employment terms. At the ti me, there was still a judicial ac-

ceptance that public servants were employed at pleasure, jud icial review of gov-

ernment employment decisions was highly restricted and consequently public

servants had very limited legal protection. Now, due to recent court decisions,

it is apparent that, in the absence of the PSGB having jurisdict ion, and in some

cases as an a lternative to the PSGB, public servants can s eek relief in the courts.

e development of the administrative law doctrine of procedural fairness and

 Mor rison and Ontario Human Rig hts Commission, PSGB  P//, August , 

(Lynk) at .

 Brown and Ministr y of Correctional Serv ices, PSGB  P//, April ,  (Pres-

grave) at .

 Callaghan and Minis try of Agricultural and Food , PSGB  P//, January , 

(Willes).

 D aSilva and Ministry of Health, P SGB  P//, April ,  (Leighton) at , De-

cember ,  (Leighton) at  ; A Grievor and Ministry of He alth, P//, August

,  (Springate) at – (quoted in September ,  decision at –). is does not

imply management wi ll be held to the standa rd of an independent adjudicative t ribunal.

A Grievor, Ibid., Augu st ,  at , September ,  at .

R.R.O. , Reg. ; O. Reg. /, s. .

 Ridge v. Baldwin, []  All E.R . ; Clarke v. Ontario, []  O.R. ,  D.L.R. (d)

 (C.A.).

 Wells v. Newfoundland, []  S.C.R. [Wells]; Burges s v. Ontario (Ministry of Health)

(),  O.R. (d)  (C.A.) [Burgess].

Chapter : Public Se rvice Grievance Board

the application by the cour ts of the pragmatic and funct ional test to determine a

st an da rd o f su bst a nti ve r ev ie w of a w ide sp ect ru m o f m in ist er ia l de ci sio ns , me an s

that decision-making under t he PSA will be subject to judicial review unless the

PSGB is availa ble and recognized as prov iding a reasonable alternat ive remedy.

Consequently, if the PSGB is to provide a single , coherent, set of standards for the

administration of employment in the non-unionized part of the public service,

its jurisdiction must have sucient scope over the system and it must have ad-

equate remedial authority to at tract the deference of the courts.

In conducting its separ ate functions the PSGB supervises d ierent levels of au-

thority. Its jur isdiction to protect politica l-activit y rights ows f rom the PSA and pro-

tects all levels of non-bargain ing unit employees from partisan politica l inuence by

both the elected executive and all levels of public service management. e PSGB’s

jurisdiction to enforce employment agreements and regu late the conduct of delegated

manageri al function s generally covers t he enforcement of polic y directions is sued or

approved by the elected executive or the senior mana gement of the public service, but

occasionally involves enforcement of agreements made by lower-level management

representatives with at lea st ostensible authority to agree to the term of employment

in issue. In eect, the PSGB’s role is to review and regulate the conduct of deputy

ministers and t heir delegates and ensure compliance with the PSA a nd regulations.

Unlike the GSB and most labour arbitrators, the PSGB routinely addresses the

grievances of managers and, on occasion, executives. e PSGB is therefore called

upon to determi ne the standards of conduc t and considerations appropriate to pe r-

sons who have managerial or executive authorit y. e PSGB’s role in respect of senior

managers is l imited. Senior manager s may be released on reasonable notice w ithout

recourse to the PSGB. ey may not grie ve working conditions. e PSGB’s jurisdic-

tion is only engaged when the employer puts alle ged misconduct by a senior manager

in issue by t aking di sciplinary action by way of suspe nsion or dismissa l. e rights of

senior managers are le largely to t he protection of the courts and the CSC.

B. JURISPRUDENCE

Like other administrative tribunals, its previous awards do not bind the PSGB,

but it seeks to make decisions that are “clear, fair, consistent, respectful of the

Se e Chapter  at .

e PSGB’s jurispr udence under its power to enforce work ing conditions and terms of

employment anticipate d the Supreme Court’s decision in Wells, above note  , that found

that public ser vants have an employment contrac t, the terms of which mus t be inferred

from the statute , regulations, pol icies and other circum stances of their employ ment.

e PS GB’s decisions since  are availa ble on QL. Prior decisions can be obt ained

from the PSGB. Sele cted decisions are avai lable on the PGSB web site.

 Scott et al. and Mini stry of Transportation, PSGB  P//, March ,  (Lynk) at

 [Scott].